1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * *
9 UNITED STATES OF AMERICA, Case No. 2:17-cr-00361-HDM-NJK 2:19-cv-00271-HDM 10 Plaintiff, ORDER 11 v.
12 EZEQUIEL PENA-VERA,
13 Defendant.
14 15 Before the court is the defendant’s motion to vacate, set aside, or correct sentence 16 pursuant to 28 U.S.C. § 2255 (ECF No. 37). The government has responded (ECF No. 17 45), but the defendant did not reply. 18 On November 8, 2017, a grand jury returned an indictment against the defendant, 19 charging him with a violation of 8 U.S.C. § 1326, deported alien found unlawfully in the 20 United States. On April 24, 2018, the defendant entered into a plea agreement and pled 21 guilty to the charge of being a deported alien found unlawfully in the United States. On 22 September 11, 2018, the court sentenced defendant to an eighteen (18) month term of 23 imprisonment, with credit for time served. A direct appeal was not filed. 24 On February 12, 2019, defendant filed the instant § 2255 motion (ECF No. 37). 25 The government argues that defendant’s motion is precluded under the terms of the plea 26 agreement. 27 A federal inmate may move to vacate, set aside, or correct his sentence pursuant 28 to 28 U.S.C. § 2255, if: (1) the sentence was imposed in violation of the Constitution or 1 laws of the United States; (2) the court was without jurisdiction to impose the sentence; 2 (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is 3 otherwise subject to collateral attack. Id. § 2255(a); see also United States v. Berry, 624 4 F.3d 1031, 1038 (9th Cir. 2010). 5 A. Grounds One and Two 6 Defendant’s first ground for relief asserts that Sessions v. Dimaya, 138 S.Ct. 1204 7 (2018), recognized a new right that is retroactively applicable to his case on collateral 8 review. He asserts that in light of this new right, his prior deportation is invalid because 9 his prior conviction for grand theft from a person cannot serve as a valid basis for his 10 removal. Defendant’s second ground for relief asserts that he was not afforded his right 11 to administratively appeal his deportation order in 2008, which improperly deprived him 12 of judicial review. 13 The government argues first that the defendant waived his right to collaterally 14 attack his prior removal by pleading guilty pursuant to the Plea Agreement, and 15 nonetheless, that the Dimaya decision has no bearing on his case.1 16 The Plea Agreement states: 17 The defendant knowingly and expressly waives: (a) the right to appeal any 18 sentence imposed within or below the applicable Guideline offense level as determined by the parties; (b) the right to appeal the manner in which the 19 Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; and (c) the right to appeal any other aspects of the conviction under 20 28 U.S.C. § 1291 or sentence. The defendant also knowingly and expressly 21 waived all collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court 22 adjudicated guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel. 23 24 25 1 In Dimaya, the Supreme Court held that 18 U.S.C. § 16(b), which deals with “crime[s] of violence,” is unconstitutionally vague. However, the defendant’s offense of grand theft 26 from a person is categorized as a theft offense, not a crime of violence, and therefore Dimaya has no effect on the defendant’s case. Because Dimaya does not apply to 27 defendant’s case, his assertion that it renders his original removal invalid, is without merit. 28 1 (ECF No. 25 at 12-13.) 2 The right to collaterally attack a conviction is statutory and may be waived. United 3 States v. Abarca, 685 F.2d 1012, 1014 (9th Cir. 1993). A defendant’s waiver of a right to 4 collateral attack is generally enforceable if “(1) the language of the waiver encompasses 5 the defendant’s right to appeal on the grounds claimed on appeal, and (2) the waiver is 6 knowingly and voluntarily made.” United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 7 2000) (internal quotation marks omitted). Courts will enforce the plain language of a plea 8 agreement if it is clear and unambiguous on its face. See id. 9 The waiver in the defendant’s Plea Agreement encompasses this Motion and is 10 clear and unambiguous. Further, the defendant makes no argument that his guilty plea 11 was not knowingly and voluntarily made. Accordingly, the Court finds that the defendant, 12 pursuant to the Plea Agreement, waived all collateral challenges to his conviction, except 13 non-waivable claims of ineffective assistance of counsel. 