1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 3 AT TACOMA 4 HILARIO ORTIZ-CALDERON, CASE NO. C19-CV-5010 BHS 5 Petitioner, (15-CR-5133 BHS) v. 6 ORDER DENYING PETITIONER’S UNITED STATES OF AMERICA, MOTION TO VACATE, SET 7 ASIDE, OR CORRECT SENTENCE Respondent. 8 9
10 11 12 13 14 This matter comes before the Court on Petitioner Hilario Ortiz-Calderon’s 15 (“Petitioner”) motion to vacate, set aside, or correct his 2017 judgment and sentence 16 pursuant to 28 U.S.C. § 2255. Dkt. 1. The Court has considered the pleadings filed in 17 support of and in opposition to the motion and the remainder of the file and hereby denies 18 the motion for the reasons stated herein. 19 I. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 20 In 2015 Petitioner was charged by a three-count indictment with possession of 21 methamphetamine with intent to distribute, felon in possession of a firearm, and unlawful 22 1 re-entry after deportation. United States v. Ortiz-Calderon, No. CR 15-5133BHS (“CR”), 2 Dkt. 12. Petitioner pled guilty to the felon in possession and unlawful re-entry charges,
3 id. Dkts. 51, 52, 91, 92, but proceeded to a bench trial on the methamphetamine charge, 4 id. Dkts. 99, 100, 102, 121. Before trial, Petitioner moved to suppress firearms and 5 methamphetamine seized from a search of his house and statements he made to law 6 enforcement. Id., Dkt. 35. Regarding suppression of the contraband, Petitioner argued 7 that neither he nor his wife, Sandra Mercado (“Mercado”), voluntarily consented to the 8 search of their home and its outbuildings. Id. Petitioner and Mercado had each signed
9 written consent to search forms around the time of Petitioner’s arrest. Id. Petitioner 10 alleged that their consent to search was not valid because neither he nor Mercado spoke 11 English, they had only given consent because the officers threatened to remove their 12 disabled children if they did not consent, and they did not understand their right to refuse 13 consent. Id. Regarding suppression of his statements, Petitioner argued that officers
14 questioned him after his arrest but before advising him of his Miranda rights. Id. 15 The Court held an evidentiary hearing on Petitioner’s motion to suppress. Id., Dkt. 16 53. The Court heard testimony from several officers present during Petitioner’s arrest and 17 the search of his home. Neither Petitioner nor Mercado testified. Relevant to the instant 18 motion, Petitioner contends that attorney Sarah J. Perez (“Perez”), who represented
19 Petitioner on the motion to suppress and at trial, failed to investigate Mercado’s version 20 of events including her English comprehension and failed to call her as a witness at the 21 22 1 hearing.1 Dkt. 2 at 6. Petitioner asserts that Mercado would have provided testimony that 2 conflicted with the officers’ testimony regarding her consent to search or lack thereof. Id.
3 At the end of the suppression hearing, the Court found that Petitioner and Mercado 4 had voluntarily consented to a search of their house, including the garage. Id., Dkt. 56. 5 The Court further found that Petitioner was not questioned before he was read his 6 Miranda rights in Spanish, that Petitioner had knowingly, intelligently and voluntarily 7 waived those rights, and therefore his statements were admissible. Id. 8 Petitioner proceeded to a bench trial on the methamphetamine charge. Id., Dkts.
