1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA EVE CASTRO, ) Case No.: 3:19-cv-00749-BEN 12 Movant, ) 3:17-cr-00414-BEN-1 ) 13 v. ) ORDER DENYING MOTION TO ) VACATE, SET ASIDE, OR 14 UNITED STATES OF AMERICA, ) CORRECT SENTENCE UNDER 15 Respondent. ) 28 U.S.C. § 2255 ) 16 ) [ECF No. 1] 17 ) 18 I. INTRODUCTION 19 Before the Court is Petitioner Christina Eva Castro’s (“Movant” or “Petitioner”) 20 motion, pro se1, pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence 21 of 120 months’ imprisonment and five years of supervised release, resulting from her 22 felony conviction for Importation of Methamphetamine, in violation of 21 U.S.C. §§ 952 23 and 960. CV ECF No.2 1; ECF No. 49. Respondent United States of America 24
25 1 In reviewing Petitioner’s motion, the Court is mindful that, “[a] document filed pro se is to be liberally construed … and a pro se [pleading], however inartfully pleaded, must 26 be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 27 Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). 2 All docket citations refer to the criminal case docket, Case No. 3:17-cr-00414-BEN- 28 1 (“Respondent” or the “Government”) opposes. ECF No. 43. 2 After considering the papers submitted, supporting documentation, and applicable 3 law, the Court DENIES Petitioner’s Motion. 4 II. BACKGROUND 5 A. Statement of Facts 6 On November 20, 2016, Petitioner, a United States citizen, entered the United 7 States from Mexico at the San Ysidro, California, Port of Entry, as the driver of a Nissan 8 Rogue, with her six year old daughter as the passenger. ECF No. 32 at 4; see also ECF 9 No. 42 at 1. The vehicle was registered to Mark Mendoza, who Petitioner’s daughter 10 advised was Petitioner’s boyfriend. ECF No. 32 at 4. During a pre-primary inspection, a 11 canine alerted to the floor of the vehicle. Id. Petitioner stated she was traveling home to 12 Fresno, California, after visiting her uncles in Mexico. Id. The vehicle was referred to 13 secondary for further inspection. Id. 14 Agents recovered a total of 26 packages concealed under the interior bottom floor 15 of the carpet, which Drug Enforcement Administration laboratory analysis confirmed was 16 11.48 kilograms of methamphetamine (actual). ECF No. 32 at 4. Petitioner was arrested 17 and declined to provide any statements without an attorney present. Id. Petitioner’s 18 daughter was turned over to Child Protective Services in San Diego, California. Id. 19 The case agent indicated that Petitioner had several crossings into Mexico during 20 November 2016, noted the long distance of travel between the Fresno area and Mexico, 21 and added that the text messages recovered from her telephone indicated Petitioner might 22 have been selling small amounts of narcotics and had knowledge of crossing narcotics 23 during the offense. ECF No. 32 at 5. 24 B. Procedural History 25 On February 16, 2017, the Government filed a one-count indictment charging 26 Petitioner with violation of 21 U.S.C. §§ 952 and 960, Importation of Methamphetamine. 27 ECF No. 1. The grand jury indictment charged Petitioner with knowingly and 28 intentionally importing approximately 32.80 pounds “of a mixture and substance 1 containing a detectable amount of methamphetamine, a Schedule II Controlled Substance, 2 into the United States from a place outside thereof; in violation of Title 21, United States 3 Code, Sections 952 and 960.” ECF No. 1 at 1. 4 On April 16, 2018, Petitioner entered into a plea agreement with the Government, 5 in which she waived “all rights to appeal and to collaterally attack every aspect of the 6 conviction and sentence.” ECF No. 29 at 9. However, the plea agreement contained 7 exceptions, which allowed her to appeal (1) “a custodial sentence above the greater of 71 8 months or the mandatory minimum term, if applicable” or (2) “the conviction or sentence 9 on the basis that defendant received ineffective assistance of counsel.” Id. at 9-10. That 10 same day, April 16, 2018, Petitioner entered her guilty plea before the Hon. Karen 11 Crawford. ECF No. 52. Also on that same day, Judge Crawford issued a findings and 12 recommendation to accept Petitioner’s guilty plea. ECF No. 30. After no objections were 13 filed, the Court accepted the Findings and Recommendation of the Magistrate Judge and 14 accepted Petitioner’s guilty plea. ECF No. 33. 15 On September 7, 2018, this Court sentenced Petitioner to 120 months in prison. 16 ECF No. 51 at 4:19-25. As part of Petitioner’s plea agreement, the parties agreed to 17 jointly recommend Petitioner’s sentencing be based on the following U.S. Sentencing 18 Guidelines Base Offense Level, Specific Offense Characteristics, Adjustments, and 19 Departures: 20 1. Base Offense Level [USSG § 2D1.1] 38* 2. Importation of Methamphetamine [USSG § 2D1.1(b)(5)] +2 21 3. Acceptance of Responsibility [USSG § 3E1.1] -3 22 ECF No. 29 at p. 7. At sentencing, the Government complied with the plea agreement by 23 recommending the above Guideline calculations. ECF No. 51 at 2:15-21. 24 On April 22, 2019, Petitioner filed the instant Motion to Reduce her Sentence. ECF 25 No. 49 at 13. Petitioner seeks to vacate or correct her sentence on the grounds of ineffective 26 assistance of counsel. See generally ECF No. 49. On June 7, 2019, this Court issued an 27 Order setting a briefing schedule, ordering (1) the Government to respond by July 19, 2019 28 and (2) Petitioner to file any reply brief by August 30, 2019. ECF No. 50. On July 22, 1 2019, the Government filed an opposition. ECF No. 53. Petitioner did not file a reply 2 brief. 3 On August 7, 2019, the Court issued an Order requiring Petitioner to respond in 4 writing as to whether she desires to (1) pursue her habeas petition, and as a result, waive 5 attorney-client privilege or (2) abandon her petition in order to avoid the waiver of 6 attorney-client privilege. ECF No. 54 at 1. The Court further ordered that if Petitioner 7 failed to respond by August 22, 2019, the attorney-client privilege as to all communications 8 between Petitioner and her attorney, Nicholas DePento (“Mr. DePento”), would be deemed 9 waived. Id. Petitioner did not file a response, and as such, waived attorney-client privilege. 10 Id. Accordingly, on September 26, 2019, the Government filed a Supplemental Response 11 in Opposition to Petitioner’s Motion. ECF No. 55. This response attached a declaration 12 from Mr. DePento. 