14 B. Ground Three 15 Defendant’s third ground for relief asserts ineffective assistance of counsel related 16 to his immigration counsel’s representation during his removal proceeding. Defendant 17 also makes a general assertion that his counsel failed to file a direct appeal in the instant 18 case. 19 1. Immigration Counsel 20 “Ineffective assistance of counsel in a deportation hearing is a denial of due 21 process under the Fifth Amendment if the proceeding was so fundamentally unfair that 22 the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 23 1015, 1017 (9th Cir. 1985). To make out an ineffective assistance claim, an immigrant 24 must show (1) that counsel's performance was deficient, and (2) that counsel's deficiency 25 caused prejudice. Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 26 2005). Prejudice only results when counsel's performance is “so inadequate that it may 27 have affected the outcome of the proceedings.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th 28 1 Cir. 1999). 2 The defendant argues that he had ineffective assistance of immigration counsel 3 during his removal proceedings because (1) counsel failed to challenge the immigration 4 judge’s determination that he had been convicted of an aggravated violent felony and (2) 5 counsel failed to research the law and the facts as they pertained to petitioner’s case and 6 therefore failed to properly present the case. 7 A 2255 motion is not the appropriate mechanism for raising an ineffective 8 assistance of counsel claim related to the defendant’s immigration counsel, because 9 there is a “lack of sufficient evidentiary record as to what counsel did, why it was done, 10 and what, if any, prejudice resulted.” See Correa-Rivera v. Holder, 706 F.3d 1128, 1130 11 (9th Cir. 2013) (citing Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003)). “Indeed, as 12 a practical matter, a motion to reopen [removal proceedings] is the only avenue ordinarily 13 available to pursue ineffective assistance of counsel claims.” Id.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * *
9 UNITED STATES OF AMERICA, Case No. 2:17-cr-00361-HDM-NJK 2:19-cv-00271-HDM 10 Plaintiff, ORDER 11 v.
12 EZEQUIEL PENA-VERA,
13 Defendant.
14 15 Before the court is the defendant’s motion to vacate, set aside, or correct sentence 16 pursuant to 28 U.S.C. § 2255 (ECF No. 37). The government has responded (ECF No. 17 45), but the defendant did not reply. 18 On November 8, 2017, a grand jury returned an indictment against the defendant, 19 charging him with a violation of 8 U.S.C. § 1326, deported alien found unlawfully in the 20 United States. On April 24, 2018, the defendant entered into a plea agreement and pled 21 guilty to the charge of being a deported alien found unlawfully in the United States. On 22 September 11, 2018, the court sentenced defendant to an eighteen (18) month term of 23 imprisonment, with credit for time served. A direct appeal was not filed. 24 On February 12, 2019, defendant filed the instant § 2255 motion (ECF No. 37). 25 The government argues that defendant’s motion is precluded under the terms of the plea 26 agreement. 27 A federal inmate may move to vacate, set aside, or correct his sentence pursuant 28 to 28 U.S.C. § 2255, if: (1) the sentence was imposed in violation of the Constitution or 1 laws of the United States; (2) the court was without jurisdiction to impose the sentence; 2 (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is 3 otherwise subject to collateral attack. Id. § 2255(a); see also United States v. Berry, 624 4 F.3d 1031, 1038 (9th Cir. 2010). 5 A. Grounds One and Two 6 Defendant’s first ground for relief asserts that Sessions v. Dimaya, 138 S.Ct. 1204 7 (2018), recognized a new right that is retroactively applicable to his case on collateral 8 review. He asserts that in light of this new right, his prior deportation is invalid because 9 his prior conviction for grand theft from a person cannot serve as a valid basis for his 10 removal. Defendant’s second ground for relief asserts that he was not afforded his right 11 to administratively appeal his deportation order in 2008, which improperly deprived him 12 of judicial review. 