9 99, 100, 102, 121. After trial, the undersigned convicted Petitioner of possession of 10 methamphetamine with intent to distribute. Id., Dkt. 121. The Court sentenced Petitioner 11 to a total sentence of 132 months.2 12 Petitioner appealed the denial of his motion to suppress to the Ninth Circuit. Dkt. 1 13 at 2. The Circuit affirmed the undersigned’s ruling in its entirety in a memorandum
14 disposition. United States v. Ortiz-Calderon, 739 F. App’x 402, 403 (9th Cir. 2018). On 15 December 24, 2018, Petitioner mailed, and thus filed,3 a motion to vacate, set aside, or 16
17 1 After trial, the Court granted Petitioner’s motion to discharge Perez. CR Dkts. 126, 129. Assistant Federal Public Defenders John Carpenter and Colin Fieman were appointed, but the 18 Court also granted Petitioner’s motion to discharge them. Id., Dkts. 130, 134. The Court then appointed attorney Zenon P. Olbertz and denied Petitioner’s subsequent motion to discharge him. Id., Dkts. 144, 146. Olbertz withdrew after sentencing, id., Dkts. 157, 158, and the Court 19 appointed another attorney to represent Petitioner on appeal, id., Dkt. 162. 20 2 The Court ordered the sentence to run concurrently to the sentence it imposed on revocation of Petitioner’s supervised release. See United States v. Calderon, No. CR 08- 21 5312BHS, Dkt 54. 3 Rule 3(d) of the Rules Governing Section 2255 Cases for the United States District 22 Courts (prisoner pleading filed upon mailing). 1 reduce sentence pursuant to 28 U.S.C. § 2255, Dkt. 1, and a statement of facts and legal 2 authorities in support of the motion, Dkt. 2. On April 5, 2019, Respondent United States
3 of America (“the Government”) responded. Dkt. 8. On April 24, 2019, Petitioner replied. 4 Dkt. 14. On April 26, 2019, the Government filed a declaration from Perez. Dkt. 13 5 (“Perez Decl.”). On May 6, 2019, Petitioner surreplied. Dkt. 16.4 6 II. DISCUSSION 7 Petitioner asserts a claim of ineffective assistance of counsel based on two legal 8 theories alleging inadequate investigation. Dkt. 1. First, Petitioner contends that Perez
9 failed to investigate key facts and witnesses he alleges would have supported his lack of 10 consent theory on the motion to suppress. Id. at 4. Second, Petitioner contends Perez 11 failed to investigate his predicate offenses, specifically (1) an underlying criminal 12 conviction that formed the basis for count two, felon in possession of a firearm, and (2) 13 an order of removal that formed the basis for count three, unlawful re-entry. Id. at 4–5.
14 Petitioner asks the Court to vacate his conviction and sentence on all three counts. Id. at 15 12. 16 A. Legal Standards 17 1. 28 U.S.C. § 2255 Under § 2255, the Court may grant relief to a federal prisoner who challenges the 18 imposition or length of his incarceration on the ground that: (1) the sentence was imposed 19 20 4 Petitioner’s motion for leave to file a surreply is granted. Petitioner deposited his reply 21 in the prison mail system two days before the Government filed Perez’s declaration. Dkts. 13, 14. Consequently, Petitioner did not receive an adequate opportunity to address the declaration in 22 reply. 1 in violation of the Constitution or laws of the United States; (2) the Court was without 2 jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum
3 authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. 4 § 2255(a). 5 A prisoner filing a claim under § 2255 is entitled to an evidentiary hearing 6 “[u]nless the motion and the files and records of the case conclusively show that the 7 prisoner is entitled to no relief.” Id. § 2255(b). The Ninth Circuit has characterized this 8 standard as requiring an evidentiary hearing when “the movant has made specific factual
9 allegations that, if true, state a claim on which relief could be granted.” United States v. 10 Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (citing United States v. Schaflander, 743 11 F.2d 714, 717 (9th Cir. 1984)). 12 2. Ineffective Assistance of Counsel 13 The Sixth Amendment guarantees a criminal defendant the right to effective
14 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court 15 evaluates ineffective assistance of counsel claims under the two-prong test set forth in 16 Strickland. To prevail under Strickland, a defendant must prove (1) that his counsel’s 17 performance was deficient and (2) that this deficient performance was prejudicial. Id. 18 With respect to Strickland’s performance requirement, “the defendant must show