13 In Mr. DePento’s declaration,3 he states, under penalty of perjury, that as part of his 14 representation, he: (1) “reviewed all of the evidence provided by the United States and 15 from her former lawyer in discovery so that [he] . . . could properly evaluate the merits of 16 the case and determine whether any motions should be filed,” ECF No. 55-1 at 2, ¶ 5; (2) 17 “did not identify any motions that could be filed related to the evidence, including any 18 motions to suppress or otherwise exclude any of the evidence,” despite reviewing all of the 19 evidence, id. at 2, ¶ 6; (3) “reviewed all of the evidence with her prior to her decision to 20 21 3 The Court notes that not only did Petitioner waive attorney-client privilege by failing 22 to respond to the Court with respect to this issue by the Court-ordered deadline, see Order, 23 ECF No. 54, but by virtue of basing her motion on the grounds of ineffective assistance of counsel, she waived attorney-client privilege between Mr. DePento and herself as a matter 24 of law. See, e.g., Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (providing that 25 “where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer”); 26 Alvarez v. Woodford, 81 F. App’x 119, 120 (9th Cir. 2003) (providing that “[a] habeas 27 petitioner cannot raise a claim of ineffectiveness against his trial counsel while at the same time asserting that documents relevant to that claim are protected by the attorney-client 28 1 plead guilty in this case by reading and reviewing all of the reports that pertained to her 2 and her activities,” ECF No. 55-1 at 2, ¶ 7; (4) arranged a meeting on April 10, 2018 3 between Petitioner, himself, and counsel for the Government and agents, “so that counsel 4 for the United States could review the evidence with Ms. Castro,” id. at 2, ¶ 8; (5) 5 “negotiated a plea agreement with counsel for the United States that required the United 6 States to recommend a sentence of 120 months’ custody in exchange for Ms. Castro’s 7 guilty plea and agreement to waive her right to appeal or collaterally attack the conviction, 8 except under certain limited circumstances,” id. at 3, ¶ 11; (6) “discussed all of Ms. Castro’s 9 options” with her, explaining “that she could go to trial, plead guilty without a plea 10 agreement or plead guilty with a plea agreement,” id. at 3, ¶ 12; (7) discussed with 11 Petitioner that if she signed the plea agreement, “she would be waiving her right to appeal 12 or collaterally attack the conviction or the sentence in exchange for a more favorable 13 sentencing recommendation from the United States,” id. at 3, ¶ 13; (8) explained to 14 Petitioner “that she would only be permitted to appeal or collaterally attack the conviction 15 and/or her sentence if the Court sentenced her above the statutory mandatory minimum 16 term (120 months’ custody) or the basis of her challenge was ineffective assistance of 17 counsel,” id. at 3, ¶ 13; (9) witnessed Petitioner confirm to him that “she understood and 18 was in complete agreement with waiving her appeal and collateral attack rights in exchange 19 for a lower sentencing recommendation from the United States,” id. at 3, ¶ 13; (10) “did 20 not tell her that signing the plea agreement was her only option and that no other choice 21 was available to her,” but instead, “explained to her that ultimately the decision of whether 22 to plead guilty or go to trial was hers and that [he] . . . would represent her regardless of 23 her decision,” id. at 4, ¶ 15; (11) was never advised by Petitioner that she wished for him 24 to file a notice of appeal, id. at 4, ¶ 17; and (12) would have initially advised against an 25 appeal if Petitioner had asked him for one because it would likely be barred by the waiver 26 provisions in the plea agreement and might be considered a breach of the agreement, but 27 nevertheless, would have filed one on her behalf in a timely manner if she had persisted in 28 her request, id. at 4, ¶ 18. 1 III. LEGAL STANDARD 2 “A motion to attack a prison sentence made under section 2255 is a federal 3 prisoner’s substitute for a petition for a writ of habeas corpus.” Josephine R. Potuto, The 4 Federal Prisoner Collateral Attack: Requiescat in Pace, 1988 B.Y.U. L. Rev. 37, 37 5 (1988). Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 6 in violation of the Constitution or the laws of the United States; (2) was given by a court 7 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 8 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 9 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). 10 If it is clear the movant has failed to state a claim, or has “no more than conclusory 11 allegations, unsupported by facts and refuted by the record,” a district court may deny a 12 § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 13 (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (providing that 14 “if the record refutes the applicant’s factual allegations or otherwise precludes habeas 15 relief, a district court is not required to hold an evidentiary hearing”). Courts may deny 16 a hearing where “the petitioner’s allegations, viewed against the record, fail to state a 17 claim for relief or are so palpably incredible or patently frivolous as to warrant summary 18 dismissal.” United States v. McMullen, 98 F.3d 1155, 1158–59 (9th Cir. 1996) (rejecting 19 the appellant’s contention that the district court erred by denying the appellant an 20 evidentiary hearing on his ineffective assistance of counsel claim because the appellant 21 failed to allege specific facts entitling him to relief) (internal quotations and citations 22 omitted). The right to a hearing is earned by alleging “specific facts which, if true, would 23 entitle him [or her] to relief.” Id. 24 The Ninth Circuit has “consistently held that a § 2255 petitioner cannot challenge 25 nonconstitutional sentencing errors if such errors were not challenged in an earlier 26 proceeding.” See, e.g., McMullen, 98 F.3d at 1157 (holding that the because the appellant 27 “failed to raise any objection regarding the type of methamphetamine, either at sentencing 28 or on direct appeal, he is barred from raising this issue in a § 2255 motion,” and “the 1 district court properly denied his motion to vacate his sentence on this ground”). Thus, 2 “Petitioners waive the right to object in collateral proceedings unless they make a proper 3 objection before the district court or in a direct appeal from the sentencing decision.” Id. 4 IV. DISCUSSION 5 Movant argues that her plea should be vacated under 28 U.S.C. § 2255 because her 6 counsel provided ineffective assistance to her in violation of her Sixth Amendment rights. 7 CV ECF No. 1. The Government responds that Petitioner’s Motion should be denied 8 because (1) Petitioner waiver her right to collaterally attack her sentence, ECF No. 53 at 9 9:24, (2) Petitioner’s claims are procedurally defaulted, id. at 12:7, (3) Petitioner fails to 10 provide facts to support her claims of ineffective assistance of counsel, id. at 15:1, and (4) 11 Petitioner’s claims are belied by the facts in the record, id. at 15:7. Although the Court 12 disagrees that Petitioner waived her right to collaterally attack her sentence given her 13 waiver contained an exception for an attack based on ineffective assistance of counsel, 14 the Court agrees with the remainder of the Government’s Motion. Accordingly, 15 Petitioner’s Motion is DENIED. As outlined below, although Petitioner’s claims are 16 timely and the waiver in her plea agreement contained an exception for claims of 17 ineffective assistance of counsel, most of Petitioner’s claims are barred due to procedural 18 default. Further, Petitioner has not set forth cause or prejudice sufficient to overcome her 19 procedural default because her claims of ineffective assistance of counsel not only lack 20 credibility but are belied by the record in this case. 21 A. Petitioner’s Claims Are Timely 22 A motion to vacate must be filed within one year from the date the conviction 23 becomes final. 