13 The government argues first that the defendant waived his right to collaterally 14 attack his prior removal by pleading guilty pursuant to the Plea Agreement, and 15 nonetheless, that the Dimaya decision has no bearing on his case.1 16 The Plea Agreement states: 17 The defendant knowingly and expressly waives: (a) the right to appeal any 18 sentence imposed within or below the applicable Guideline offense level as determined by the parties; (b) the right to appeal the manner in which the 19 Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; and (c) the right to appeal any other aspects of the conviction under 20 28 U.S.C. § 1291 or sentence. The defendant also knowingly and expressly 21 waived all collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court 22 adjudicated guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel. 23 24 25 1 In Dimaya, the Supreme Court held that 18 U.S.C. § 16(b), which deals with “crime[s] of violence,” is unconstitutionally vague. However, the defendant’s offense of grand theft 26 from a person is categorized as a theft offense, not a crime of violence, and therefore Dimaya has no effect on the defendant’s case. Because Dimaya does not apply to 27 defendant’s case, his assertion that it renders his original removal invalid, is without merit. 28 1 (ECF No. 25 at 12-13.) 2 The right to collaterally attack a conviction is statutory and may be waived. United 3 States v. Abarca, 685 F.2d 1012, 1014 (9th Cir. 1993). A defendant’s waiver of a right to 4 collateral attack is generally enforceable if “(1) the language of the waiver encompasses 5 the defendant’s right to appeal on the grounds claimed on appeal, and (2) the waiver is 6 knowingly and voluntarily made.” United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 7 2000) (internal quotation marks omitted). Courts will enforce the plain language of a plea 8 agreement if it is clear and unambiguous on its face. See id. 9 The waiver in the defendant’s Plea Agreement encompasses this Motion and is 10 clear and unambiguous. Further, the defendant makes no argument that his guilty plea 11 was not knowingly and voluntarily made. Accordingly, the Court finds that the defendant, 12 pursuant to the Plea Agreement, waived all collateral challenges to his conviction, except 13 non-waivable claims of ineffective assistance of counsel. 14 B. Ground Three 15 Defendant’s third ground for relief asserts ineffective assistance of counsel related 16 to his immigration counsel’s representation during his removal proceeding. Defendant 17 also makes a general assertion that his counsel failed to file a direct appeal in the instant 18 case. 19 1. Immigration Counsel 20 “Ineffective assistance of counsel in a deportation hearing is a denial of due 21 process under the Fifth Amendment if the proceeding was so fundamentally unfair that 22 the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 23 1015, 1017 (9th Cir. 1985). To make out an ineffective assistance claim, an immigrant 24 must show (1) that counsel's performance was deficient, and (2) that counsel's deficiency 25 caused prejudice. Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 26 2005). Prejudice only results when counsel's performance is “so inadequate that it may 27 have affected the outcome of the proceedings.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th 28 1 Cir. 1999). 2 The defendant argues that he had ineffective assistance of immigration counsel 3 during his removal proceedings because (1) counsel failed to challenge the immigration 4 judge’s determination that he had been convicted of an aggravated violent felony and (2) 5 counsel failed to research the law and the facts as they pertained to petitioner’s case and 6 therefore failed to properly present the case. 7 A 2255 motion is not the appropriate mechanism for raising an ineffective 8 assistance of counsel claim related to the defendant’s immigration counsel, because 9 there is a “lack of sufficient evidentiary record as to what counsel did, why it was done, 10 and what, if any, prejudice resulted.” See Correa-Rivera v. Holder, 706 F.3d 1128, 1130 11 (9th Cir. 2013) (citing Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003)). “Indeed, as 12 a practical matter, a motion to reopen [removal proceedings] is the only avenue ordinarily 13 available to pursue ineffective assistance of counsel claims.” Id. Accordingly, because 14 a 2255 motion is not the proper avenue for asserting an ineffective assistance of counsel 15 claim in relation to the defendant’s immigration counsel, this ground is therefore denied. 