19 that counsel’s representation fell below an objective standard of reasonableness” in light 20 of all the circumstances of the case. Id. at 688. Reasonableness is measured “under 21 prevailing professional norms.” Id. Judicial scrutiny of counsel’s performance is highly 22 deferential, and the Court must apply a “strong presumption that counsel’s conduct falls 1 within the “wide range of reasonable professional assistance.” Id. at 689. With respect to 2 Strickland’s prejudice requirement, “the defendant must show that there is a reasonable
3 probability that, but for counsel’s unprofessional errors, the result of the proceeding 4 would have been different.” Id. at 694. A “reasonable probability” is “a probability 5 sufficient to undermine confidence in the outcome.” Id. 6 B. Application to § 2255 Motion 7 Petitioner alleges that Perez violated his Sixth Amendment right to effective 8 assistance of counsel based on her alleged failure to investigate multiple aspects of his
9 case. Dkts. 1, 2, 14, 16. The Sixth Amendment imposes a duty on counsel to make 10 reasonable investigations or to make reasonable decisions that render particular 11 investigations unnecessary. Strickland, 466 U.S. at 691. “[A] particular decision not to 12 investigate must be directly assessed for reasonableness in all the circumstances, applying 13 a heavy measure of deference to counsel’s judgments.” Id. at 691. In the absence of a
14 strategic reason not to investigate, an attorney’s failure to conduct a reasonable 15 investigation may constitute deficient performance. Rios v. Rocha, 299 F.3d 796, 805 16 (9th Cir. 2002). 17 Petitioner alleges that Perez failed to investigate his version of events concerning 18 the search and failed to investigate the validity of his predicate conviction and order of
19 removal. Dkts. 1, 2, 14, 16. The Court addresses each of Petitioner’s theories in turn. 20 1. Failure to Investigate: Motion to Suppress 21 Petitioner first contends that Perez was ineffective because she failed to interview 22 Mercado before the evidentiary hearing on the motion to suppress. Dkt. 1 at 4. Petitioner 1 asserts that Perez had a duty to independently investigate Mercado’s version of events 2 concerning the search and her alleged lack of English language fluency. Id.; see also Dkt.
3 2 at 6–9. Petitioner argues that Mercado’s testimony would have supported his theory that 4 neither he nor Mercado provided voluntary consent to search. 5 Through an unsworn declaration, Mercado states she would have testified that the 6 consent she provided was not voluntary because (1) she did not understand English well 7 enough to provide consent, (2) she felt pressured by the agents to sign the consent form, 8 and (3) the agents represented that the consent form she did sign only encompassed a car,
9 not her home and/or its outbuildings. Dkt. 2 at 19. Regarding prejudice, Petitioner alleges 10 that the Court would have granted his motion to suppress had Perez interviewed 11 Mercado, learned these facts, and called her as a witness at the hearing. Dkt. 14 at 4.5 12 The Government argues that Perez made a reasonable, strategic choice to not call 13 Mercado after learning that she had previously stated under penalty of perjury that she
14 was fluent in English. Dkt. 8 at 8. Prior to the hearing on the motion to suppress, the 15 Government provided Perez with a form from Mercado’s immigration file where 16 Mercado had sworn she was fluent in English. Dkt. 8-1 at 7 ¶ 23.6 The Government 17 argues that after it provided Perez with this sworn statement, it was reasonable for her to 18 5 Petitioner also alleges that Mercado “was threatened by the officers that she would go to 19 jail and loose [sic] their children—including their two blind daughter [sic]—if she did not consent to the search of their home,” but this allegation does not appear in Mercado’s own 20 declaration. Compare Dkt. 16 at 3 with Dkt. 2 at 19. Thus, to the extent Petitioner incorporates this allegation in his declaration, the Court finds it conclusory and declines to consider it. James 21 v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). 22 6 CM/ECF pagination used throughout. 1 decide not to call Mercado. Dkt. 8 at 8. The Government also contends that Perez cannot 2 be found deficient based on her decision not to suborn perjury. Id. (citing Nix v.