28 U.S.C. § 2255(f) (providing that “[a] 1-year period of limitation shall 24 apply to a motion under this section,” which will run from, inter alia, the date on which 25 “the judgment of conviction becomes final”). A conviction becomes final once the 26 deadline for filing the notice of appeal has expired. United States v. Gilbert, 807 F.3d 27 1197, 1199 (9th Cir. 2015) (noting that the sentence “became a final judgment for habeas 28 purposes once the deadline for filing the notice of appeal expired 14 days later”); see also 1 FED. R. APP. P. 4(b)(1)(A) (providing that “[i]n a criminal case, a defendant’s notice of 2 appeal must be filed in the district court within 14 days after the later of . . . the entry of 3 judgment”). 4 Here, Petitioner did not file a notice of appeal. CV ECF No. 1 at 3. Thus, 5 Petitioner’s conviction became final on October 3, 2018, or fourteen (14) days after entry 6 of the judgment on September 19, 2018. ECF No. 45. Accordingly, the statute of 7 limitations period for Petitioner to file a motion to vacate under 28 U.S.C. § 2255 ended 8 October 3, 2019. 9 On April 22, 2019, Movant filed the instant Motion to Reduce her Sentence. ECF 10 No. 49 at 13. As a result, because she filed before the October 3, 2019 deadline, her Motion 11 is not time-barred. However, Petitioner’s failure to appeal raises a related issue of whether 12 her Motion is barred by procedural default. 13 B. All But One of Petitioner’s Claims Are Barred Due to Procedural Default 14 The Government claims that “Castro’s habeas petition is . . . barred because she 15 failed to raise any claim on direct appeal.” ECF No. 54 at 12:8-9. Petitioner neither 16 addressed this issue in her original Motion nor addressed it in a reply brief. 17 “The general rule in federal habeas cases is that a defendant who fails to raise a claim 18 on direct appeal is barred from raising the claim on collateral review.” Sanchez-Llamas v. 19 Oregon, 548 U.S. 331, 350–51 (2006). “Where a defendant has procedurally defaulted a 20 claim by failing to raise it on direct review, the claim may be raised in habeas only if the 21 defendant can first demonstrate either [1] ‘cause’ and actual ‘prejudice,’ or that [2] he is 22 ‘actually innocent.’” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations 23 omitted); see also Sanchez-Llamas, 548 U.S. at 350-51 (same); United States v. Ratigan, 24 351 F.3d 957, 962 (9th Cir. 2003) (holding that “[a] § 2255 movant procedurally defaults 25 his claims by not raising them on direct appeal and not showing cause and prejudice or 26 actual innocence in response to the default”). Here, Petitioner’s Motion makes no claims 27 of actual innocence, which would contradict the record in this case, including her guilty 28 plea. See CV ECF No. 1. As such, Petitioner must make a showing of cause and actual 1 prejudice to overcome her procedural default. 2 “Constitutionally ineffective assistance of counsel constitutes cause sufficient to 3 excuse a procedural default.” Ratigan, 351 F.3d at 964–65; see also Potuto, B.Y.U. L. 4 Rev. 37 (providing that “[t]he Supreme Court so far has recognized only two claims for 5 cause sufficient to permit collateral review despite a default: (1) ineffective assistance of 6 counsel, and (2) an objective factor ‘external to the defense’ that produced the default”). 7 Thus, in order to excuse her procedural default, a petitioner “must show that counsel’s 8 performance was deficient and that the deficient performance prejudiced the 9 defense.” Ratigan, 351 F.3d at 965 (citing Strickland v. Washington, 466 U.S. 668, 687 10 (1984)). In Ratigan, the petitioner argued his counsel’s performance was deficient because 11 he failed to object to certain issues, namely, the insufficiency of proof offered by the 12 government. Id. at 965. Nonetheless, the Court did not find this potential failing on the 13 defense counsel’s part to warrant overcoming the procedural default: “His counsel’s failure 14 to recognize every possible legal argument, including the arguably insufficient proof 15 offered by the government as to one element of the crime, does not, however, constitute 16 cause.” Id. Rather, “the mere fact that counsel failed to recognize the factual or legal basis 17 for the claim, or failed to raise the claim despite recognizing it, does not constitute cause 18 for a procedural default.” Id. (citing Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003)). 19 Thus, the Ratigan court concluded that the alleged errors were not so serious as to deprive 20 the appellant of a fair trial, and as a result, the ineffective assistance claim was not 21 supported by the record. Id. at 965. Accordingly, the appellant “failed to show that he 22 should be excused from his procedural default.” Id. at 965. Similarly, in United States v. 23 McMullen, the Ninth Circuit held that the because the appellant “failed to raise any 24 objection regarding the type of methamphetamine, either at sentencing or on direct appeal, 25 he [was] . . . barred from raising this issue in a § 2255 motion.” 98 F.3d at 1157. As a 26 result, the Ninth Circuit held that “the district court properly denied his motion to vacate 27 his sentence on this ground.” Id. 28 Here, just like the petitioners in Ratigan and McMullen, who also tried to raise 1 ineffective assistance of counsel claims through a 2255 motion without having raised the 2 claim on a direct appeal first, Petitioner did not file a notice of appeal. CV ECF No. 1 at 3 3. Thus, Petitioner’s Motion, like the motions in Ratigan and McMullen, must be denied 4 unless she can create a showing of cause or prejudice. However, for the reasons outlined 5 below, the Court finds that Petitioner has made no such showing. As a result, all of her 6 claims, other than her second claim that her attorney failed to show her all of the discovery 7 so she could make a meaningful decision as to whether to enter into her plea agreement, 8 have fallen victim to the bar of procedural default. See, e.g. Washington v. Lampert, 422 9 F.3d 864, 870 (9th Cir. 2005) (holding that “in the context of § 2255 challenges brought 10 by federal prisoners, that waivers cannot bar IAC claims associated with the negotiation of 11 plea agreements”). However, as analyzed below, Petitioner, nonetheless, fails to establish 12 ineffective assistance of counsel as to that claim as well. 13 C. Petitioner’s Claims Have Not Been Waived Under the Plea Agreement 14 The Government argues that Petitioner’s “habeas petition should be dismissed 15 because, with the advice and consent of her attorney, she knowingly and voluntarily waived 16 her right to collaterally attack her conviction and sentence.” ECF No. 53 at 9:25-27. 