United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is Defendant Rogelio Rodriguez-Juarez's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody , filed November 13, 2012, pursuant to Title 28, United States Code, Section 2255. Defendant seeks to set aside his March 17, 2011, Judgment of Conviction  for illegal reentry by a deported alien after an aggravated felony. Former defense counsel Ms. Ellen Allred has filed a Response , and the Government has also filed a Response . After due consideration of the issues presented, the record, and relevant legal authorities, the Court is of the opinion that the Motion should be denied.
I. FACTS AND PROCEDURAL HISTORY
On October 14, 2010, Defendant was charged in a criminal Complaint  and appeared before the Court. Attorney Scott Davis was initially appointed as counsel for Defendant. Minute Entry October 14, 2010. Defendant, with the assistance of a sworn interpreter, requested and was granted a preliminary hearing. Id. On October 15, 2010, Assistant Federal Public Defender Ellen Allred entered her appearance as counsel for Defendant. Notice of Att'y Appearance . On October 18, 2010, a hearing was held before United States Magistrate Judge Robert Walker. Defendant, his counsel, and an interpreter appeared. Minute Entry October 18, 2010. During the hearing, Defendant executed a Waiver of Preliminary Hearing  and was detained.
A single count Indictment  was filed November 3, 2010, which charged that:
on or about October 14, 2010, in Harrison County... Rogelio Rodriguez-Juarez, an alien to the United States and citizen of Mexico, having previously been convicted... of the offense of... an aggravated felony, and deported from the United States on or about June 8, 2009, was found in the United States without having received the permission of the Attorney General of the United States or the Secretary of Homeland Security to re-enter the United States, all in violation of 8 U.S.C. §§ 1362(a)(2) and 1362(b)(2).
Indictment 1 .
On December 15, 2010, Defendant filed a Notice of Intent to Plead Guilty . On December 21, 2010, Defendant entered into a written Plea Agreement  with the Government and entered a plea of guilty to Count One of the Indictment. A sealed Plea Supplement  was also entered on December 21, 2010, setting forth certain obligations on the part of Defendant and the Government. Ms. Allred represented Defendant during this proceeding.
On March 11, 2011, the Court sentenced Defendant to 46 months imprisonment. Minute Entry March 11, 2011. In addition, Defendant was sentenced to a three year term of supervised release and a mandatory special assessment in the amount of $100.00. Id. The Judgment of Conviction  was executed and filed on March 17, 2011. A Notice of Appeal  was filed on behalf of Defendant on March 21, 2011, by Ms. Allred. The Fifth Circuit Court of Appeals granted the Government's Motion to Dismiss the appeal by Order  entered on September 26, 2011.
Defendant, proceeding pro se, filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255 on November 13, 2012 , along with a Memorandum in Support . Defendant alleges violations of due process resulting from ineffective assistance of counsel as grounds for relief. Pet.  at pp. 4-6. On February 4, 2013, Ms. Allred filed a Response to Defendant's § 2255 Petition. On March 11, 2013, the Government likewise filed a Response .
A. Legal Standard
There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see also United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992). "[O]n collateral attack, a defendant is limited to alleging errors of a constitutional or jurisdictional magnitude.'" United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (quoting United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)). Upon a conviction and exhaustion of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); Shaid, 937 F.2d at 231-32. Relief under § 2255 is therefore reserved for violations of constitutional rights and for a narrow range of injuries which could not have been raised on direct appeal and which, if condoned, would result in a complete miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
B. Waiver of Right to Assert Claims Under 28 U.S.C. § 2255
When Defendant entered his negotiated plea of guilty, he did so pursuant to a written Plea Agreement  which contained an unambiguous waiver of his right to appeal or collaterally attack the sentence in any post-conviction proceeding, including pursuant to a motion brought under 28 U.S.C. § 2255. Plea Agreement 4-6, ¶ 7 (a)-(e) . The Plea Agreement states, in relevant part, as follows:
Defendant, knowing and understanding all of the matters aforesaid, including the maximum possible penalty that could be imposed, and being advised of Defendant's rights to remain silent, to trial by jury, to subpoena witnesses on Defendant's own behalf, to confront the witnesses against Defendant, and to appeal the conviction and sentence, in exchange for the U.S. Attorney entering into this plea agreement and accompanying plea supplement, hereby expressly waives the following rights:
a. the right to appeal the conviction and sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Title 18, United States Code, Section 3742, or on any ground whatsoever, and
b. the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255, and any type of proceeding claiming double jeopardy or excessive penalty as a result of any forfeiture ordered or to be ordered in this case....
Plea Agreement 4-5, ¶ 7 (a)-(b) .
A defendant may, as part of a plea agreement, waive the right to appeal, United States v. Cuevas-Andrade, 232 F.3d 440, 446 (5th Cir. 2000); United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992), and the right to seek post-conviction relief, United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In Wilkes, the Fifth Circuit Court of Appeals upheld a waiver of post-conviction relief under 28 U.S.C. § 2255 on grounds that "an informed and voluntary waiver of post-conviction relief is effective to bar such relief. Such a waiver may not always apply to a collateral attack based upon ineffective assistance of counsel...." Id. at 653 (internal citations omitted). The Fifth Circuit determined that counsel could not "be considered deficient for failing to raise claims knowingly and voluntarily waived in the process of plea bargaining." Id .; see also United States v. Hollins, 97 F.Appx. 477, 479 (5th Cir. 2004).
Here, Defendant raises the following instances of allegedly deficient performance on the part of his counsel, stating that these grounds were not available at the time his direct appeal was filed and pending:
1) Counsel failed to investigate and later collaterally attack the invalid deportation order.
2) Defendant was unaware of the availability of collateral attack, therefore his guilty plea was not considered and intelligently entered into.
3) Defendant did not waive his right to be represented by counsel.
4) The underlying charge resulting in Defendant's deportation order was not a crime of moral turpitude and he was not ...