Jimenez-Vega v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTONIO JIMENEZ-VEGA, Criminal Case No.: 19cr4186-JAH-1 Civil Case No.: 20cv00531-JAH 12 Petitioner, 13 v. ORDER DISMISSING MOTION TO VACATE PURSUANT TO 28 U.S.C. § 14 UNITED STATES OF AMERICA, 2255 15 Respondent. [Doc. No. 78] 16 17 On March 5, 2020, Petitioner Antonio Jimenez-Vega (“Petitioner”) filed Motion to 18 Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. See Doc. No. 78. 19 Petitioner pled guilty to transportation of an alien into the United States without 20 authorization in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and was sentenced to a prison 21 term of 36 months. See Doc. Nos. 40, 72. 22 Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, a court must 23 dismiss a § 2255 Motion if it plainly appears the moving party is not entitled to relief, or 24 else order the Government to Respond. In Petitioner’s Motion he raises no grounds for 25 modifying his sentence whatsoever. See Doc. No. 78. In fact, Petitioner provides no more 26 than case identifying information and a bare statement that he is seeking to collaterally 27 attack his conviction. Id. Furthermore, Petitioner waived his right to appeal or collaterally 28 attack his judgment and sentence when he pled guilty. See Doc. No. 40. 1 A knowing and voluntary waiver of a statutory right is enforceable. United States v. 2 Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally attack a 3 sentence pursuant to 28 U.S.C. § 2255 is statutory in nature, and a defendant may therefore 4 waive the right to file a section 2255 petition. See, e.g., United States of America v. Abarca, 5 985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering a plea agreement whereby 6 defendant waived right to appeal his sentence, defendant relinquished right to directly or 7 collaterally attack his sentence on the ground of newly discovered exculpatory evidence). 8 The scope of a section 2255 waiver may be subject to potential limitations. For 9 example, a defendant’s waiver will not bar an appeal if the trial court did not satisfy certain 10 requirements under Federal Rule of Criminal Procedure 11 to ensure that the waiver was 11 knowingly and voluntarily made. Navarro-Botello, 912 F.2d at 321. Such a waiver might 12 also be ineffective where the sentence imposed is not in accordance with the negotiated 13 agreement or violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 14 1996). Additionally, a waiver may be “unenforceable” and may not “categorically 15 foreclose” a defendant from bringing section 2255 proceedings where a petitioner claims 16 ineffective assistance of counsel challenging the voluntariness of the waiver. Washington 17 v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005); Abarca, 985 F.2d at 1014; see also, United 18 States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). 19 In pleading guilty, Petitioner reserved only 1) the right to appeal a custodial sentence 20 above the high end of the guideline range recommended by the Government at sentencing 21 and, 2) the right to collaterally attack his conviction or sentence on the basis that he 22 received ineffective assistance of counsel. See Doc. No. 40. However, in seeking to 23 collaterally attack his conviction and sentence, Petitioner does not claim he received 24 ineffective assistance of counsel. Neither does Petitioner assert this Court failed to satisfy 25 the requirements under Federal Rule of Criminal Procedure 11 to ensure Petitioner 26 knowingly and voluntarily waived his right to collaterally attack his judgment and 27 sentence. Nor does Petitioner claim his sentence was not in accordance with the negotiated 28 plea agreement or that his sentence violates the law. In sum, Petitioner fails to assert that 1 ||his waiver was not knowing or voluntary, because his motion fails to make any claim 2 || whatsoever. 3 Since the instant section 2255 motion is a collateral attack on Petitioner’s conviction 4 sentence, it falls within the parameters of Petitioner’s waiver and must be dismissed. 5 Furthermore, because the motion is meritless on its face, the Court has not ordered the 6 || Government to respond to the petition. USC Sec. 2255 Proc R 4(b). 7 Accordingly, IT IS HEREBY ORDERED, Petitioner’s Motion is DISMISSED 8 || pursuant to Rule 4(b), Rules Governing § 2255 Proceedings for the United States District 9 || Courts. The Clerk of Court shall send a copy of this Order to Defendant at the address on 10 || file. 11 IT IS SO ORDERED. 12 13 14 || DATED: May 14, 2021 16 7 OHN A. HOUSTON // UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28