3 Whiteside, 475 U.S. 157, 171 (1986) (holding right to effective counsel not violated when 4 attorney refused to present defendant’s suggested perjured testimony)). Finally, the 5 Government asserts that Perez’s decision not to interview Mercado is excused by the fact 6 that Mercado could no longer be called to testify on Petitioner’s behalf. Dkt. 8 at 9. 7 The Court concludes that Perez’s decision not to interview Mercado or call her as 8 a witness, after learning about her prior sworn statement, falls within the wide range of
9 reasonable professional judgment that is acceptable under Strickland. Perez’s choice to 10 discontinue investigation was based on evidence that Mercado had sworn under penalty 11 of perjury that she was fluent in English. At the hearing, the main goal of Mercado’s 12 testimony was to challenge the veracity of the version of events concerning the search as 13 presented by law enforcement, and thus, her usefulness as a witness hinged on this
14 Court’s ability to credit her testimony. Perez made the choice to discard Mercado as a 15 witness, declining to interview her, only after Perez viewed evidence demonstrating 16 Mercado would have to commit perjury in order to testify favorably for Petitioner. The 17 Court is not persuaded that Perez was acting outside the bounds of acceptable 18 performance when, in lieu of presenting a witness who would have promptly been
19 impeached on a key issue by prior sworn testimony, she decided to reformulate the 20 defense and instead attack the Government’s position through cross examination. 21 It may well have been prudent for Perez to interview Mercado. However, based on 22 her reasonable assumption that the Court would not credit Mercado’s testimony in light 1 of the sworn statement, Perez’s choice not to interview her further can be considered a 2 matter of strategy. Perez Decl. ¶ 6. “[S]trategic choices made after less than complete
3 investigation are reasonable precisely to the extent that reasonable professional 4 judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–91; see 5 also Rios, 299 F.3d at 806 (decision to forego a defense as a matter of strategy or tactic 6 must be based on reasoned assumptions) (citations omitted). Said another way, it would 7 be illogical to find Perez deficient because she declined to interview a witness who if put 8 on the stand would testify contrary to, and thus be impeached by, the witness’s prior
9 sworn statement concerning the key issue of the motion. Moreover, Perez was concerned 10 about introducing evidence through Mercado that would have aided the Government’s 11 theory that she spoke English well enough to provide voluntary consent to search. Perez 12 Decl. ¶ 6. Unlike the attorney in Rios, who made a choice to abandon a defense after 13 interviewing only one of more than fifteen eyewitnesses to his client’s alleged
14 commission of a homicide, 299 F.3d at 805–06, Perez based her decision about how to 15 approach Petitioner’s suppression hearing based on documentary evidence rejecting the 16 core premise of his eyewitness’s testimony—that she did not understand English. It is of 17 no matter that the evidence fatal to Mercado’s testimony was produced by the 18 Government and not discovered by Perez through an “independent” investigation. The
19 information was submitted by Mercado herself, and the Government was simply in a 20 better position to access it and turn it over. On this record, Petitioner has failed to 21 establish deficient performance. 22 1 Petitioner also fails to show prejudice regarding Perez’s failure to interview 2 Mercado. Petitioner suggests that if Perez had done so, she would have learned that
3 Mercado’s immigration form was prepared by someone else. Yet Mercado signed the 4 immigration form under penalty of perjury and, in doing so, certified under oath that the 5 responses on the form were true and correct. Dkt. 8-1 at 15, 16. Thus, it would not have 6 mattered that someone else prepared the form for her. In other words, she still would be 7 required to testify inconsistently with her prior statement that she was fluent in English at 8 the hearing. This testimony would have damaged Mercado’s credibility on the key issue
9 before the Court and may have weakened Petitioner’s position on the motion. Further, the 10 Government points to other evidence in the record, such as the testimony of an agent with 11 personal knowledge of Mercado’s English comprehension, which the Court agrees would 12 make unlikely any finding crediting Mercado’s testimony over that of the testifying law 13 enforcement officers. Dkt. 8 at 9 (citing CR, Dkt. 112 at 30, 38, 47, 103–04, 132–34,
14 172–74). Consequently, even if Perez interviewed Mercado and called her to testify, 15 Petitioner has not demonstrated with reasonable probability that the outcome of the 16 proceeding would have been different—i.e., that the Court would have suppressed the 17 methamphetamine and firearms seized from his house. Accordingly, Petitioner fails to 18 demonstrate prejudice on this issue.