17 “A defendant’s waiver of his rights to appeal and to bring a collateral attack is 18 generally enforced if ‘(1) the language of the waiver encompasses his right to appeal on 19 the grounds raised, and (2) the waiver is knowingly and voluntarily made.’” Davies v. 20 Benov, 856 F.3d 1243, 1246-47 (9th Cir. 2017). “Claims that the plea or waiver itself was 21 involuntary or that ineffective assistance of counsel rendered the plea or waiver 22 involuntary, however, may not be waived.” Id. at 1247. 23 On the one hand, the Court agrees that to the extent Petitioner attempts to collaterally 24 attack her conviction or sentence, she waived her right to do so. See United States v. 25 Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (providing that “if it is not a due 26 process violation for a defendant to waive constitutional rights as part of a plea bargain, 27 then a defendant’s waiver of a nonconstitutional right, such as the statutory right to appeal 28 a sentence, is also waivable”); United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) 1 (“[P]lea agreements are contractual in nature and are measured by contract law standards”) 2 (internal quotations omitted). In the written plea agreement, Petitioner “waive[d], to the 3 full extent of the law, any right to appeal or to collaterally attack the conviction and 4 sentence, including any restitution order.” ECF No. 29 at 9-10. Further, Petitioner 5 confirmed this agreement with the Court during the plea colloquy and at sentencing. Plea 6 Colloquy, ECF No. 52 at 7:17-23; Sentencing Hearing, ECF No. 51 at 8:9-11. On the other 7 hand, Petitioner’s Plea Agreement carved out an exception to allow Petitioner to seek to 8 vacate, correct, or reduce her to appeal (1) “a custodial sentence above the greater of 71 9 months or the mandatory minimum term, if applicable” or (2) “the conviction or sentence 10 on the basis that defendant received ineffective assistance of counsel.” ECF No. 29 at 9- 11 10. Here, the greater of 71 months or the mandatory minimum term, is the mandatory 12 minimum term, which is 120 months. Thus, because Petitioner’s sentence does not exceed 13 the mandatory minimum, she is barred from collaterally attacking the sentence under the 14 first exception. This leaves only one basis to attack her sentence: ineffective assistance of 15 counsel. Consequently, a claim of ineffective assistance of counsel was preserved for 16 collateral attack. The Government argues that the Court should summarily dismiss 17 Petitioner’s claims of ineffective assistance of counsel because Petitioner “acknowledged 18 that before she initially each page and signed the plea agreement she went over all the terms 19 of the plea agreement with her counsel,” and therefore, could not have had ineffective 20 assistance of counsel. ECF No. 53 at 11:6-8. Although the Court finds this argument 21 persuasive, it also believes that because Petitioner raised a constitutional claim arising 22 under the Sixth Amendment, the Court is obligated to review that claim. 23 D. Petitioner Has Not Established Ineffective Assistance of Counsel 24 “The Sixth Amendment, applicable to the States by the terms of the Fourteenth 25 Amendment, provides that the accused shall have the assistance of counsel in all criminal 26 prosecutions.” Missouri v. Frye, 566 U.S. 134, 138 (2012). That “right to counsel is the 27 right to effective assistance of counsel,” Missouri, 566 at 138 (citing Strickland v. 28 Washington, 466 U.S. 668, 686 (1984)), and applies to all critical stages of criminal 1 proceedings, including “the consideration of plea offers.” Missouri, 566 U.S. at 138. 2 The Supreme Court has held “that the two-part Strickland v. Washington test applies 3 to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 4 474 U.S. 52, 58–59 (1985); see also Missouri, 566 U.S. at 138 (same). Under this test, “a 5 defendant who pleads guilty upon the advice of counsel may only attack the voluntary and 6 intelligent character of the guilty plea by showing that the advice he received from counsel 7 was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004) (quoting Hill, 8 474 U.S. at 56–57); see also Tollett v. Henderson, 411 U.S. 258, 266 (1973) (providing 9 that “after a criminal defendant pleads guilty, on the advice of counsel, he is not 10 automatically entitled to federal collateral relief”; rather, “[t]he focus of federal habeas 11 inquiry is the nature of the advice and the voluntariness of the plea, not the existence as 12 such of an antecedent constitutional infirmity”). Thus, in a claim of ineffective assistance 13 of counsel arising out of a defendant’s guilty plea, the defendant must meet the Strickland 14 test by showing that (1) under an objective standard, “counsel’s assistance was not within 15 the range of competence demanded of counsel in criminal cases” and (2) the defendant 16 suffered actual prejudice because of this incompetence. Lambert, 393 F.3d at 979–80; 17 Lockhart, 474 U.S. at 57–58. “Unless a defendant makes both showings, it cannot be said 18 that the conviction . . . resulted from a breakdown in the adversary process that renders the 19 result unreliable.” Strickland, 466 U.S. at 687. 20 With respect to the first factor, “[w]hen a convicted defendant complains of the 21 ineffectiveness of counsel’s assistance, the defendant must show that counsel’s 22 representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 23 687-88. This involves proving “that counsel’s performance was deficient,” by “showing 24 that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 25 guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also 26 Iaea v. Sunnn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland). Accordingly, courts 27 review claims of ineffective assistance of counsel under a “strong presumption that 28 counsel’s conduct falls within the wide range of reasonable professional assistance.” 1 Staten v. Davis, 962 F.3d 487, 495 (9th Cir. 2020); see also Strickland, 466 U.S. at 689 2 (providing that “[j]udicial scrutiny of counsel’s performance must be highly deferential”). 3 The Court should not view counsel’s actions through “the distorting lens of hindsight.” 4 Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) (quoting Deutscher v. Whitley, 5 884 F.2d 1152, 1159 (9th Cir. 1989)), vacated on other grounds by Angelone v. Deutscher, 6 500 U.S. 901 (1991). 7 As to the second factor, “in order to satisfy the ‘prejudice’ requirement, the 8 defendant must show that there is a reasonable probability that, but for counsel’s errors, he 9 would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. 10 at 58–59. “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a 11 defendant has the assistance necessary to justify reliance on the outcome of the 12 proceeding.” Strickland, 466 U.S. at 691-92. “A convicted defendant making a claim of 13 ineffective assistance must identify the acts or omissions of counsel that are alleged not to 14 have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690. 