16 2. District Court Counsel 17 Ineffective assistance of counsel is a cognizable claim under § 2255. Baumann v. 18 United States, 692 F.2d 565, 581 (9th Cir. 1982). In order to prevail on a such a claim, 19 the defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 20 (1984). First, the defendant must show that his attorney’s performance fell below an 21 objective standard of reasonableness. Id. at 687-88. “Review of counsel’s performance 22 is highly deferential and there is a strong presumption that counsel’s conduct fell within 23 the wide range of reasonable representation.” United States v. Ferreira-Alameda, 815 24 F.2d 1251, 1253 (9th Cir. 1986). Second, the defendant must show that the deficient 25 performance prejudiced his defense. Strickland, 466 U.S. at 687. This requires showing 26 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the 27 result of the proceeding would have been different. A reasonable probability is a 28 1 probability sufficient to undermine confidence in the outcome.” Id. at 694. The defendant 2 must establish both deficient performance and prejudice in order to prevail on a § 2255 3 claim. United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). 4 Defendant asserts that counsel was ineffective for failure to file a direct appeal. 5 Defendant’s claim is without merit due to his entry into the Plea Agreement and evidence 6 in the record that the defendant “never requested that [counsel] file an appeal.” (See ECF 7 No. 45-1 at 5.) The defendant did not receive ineffective assistance of counsel for 8 counsel’s failure to file a direct appeal because he waived his right to appeal in the Plea 9 Agreement. See United States v. Stearns, 68 F.3d 328, 330 (9th Cir. 1995) (stating that 10 if plea agreement itself waived right to appeal, then probably no ineffective assistance 11 claim for failure to file appeal). Further, when asked by counsel if the defendant wished 12 to pursue a direct appeal, he informed his counsel that he did not. (See ECF No. 45-1 at 13 5.) Based upon the record before the court, counsel was not ineffective for failure to file 14 a direct appeal because the defendant waived his right to appeal and did not request that 15 his counsel file a direct appeal. 16 The defendant’s third ground for relief is hereby denied. 17 For the foregoing reasons, defendant’s motion to vacate, set aside, or correct 18 sentence pursuant to 28 U.S.C. § 2255 (ECF No. 37) is hereby DENIED. 19 C. Certificate of Appealability 20 The standard for issuance of a certificate of appealability calls for a “substantial 21 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The Supreme Court 22 has interpreted 28 U.S.C. § 2253(c) as follows: “Where a district court has rejected the 23 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 24 straightforward: The petitioner must demonstrate that reasonable jurists would find the 25 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 26 McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 27 (9th Cir. 2000). The Supreme Court further illuminated the standard for issuance of a 28 1 certificate of appealability in Miller-E/ v. Cockrell, 537 U.S. 322 (2003). The Court stated 2 in that case: 3 We do not require petitioner to prove, before the issuance of a COA, that 4 some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the 9 COA has been granted and the case has received full consideration, that 6 petitioner will not prevail. As we stated in Slack, “[w]here a district court has rejected the constitutional claims on the merits, the showing required to 7 satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the 8 constitutional claims debatable or wrong.” 9 Miller-El, 537 U.S. at 322 (quoting Slack, 529 U.S. at 484). 10 The court has considered the issues raised by defendant, with respect to whether 11 wg: they satisfy the standard for issuance of a certificate of appeal, and the court determines 12 that none meet that standard. The court therefore denies a certificate of appealability in 13 this case. 14 . D. Conclusion 18 For the reasons set forth above, it is hereby ordered that the defendant’s motion 1 6 to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 37) is 7 DENIED. 18 It is further ordered that a certificate of appealability is DENIED. 19 The Clerk of the Court shall enter judgment accordingly. 20 IT IS SO ORDERED. 21 DATED: This 8th day of August, 2019. 22 , brtasel MEK MMhE
24 UNITED STATES DISTRICT JUDGE 25 26 27 28 -6-