19 In sum, the Court denies Petitioner’s claim of ineffective assistance based on 20 Perez’s failure to investigate and interview Mercado concerning the search. To the extent 21 Petitioner asserts that Perez performed deficiently by failing to call him to testify to the 22 lack of consent theory at the hearing, Dkt. 2 at 6–9, Petitioner is presumed to have 1 assented to this decision, United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993) (citing 2 United States v. Edwards, 897 F.2d 445, 446–47 (9th Cir. 1990)). Moreover, because the
3 record reveals that Petitioner did not insist on testifying, speak to the Court, or discharge 4 Perez, see id. (citation omitted), he waived his right to testify by conduct. Thus, Petitioner 5 fails to show deficient performance regarding Perez’s failure to call him as a witness. 6 Regarding prejudice, Petitioner also fails to establish that the outcome of the 7 hearing would have been different even if Perez had called him to testify. At the hearing, 8 the Government introduced two exhibits demonstrating that Petitioner spoke and
9 understood English, as well as testimony from at least three law enforcement officers 10 indicating the same. CR, Dkt. 112. Given this evidence, Petitioner has not established that 11 the Court would have credited his testimony over the other evidence introduced by the 12 Government. Petitioner thus fails to show with reasonable probability that the Court 13 would have granted his motion even if Perez called him as a witness at the hearing.
14 Therefore, to the extent Petitioner asserts a claim against Perez on this basis, the motion 15 is denied. 16 2. Failure to Investigate: Predicate Conviction & Removal Order 17 Petitioner next contends that his guilty pleas on counts two and three were 18 involuntary because Perez failed to investigate his predicate criminal conviction and
19 order of removal, which he asserts are each constitutionally infirm. Dkt 1 at 5. “[A] 20 defendant who pleads guilty upon the advice of counsel may only attack the voluntary 21 and intelligent character of the guilty plea by showing that the advice he received from 22 counsel” constituted ineffective assistance—that is, that the advice constituted deficient 1 performance and prejudiced the defense. Hill v. Lockhart, 474 U.S. 52, 56 (1985). “In the 2 context of a plea, a petitioner satisfies the prejudice prong of the Strickland test where
3 ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded 4 guilty and would have insisted on going to trial.”’ Smith v. Mahoney, 611 F.3d 978, 986 5 (9th Cir. 2010) (quoting Hill, 474 U.S. at 59). 6 a. Predicate Criminal Conviction 7 In 2009 Petitioner was convicted of possession of methamphetamine with intent to 8 distribute (“the 2009 conviction”) following his plea of guilty to that charge. CR 08-
9 5312BHS, Dkt. 54. When Petitioner was arrested in the instant case, the 2009 conviction 10 became the predicate offense for the felon in possession of a firearm charge (count two) 11 that Petitioner now challenges through the instant motion. Relying on Padilla v. 12 Kentucky, 559 U.S. 356 (2010) (“Padilla”), Petitioner contends that his prior counsel 13 rendered ineffective assistance by failing to provide competent immigration advice
14 regarding the 2009 conviction. Specifically, Petitioner alleges that prior counsel failed to 15 advise him that pleading guilty to a felony drug offense would result in his near certain 16 deportation. Petitioner ties this alleged deficiency to Perez’s performance on the instant 17 conviction by asserting that she failed to undertake reasonable investigation into the 2009 18 conviction and, had she done so, she would have discovered its alleged infirmity based on
19 prior counsel’s allegedly deficient advice. 20 On this issue, Petitioner’s claim against Perez fails because the Supreme Court has 21 held that Padilla is a new rule of criminal procedure not retroactively applicable on 22 collateral attack. Chaidez v. United States, 568 U.S. 342, 353 (2013) (“Chaidez”). Thus, 1 even if Petitioner’s prior counsel did perform deficiently in connection with his 2009 2 conviction, Petitioner cannot rely on this rule because his 2009 conviction became final