15 Then, the court must evaluate “whether, in light of all the circumstances, the identified acts 16 or omissions were outside the wide range of professionally competent assistance.” Id. 17 While the Court would normally analyze a claim of ineffective assistance of counsel 18 under the two-pronged test set forth by the Strickland court, Petitioner made no specific 19 claims of prejudice. Instead, Petitioner claimed general ineffective assistance of counsel 20 arising out of her allegations that Mr. DePento failed to (1) perform an essential duty by 21 securing a better sentencing outcome for her, ECF No. 49 at 5, (2) provide her with 22 discovery so she could evaluate whether to proceed to trial, id. at 6, (3) failed to object to 23 or suppress evidence presented by the Government, which had he done so, could have 24 changed the result of Petitioner’s case, id. at 8, and (4) advise Petitioner of her rights to an 25 appeal, id. at 9. The Government responds that the Court should deny Petitioner’s Motion 26 because Petitioner (1) fails to identify what essential duty her counsel failed to perform, 27 (2) was specifically advised of her right to go to trial, (3) fails to identify what piece of 28 evidence, if any, she believes her counsel should have moved to suppress, and (4) agreed 1 to waive her right to an appeal in exchange for the plea agreement. ECF No. 53 at 2:9-14. 2 In Hill, the defendant alleged that his counsel had provided inadequate advice 3 regarding his guilty plea, including information regarding parole eligibility. Hill, 474 U.S. 4 at 60. However, the Supreme Court noted that “Petitioner did not allege in his habeas 5 petition that, had counsel correctly informed him about his parole eligibility date, he would 6 have pleaded not guilty and insisted on going to trial.” Hill, 474 U.S. at 60. Similar to the 7 Hill defendant that failed to allege that had his counsel informed him of a certain fact, it 8 would have changed his decision to enter a guilty plea, Petitioner does not allege that she 9 would have proceeded to trial instead of pleading guilty had Mr. DePento (1) presented her 10 with some identifiable piece of evidence, (2) filed a motion to suppress some identifiable 11 piece of evidence that would have been appropriate for exclusion under the law, and (3) 12 informed her that she was waiving her right to appeal. In fact, Petitioner could have 13 appealed the sentence here but failed to do so. Further, the record indicates she was 14 informed numerous times that she had a right to appeal and was waiving that right as part 15 of her plea agreement. As a result, just as the Supreme Court determined that the Hill 16 defendant’s claims of ineffective assistance counsel failed, the Court finds that Petitioner’s 17 claims fail for the same reasons. As set forth below, the record contradicts each of 18 Petitioner’s claims of ineffective assistance of counsel. 19 1. Alleged Failure to Perform an Essential Duty (Secure a Favorable Adjustment) 20 Petitioner argues that Mr. DePento failed to perform an essential duty, citing to 21 Strickland v. Washington. ECF No. 49 at 5. She elaborates that “[w]here there is a 22 reasonable probability that Counsel’s unprofessional omissions [1] deprived a criminal 23 defendant of a substantive or procedural rigth [sic] or . . . a favorable downward adjustment 24 or departure” or “[2] failed to prevent an improper upward adjustment, in the defendant’s 25 sentencing under the Sentencing Guidelines, relevant statues, or Constitution, the 26 defendant’s sentence is violative of the Sixth Amendment Constitutional right to ‘Effective 27 Assistance of Counsel.’” Id. at 5 (citing United States v. Acklen, 47 F.3d 739, 742-744 (5th 28 1 Cir 1995)). As the Government correctly points out, although Petitioner alleges that Mr. 2 DePento failed to perform some essential duty, she simultaneously “fails to set forth what 3 essential duty that was.” ECF No. 53 at 2:2-3. The implication from the following sentence 4 is that some facet of Mr. DePento’s behavior “deprived her of a favorable adjustment.” 5 Petitioner appears to argue that Mr. DePento’s ineffective assistance of counsel 6 resulted in a less favorable sentencing outcome for her. During the Plea Colloquy, 7 however, the Government informed Petitioner that the maximum penalties for her crime 8 were “life in prison and a mandatory minimum of ten years in prison, a maximum 10- 9 million-dollar fine, a mandatory special assessment of $100 per count, a term of supervised 10 release of at least five years and up to life, and possible ineligibility for certain federal 11 benefits.” Plea Colloquy, ECF No. 52 at 5:8-15. Petitioner confirmed that she understood 12 the range of maximum penalties which could be imposed on her. Id. at 5:16-19. Later, at 13 the Sentencing Hearing, the Court reviewed the Sentencing Guidelines with Petitioner, 14 Sentencing Hearing, ECF No. 51 at 4:15-19, reminding Petitioner that she had been 15 “looking at a guideline of 262 months to 327 months,” id. at 51 at 2:22-25. However, the 16 Court noted that Mr. DePento did “an outstanding job [in negotiating the plea],” id. at 2:22- 17 25, and advised that “I don’t know that I would have gone much below 120 no matter what” 18 because “she does have [a] considerable prior criminal history,” id. at 3:8-10. 19 Defendant also confirmed on multiple occasions that she had a full opportunity to 20 discuss the case and consequences of the plea. Plea Agreement, ECF No. 29 at 5:7-15 21 (providing that “Defendant has had a full opportunity to discuss all the facts and 22 circumstances of this case with defense counsel, and has a clear understanding of the 23 charges and the consequences of this plea”); Plea Colloquy, ECF No. 52 at 4:24-5:5 24 (Petitioner confirmed she understood when directly asked if she understood that if her case 25 proceeded to trial, the Government would have been required to prove the elements of her 26 crime beyond a reasonable doubt, and because she is pleading guilty, the Government did 27 not need to do so); Sentencing Hearing, ECF No. 51 at 8:6-11 (Mr. DePento responded, 28 “Yes,” on Petitioner’s behalf when the Court asked Petitioner directly, “Do you 1 acknowledge you waived your right to appeal and collaterally attack”). 2 The plea agreement itself appears to be signed by Petitioner on April 10, 2018, ECF 3 No. 55-1 at 12, and Petitioner also confirmed she signed it at the Plea Colloquy, ECF No. 4 52 at 7:9-10. The plea agreement also states that “[b]y signing this agreement, defendant 5 certifies that defendant has read it (or that it has been read to defendant in defendant’s 6 native language)” and “has discussed the terms of this agreement with Defense counsel and 7 fully understands its meaning and effect.” ECF No. 55-1 at 11:1-6. Thus, Petitioner cannot 8 credibly claim that her plea was not voluntary or that she was unaware she was waiving 9 her right to appeal as part of her plea agreement.4 Petitioner was also asked whether anyone 10 threatened her to plead guilty and confirmed that no one had. Plea Colloquy, ECF No. 52 11 at 8:6-8. She was also asked whether anyone promised her anything other than what was 12 set forth in the plea agreement in exchange for her plea, and she confirmed that no one had. 13 Id. at 8:9-13. Thus, the magistrate judge found “that the defendant’s plea is made 14 knowingly and voluntarily with a full understanding of the nature of the charge, [her] . . . 