3 prior to the date the Supreme Court issued Padilla. 4 A conviction that is not appealed becomes final 14 days after the court enters a 5 judgment on the conviction. United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 6 2001). In this case, Petitioner’s 2009 conviction became final on March 9, 2009, which is 7 14 days after the Court entered judgment on the matter. CR 08-5312BHS, Dkt. 54. 8 Padilla was decided on March 31, 2010. 559 U.S. at 356. Because relief as to Petitioner’s
9 2009 conviction is not retroactively available under Padilla and Chaidez, Petitioner fails 10 to demonstrate ineffective assistance and prejudice as to his 2017 conviction on this 11 claim, even if his allegations regarding Perez’s failure to investigate are assumed true. 12 Additionally, even if Petitioner sought to apply the benefit of Padilla to his 2009 13 conviction, through narrow exceptions potentially available to federal prisoners as left
14 open in Chaidez, see 568 U.S. 342 n.16, he would have needed to timely file a post- 15 conviction motion seeking such relief as to the 2009 conviction. Petitioner did not file 16 such a motion. No. CR 08-5312BHS. Therefore, for all the foregoing reasons, the Court 17 denies Petitioner’s motion on this issue. 18 b. Predicate Order of Removal
19 Petitioner’s 2009 conviction resulted in his deportation from the United States. 20 Dkt. 2 at 10–13. When Petitioner was arrested, and thus found inside the United States in 21 2015, this prior deportation formed the basis for count three: unlawful re-entry in 22 violation of 8 U.S.C. § 1326. 1 To convict Petitioner of unlawful re-entry under § 1326, “the government must 2 prove that [Petitioner] left the United States under order of exclusion, deportation, or
3 removal, and then illegally reentered.” United States v. Martinez, 786 F.3d 1227, 1230 4 (9th Cir. 2015) (quoting United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 5 2014)). “A noncitizen charged with illegal reentry therefore has a Fifth Amendment right 6 to collaterally attack his removal order because the removal order serves as a predicate 7 element of his conviction . . . . ” Id. (quoting Alvarado-Pineda, 774 F.3d at 1201) 8 (citations and internal quotation marks omitted).
9 In light of his right to collaterally attack his removal order in his criminal 10 proceeding, Petitioner contends that Perez failed to reasonably investigate the 11 circumstances of his prior deportation. Petitioner asserts that had Perez done so, she 12 would have found that he was deprived of due process in his removal proceeding and he 13 would not have pled guilty to unlawful re-entry. Dkt. 2 at 10. At minimum, Petitioner
14 asserts Perez should have examined his removal proceedings for defects. Id. 15 The Government argues that Petitioner’s claim fails for three reasons: first, he fails 16 to provide evidence supporting the assertion that Perez did not investigate his underlying 17 removal order, second, he fails “to meet the legal requirements for a successful collateral 18 attack,” and third, the record belies “his allegation that he was deprived of due process in
19 his deportation proceedings . . . .” Dkt. 8 at 5, 11–15. The Court disagrees with the 20 Government’s first reason because Petitioner’s claim that Perez failed to investigate his 21 removal proceedings is supported by some evidence. Petitioner filed a statement of facts 22 asserting that Perez failed to investigate the circumstances of his removal proceedings. 1 Dkt. 2 at 10–13. Although the Court acknowledges that this allegation is somewhat 2 conclusory, Perez responded to Petitioner’s other claims in detail, yet her declaration is
3 noticeably silent regarding her investigation, or lack thereof, into Petitioner’s removal 4 proceedings. See Perez Decl. Perez’s failure to respond to Petitioner’s specific allegation 5 indicates that it may have merit. Thus, at minimum, Petitioner relies on more than a “bare 6 assertion” regarding Perez’s investigation into his removal proceeding. Therefore, the 7 Court does not find Petitioner’s allegations on this issue too conclusory for consideration. 8 However, the Court agrees that the second and third reasons provided by the