15 rights, and the consequences of [her] . . . plea and that there is a factual basis for [her] . . . 16 plea.” ECF No. 52 at 9:24-10:4. Defendant further confirmed before the Magistrate Judge, 17 under penalty of perjury, that she was satisfied with Mr. DePento’s representation. Id. at 18 8:3-5 (Petitioner was asked directly by Magistrate Judge Crawford, “Are you satisfied with 19 the services that your lawyer has provided to you,” and responded with a clear, “Yes”). As 20 a result, ample evidence in the record confirms Petitioner’s plea was voluntarily and 21 22 4 Courts interpret plea agreements using ordinary rules of contract interpretation. See, 23 e.g., United States v. Medina-Carrasco, 815 F.3d 457, 462 (9th Cir. 2016) (providing that “[f]or the most part, we interpret plea agreements using the ordinary rules of contract 24 interpretation”) (quoting United States v. Cope, 527 F.3d 944, 949–50 (9th Cir. 2008)). As 25 a result, a party may not avoid the consequences of his or her plea agreement by claiming he or she did not read the entire agreement. See, e.g., Oregon-Pac. Forest Prod. Corp. v. 26 Welsh Panel Co., 248 F. Supp. 903, 908 (D. Or. 1965) (providing that “[i]t is no defense that a party, seeking to avoid the contract, did not read it”); Conyer v. Hula 27 Media Servs., LLC, 53 Cal. App. 5th 1189, 1197 (2020), review filed (Oct. 5, 2020) (noting that “[i]t has long been the rule in California that a party is bound by a contract even if 28 1 intelligently made. 2 Further, the Government notes that Mr. DePento “brokered a deal with the United 3 States, which benefitted Castro significantly” by securing the Government’s 4 recommendation of a 120 month sentence, the mandatory minimum for the offence with 5 which Petitioner was charged, “despite the fact that Castro’s sentencing guideline range 6 was 324 to 405 months.” ECF No. 53 at 4:10-15; see also ECF No. 55-1 at 3, ¶ 11 7 (providing that “[a] recommendation of 120 months’ custody from the United States 8 amounted to a downward departure of over 200 months from Ms. Castro’s sentencing 9 guideline range of 324 to 405 months based on her significant criminal history”). Thus, 10 “because of the Plea agreement, Castro received a sentencing recommendation from the 11 United States that was over 200 months lower than the low-end of her guideline range.” 12 ECF No. 53 at 4:16-19. Mr. DePento also stated at the Sentencing Hearing that he “tried 13 everything possible to try to get below the guideline levels.” Sentencing Hearing, ECF No. 14 51 at 2:19-21. The Court responded by commending Mr. DePento’s representation of 15 Petitioner. Id. at 2:22-25. 16 The Court agrees that Mr. DePento helped Petitioner secure a favorable adjustment. 17 The grand jury indictment charged Petitioner with knowingly and intentionally importing 18 approximately 32.80 pounds of methamphetamine. ECF No. 1 at 1. Because Petitioner 19 was charged with importing greater than 4.5 kilograms of methamphetamine under 21 20 U.S.C. §§ 952 and 960, she had a base offense level of 38. U.S. SENT’G GUIDELINES 21 MANUAL § 2D1.1. An offense level of 38 ranges from 2355 to life in prison, depending on 22 a defendant’s criminal history. U.S. SENT’G GUIDELINES MANUAL, SENTENCING TABLE. 23
24 5 The record indicates the parties did not agree as to Petitioner’s criminal history. ECF 25 No. 42 at 2:11. Although the parties did not agree on criminal history, the record also indicates that Petitioner does have a criminal history, ECF No. 51 at 3:9, and if she had 26 proceeded to trial, this may have factored into the Court’s sentence and increased it further. 27 However, because there was no agreement as to criminal history, the Court’s analysis operates under the assumption that Petitioner would have been given the benefit of the 28 1 However, her offense was increased by two levels, to an offense level of 40 because “the 2 offense involved the importation of . . . methamphetamine.” U.S. SENT’G GUIDELINES 3 MANUAL § 2D1.1(b)(5). However, only because Petitioner accepted responsibility for her 4 offense by pleading guilty, she was able to decrease her base level by three points to a base 5 offense level of 37, which carries a sentencing range of 210 months to 262 months. U.S. 6 SENT’G GUIDELINES MANUAL § 3E1.1. Had Petitioner been convicted instead of pleading 7 guilty and accepting responsibility, she would have been facing a sentence of 293 months 8 to life in prison. Thus, Petitioner’s sentence of 120 months was not only well below the 9 sentencing guidelines but was greatly reduced due to the fact she pled guilty. 10 Most importantly, Petitioner was charged with violation of 21 U.S.C. §§ 952 and 11 960. Section 960 provides that where “[a]ny person who . . . knowingly or intentionally 12 imports or exports a controlled substance . . . . 50 grams or more of methamphetamine,” 13 that “person committing such violation shall be sentenced to a term of imprisonment of not 14 less than 10 years and not more than life.” 21 U.S.C. § 960(a)-(b). Thus, even though 15 Petitioner accuses Mr. DePento of failing “to prevent an improper upward adjustment,” the 16 Court finds the statement to be an impossibility. In fact, there was no upward adjustment 17 to prevent because Mr. DePento secured the lowest possible sentence for Petitioner. 18 Petitioner also accuses Mr. DePento of “failing to secure a favorable adjustment.” 19 However, the Court finds that to the contrary, Mr. DePento secured Petitioner the most 20 favorable adjustment possible. Thus, her claims of ineffective assistance for failure to 21 perform an essential duty neither show (1) deficient performance nor (2) prejudice. 22 Nothing Mr. DePento could have done could have secured a more favorable outcome than 23 the outcome Petitioner already received. 24 2. Alleged Failure to Present All Evidence and Options to Petitioner 25 Petitioner also claims Mr. DePento “did not present the discovery to the defendant 26 so that the defendant could make a consious [sic] decision on the evidence against her in 27 order for her to decide if she should present her case to trial.” ECF No. 49 at 6. Instead, 28 Petitioner alleges that she “was told only to sign the plea presented to her and that no other 1 choice was available to her.” Id. at 6. The Government responds that Petitioner “was 2 specifically advised of her right to go to trial and declined asking any questions regarding 3 her plea colloquy or at the time of sentencing.” ECF No. 53 at 2:10-12. 4 The gyst of Petitioner’s claim here seems to be that her decision to plead guilty was 5 not knowingly made because she did not have all of the evidence before her in order to 6 properly decide if she wanted to take her case to trial. With respect to this claim, the Court 7 is cognizant of the fact that because it pertains to the negotiation of the Plea Agreement, it 8 represents the sole claim not barred due to procedural default. Washington, 422 F.3d at 9 870. “[A] guilty plea represents a break in the chain of events which has preceded it in the 10 criminal process.” Tollett, 411 U.S. at 267. “When a criminal defendant has solemnly 11 admitted in open court that he is in fact guilty of the offense with which he is charged, he 12 may not thereafter raise independent claims relating to the deprivation of constitutional 13 rights that occurred prior to the entry of the guilty plea.” Id. The Court interprets this to 14 mean that where a defendant admits guilt in open court, she may not raise a deprivation of 15 constitutions rights, including the Sixth Amendment right to counsel, that occurred prior 16 to the entry of the guilty plea. Instead, a defendant “may only attack the voluntary and 17 intelligent character of the guilty plea by showing that the advice he received from counsel 18 was not within . . . [reasonable professional] standards.” Id. Here, the Court notes that 19 Petitioner does not allege her guilty plea was not voluntary, and as previously noted, ample 20 evidence confirms her plea was, in fact, voluntary. Again, her allegations imply her claim 21 arises out of an allegation that her counsel’s advice to her regarding entering a guilty plea 22 was not within the reasonable professional standards. This Court, however, finds that even 23 though there is no indication in the record that Mr. DePento explicitly recommended to 24 Petitioner to plead guilty, even if he had, that would have been within reasonable 25 professional standards for the reasons outlined in the preceding section. 26 More importantly, Mr. DePento’s declaration indicates that he did present Petitioner 27 with all of the evidence in her case. He stated that he (1) “reviewed all of the evidence 28 provided by the United States and from her former lawyer in discovery so that I could 1 properly evaluate the merits of the case and determine whether any motions should be 2 filed,” ECF No. 55-1 at 2, ¶ 5, (2) “reviewed all of the evidence with her prior to her 3 decision to plead guilty in this case by reading and reviewing all of the reports that 4 pertained to her and her activities, id. at 2, ¶ 7; (3) arranged a meeting on April 10, 2018 5 between Petitioner, himself, and counsel for the Government and agents, “so that counsel 6 for the United States could review the evidence with Ms. Castro,” id. at 2, ¶ 8; (4) 7 “discussed all of Ms. Castro’s options” with her, explaining “that she could go to trial, 8 plead guilty without a plea agreement or plead guilty with a plea agreement,” id. at 3, ¶ 12; 9 and (6) “did not tell her that signing the plea agreement was her only option and that no 10 other choice was available to her,” but instead, “explained to her that ultimately the 11 decision of whether to plead guilty or go to trial was hers and that [he] . . . would represent 12 her regardless of her decision,” id. at 4, ¶ 15. Mr. DePento even elaborated, stating that he 13 explained to Petitioner that if she (1) “went to trial, the United States would likely file an 14 information pursuant to 21 U.S.C. § 851 that would increase the applicable mandatory 15 minimum for her case to 240 months’ custody,” (2) “pleaded guilty without a plea 16 agreement, the United States would be free to recommend any sentence, including one 17 within the guideline range referenced above,” and (3) “plead guilty pursuant to the plea 18 agreement . . . [it] would bind the United States to a sentencing recommendation of 120 19 months’ custody.” ECF No. 55-1 at 3, ¶ 12. In the end, Mr. DePento states that “[t]he 20 decision to not go to trial was hers and she realized we had no witnesses other than herself.” 21 Id. at 4, ¶ 16. The record in this case indicates that Mr. DePento, contrary to Petitioner’s 22 claims, presented Petitioner will all of the evidence in this case, including during meetings 23 with the Government, and as such, she had all the information she could need in order to 24 decide whether to try her case. Petitioner also fails to point to a single piece of discovery 25 or evidence, which had she had access to it, would have caused her to decide to try her case 26 rather than plead guilty. Thus, she cannot show how even if Mr. DePento had failed to 27 provide Petitioner with some piece of discovery, that failure would have changed the 28 1 outcome for Petitioner (e.g., she would not have pled guilty). Accordingly, this claim also 2 fails to show (1) deficient performance by Mr. DePento or (2) prejudice. 3 3. Alleged Failure to Suppress Evidence 4 Petitioner complains that Mr. DePento failed to object or argue “to surpress [sic] 5 “the defendant’s evidence,” but “[c]ertain evidence presented by the Government could 6 have been excluded [sic] and the result of the defendant’s case may have been different.” 7 ECF No. 49 at 8. The Government responds that Petitioner “fails to identify what piece of 8 evidence she believes that her counsel should have moved to suppress.” ECF No. 53 at 9 2:12-13. Further, Mr. DePento’s declaration indicates that he (1) “reviewed all of the 10 evidence provided by the United States and from her former lawyer in discovery,” so that 11 he “could properly evaluate the merits of the case and determine whether any motions 12 should be filed,” ECF No. 55-1 at 2, ¶ 5, and (2) despite reviewing all of the evidence, “did 13 not identify any motions that could be filed related to the evidence, including any motions 14 to suppress or otherwise exclude any of the evidence,” id. at 2, ¶ 6. Here, the Court agrees 15 with the Government that Petitioner’s claim fails in light of the fact that she fails to specify 16 a single piece of evidence that (1) the Government intended to introduce and Mr. DePento 17 could have sought to appropriately6 exclude under the law and/or (2) might have changed 18 the outcome of Petitioner’s case had she proceeded to trial because it would have been 19