9 Government are dispositive. First, even if Perez did fail to investigate his removal 10 proceedings, Petitioner has not shown that a collateral attack on his order of removal 11 would succeed. To mount a successful collateral attack on an order of removal, Petitioner 12 must demonstrate that “(1) he has exhausted any administrative remedies that may have 13 been available to seek relief from the order; (2) the deportation proceedings at which the
14 order was issued improperly deprived him of the opportunity for judicial review; and (3) 15 the entry of the order was fundamentally unfair.” United States v. Ochoa, 861 F.3d 1010, 16 1014–15 (9th Cir. 2017) (citing 8 U.S.C. § 1326(d)). “An underlying order is 17 fundamentally unfair if (1) a defendant’s due process rights were violated by defects in 18 his underlying deportation proceeding, and (2) he suffered prejudice as a result of the
19 defects.” Martinez, 786 F.3d at 1230 (quoting Alvarado-Pineda, 774 F.3d at 1201) 20 (citation and internal quotation marks omitted). In this case, Petitioner fails to meet even 21 the first element because he has not shown that he exhausted the administrative remedies 22 applicable to removal proceedings. Indeed, and despite his allegation to the contrary, the 1 record shows that Petitioner unequivocally waived his right to appeal at his deportation 2 proceeding. Dkt. 8-1 at 44–45. “[A]n alien is barred from collaterally attacking the
3 validity of an underlying deportation order if he validly waived the right to appeal that 4 order during the deportation proceedings.” United States v. Reyes-Bonilla, 671 F.3d 1036, 5 1043 (9th Cir. 2012) (citing United States v. Gonzalez, 429 F.3d 1252, 1256 (9th Cir. 6 2005)). Although Petitioner asserts that the immigration judge failed to advise him of 7 potential relief under 8 U.S.C. § 1182(h), he fails to plead sufficient facts explaining his 8 eligibility for that relief and thus fails to establish that a due process violation excusing
9 him from the exhaustion requirement occurred. See United States v. Guzman-Ibarez, 792 10 F.3d 1094, 1100 (9th Cir. 2015). Having otherwise validly waived his ability to challenge 11 his removal order, Petitioner fails to demonstrate with reasonable probability that a 12 collateral attack on the order would succeed. Therefore, Petitioner fails to make a 13 showing of prejudice on this issue.
14 Second, the Court agrees with the Government that Petitioner’s factual allegations 15 concerning his removal proceedings are unsupported by the record of those proceedings. 16 Dkt. 8-1 at 40–46. Accordingly, the Court denies Petitioner’s motion on the issue of 17 Perez’s alleged failure to investigate his predicate order of removal. 18 C. Evidentiary Hearing
19 Courts should hold a hearing on a § 2255 motion unless the motion, files, and 20 underlying records of the case “conclusively show” that the petitioner is not entitled to 21 relief. 28 U.S.C. § 2255(b). For the same reasons that the Court denies the motion, the 22 Court concludes that an evidentiary hearing is not required because Petitioner has not 1 stated a claim of ineffective assistance of counsel under any legal theory as conclusively 2 shown on the records before the Court.
3 D. Certificate of Appealability 4 A petitioner seeking post-conviction relief under § 2255 may appeal a district 5 court's dismissal of his federal habeas petition only after obtaining a certificate of 6 appealability (COA) from a district or circuit judge. A COA may issue only where a 7 petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 8 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of
9 reason could disagree with the district court’s resolution of his constitutional claims or 10 that jurists could conclude the issues presented are adequate to deserve encouragement to 11 proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003). The Court concludes 12 that Petitioner is not entitled to a COA with respect to any of his asserted claims. 13 III. ORDER
14 Therefore, it is hereby ORDERED that Petitioner’s motion to vacate, set aside, or 15 correct sentence, Dkt. 1, is DENIED. 16 The Clerk shall enter JUDGMENT and close this case. 17 Dated this 30th day of January, 2019. A 18 19 BENJAMIN H. SETTLE 20 United States District Judge
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