20 6 Rule 11 of the Federal Rules of Civil Procedure provides that “[b]y presenting to 21 the court a . . . written motion, . . . an attorney . . . certifies that . . . . the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or 22 reversing existing law or for establishing new law.” Thus, it would have been improper 23 for Mr. DePento to file a motion to suppress for the sole purpose of trying to exclude evidence harmful to Petitioner. It would only have been proper for Mr. DePento to file 24 such a motion where he believed it was warranted under the law. Here, Mr. DePento 25 concluded, in his discretion, that such a motion was not warranted. ECF No. 55-1 at 2, ¶ 6. Given “a court must indulge a strong presumption that counsel’s conduct falls within 26 the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689-90, the 27 Court presumes that Mr. DePento’s evaluation was reasonable under the circumstances, particularly given Petitioner has failed to provide any evidence otherwise—such as by 28 1 excluded. Accordingly, any alleged failure to suppress evidence on Petitioner’s behalf was 2 not unreasonable and did not constitute ineffective assistance of counsel. 3 4. Alleged Failure to Advise Petitioner of Her Rights to an Appeal 4 Finally, Petitioner claims that Mr. DePento violated her Sixth Amendment rights 5 because he “did not advise the defendant of her rights to an appeal,” but instead, “told the 6 defendant that she did not have any rights to an appeal because she signed a plea 7 agreement.” ECF No. 49 at 9. The Government responds that “the plea agreement clearly 8 listed the constitutional rights that Castro would be giving up by deciding to plead guilty,” 9 and Petitioner “agreed to waive appeal in exchange for a plea agreement in this case.” ECF 10 No. 53 at 2:13-14, 5:5-6. 11 The record indicates that on April 16, 2018, Movant entered into a plea agreement 12 with the government, in which she waived “all rights to appeal and to collaterally attack 13 every aspect of the conviction and sentence.” Plea Agreement, ECF No. 29 at 9. The plea 14 agreement contained exceptions, which allowed her to appeal (1) “a custodial sentence 15 above the greater of 71 months or the mandatory minimum term, if applicable” or (2) “the 16 conviction or sentence on the basis that defendant received ineffective assistance of 17 counsel.” Id. at 9-10. Defendant was informed on at least three occasions that by entering 18 into the plea agreement, she waived her right to appeal or collaterally attack her sentence 19 except for where (1) the sentence exceeds the greater of the mandatory minimum sentence 20 or (2) she sought to attack the sentence on the basis of ineffective assistance of counsel. 21 Id. at 9 (showing that on April 16, 2018, Movant entered into a plea agreement with the 22 government, in which she waived “all rights to appeal and to collaterally attack every 23 aspect of the conviction and sentence”); Plea Colloquy, ECF No. 52 at 6:17-7:6 (Petitioner 24 confirmed she understood when Magistrate Judge Crawford also informed Petitioner “You 25 have the right to appeal any sentence that might be imposed on you unless you’ve given 26 up that right as part of your plea arrangement with the Government”); Sentencing Hearing, 27 ECF No. 51 at 8:6-11 (Mr. DePento responded, “Yes,” on Petitioner’s behalf when the 28 Court asked Petitioner directly, “Do you acknowledge you waived your right to appeal and 1 collaterally attack”). This evidence entirely contradicts any statement by Petitioner that 2 she was (1) unaware of her right to an appeal and/or (2) not informed that by entering into 3 the plea agreement, she would sacrifice her right to appeal or collaterally attack the 4 sentence. 5 Further, in Mr. DePento’s declaration, he states that as part of his representation, he 6 (1) discussed with Petitioner that if she signed the plea agreement, “she would be waiving 7 her right to appeal or collaterally attack the conviction or the sentence in exchange for a 8 more favorable sentencing recommendation from the United States,” ECF No. 55-1 at 3, ¶ 9 13; (2) explained to Petitioner “that she would only be permitted to appeal or collaterally 10 attack the conviction and/or her sentence if the Court sentenced her above the statutory 11 mandatory minimum term (120 months’ custody) or the basis of her challenge was 12 ineffective assistance of counsel,” id. at 3, ¶ 13; (3) after he explained the agreement to 13 Petitioner, Petitioner confirmed to him that “she understood and was in complete 14 agreement with waiving her appeal and collateral attack rights in exchange for a lower 15 sentencing recommendation from the United States,” id. at 3, ¶ 13; (4) was never advised 16 by Petitioner that she wished for him to file a notice of appeal, id. at 4, ¶ 17; and (5) would 17 have initially advised against an appeal if Petitioner had asked him for one, but 18 nevertheless, would have filed one on her behalf in a timely manner if she had persisted in 19 her request, id. at 4, ¶ 18. Mr. DePento’s statements in his declaration are bolstered by the 20 record, and as stated, completely belie Petitioner’s claims that she was unaware that by 21 entering into her plea agreement, she was sacrificing her right to appeal. Thus, Petitioner’s 22 claim for ineffective assistance of counsel on this basis also fails. 23 Petitioner concluded by asking the Court to grant “any kind of relief on her 24 sentence,” stating that she feels her attorney did not give her the best representation. ECF 25 No. 49 at 13. The Court disagrees with Petitioner’s claim that her attorney failed to give 26 her the best representation and views this Motion as an attempt to disingenuously claim 27 ineffective assistance of counsel in the hopes of securing a reduced sentence, resulting in 28 the needless disparagement of Petitioner’s hardworking attorney. Moreover, Petitioner | also stated in her Motion that she would like the Court to lower her sentence based on her 2 criminal history; however, as noted by this Court at the Sentencing Hearing, Petitioner’s 3 criminal history was one of the factors that weighed against providing Petitioner a shorter + || sentence. Petitioner had stated that if the Court provided Petitioner a shorter sentence, she > || would seek education and rehabilitation while in prison. ECF No. 49 at 13. Even though © the Court denies Petitioner’s Motion, the Court hopes Petitioner will still pursue her 7 || education and rehabilitation. 8 |v. CONCLUSION 9 For the above reasons, the Court DENIES Petitioner’s Motion to Vacate, Set Aside, 10 || or Correct Sentence. I] The Court DENIES Petitioner’s request for an evidentiary hearing because it finds 12 there is sufficient information on the record to demonstrate that Petitioner (1) is 13 procedurally barred from her Motion as a result of failing to raise the issue on direct appeal 14 || and has not shown cause of prejudice to excuse her procedural default; (2) was accurately 15 || advised of the consequences of her plea agreement, (3) knew that she was waiving her right 16 IIto appeal or collaterally attack at the time she entered her plea; and (4) had effective 17 || assistance of counsel at the time she entered her plea. 18 Finally, the Court DENIES Petitioner a certificate of appealability. A defendant is 19 required to obtain a certificate of appealability in order to appeal a decision denying a 20 || motion under 28 U.S.C. § 2255. A court may issue a certificate of appealability where the 21 ||movant has made a “substantial showing of the denial of a constitutional right,” and 22 || reasonable jurists could debate whether the motion should have been resolved differently, 23 || or that the issues presented deserve encouragement to proceed further. See Miller-El v. 24 || Cockrell, 537 U.S. 322, 335 (2003). This Court finds that Movant has not made the 25 || necessary showing. A certificate of appealability is therefore DENIED. 26 IT IS SO ORDERED. 27 DATED: October 26, 2020 28 ON. ROGER T. BENIT United States District Judge -24-