The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Before the Court is a Petition (Dkt. 1) to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, by Defendant/Petitioner Juan Luis Gomez-Regin a/k/a Juan Jose Dominguez-Gomez. The motion is fully briefed and at issue. Also pending is Defendant's Request for an Evidentiary Hearing (Mot., Dkt. 4), and request to Amend Motion (Dkt. 8). Being familiar with the record and having considered the parties' briefing, the Court will grant Defendant's request to Amend Motion (Dkt. 8), but ultimately deny Defendant's Petition under § 2255, as well as Defendant's Motion for a Hearing (Dkt. 4), as more fully expressed below.
Defendant was indicted on charges of conspiracy to distribute methamphetamine, distribution of methamphetamine, and forfeiture (Indictment, Dkt. 1 in criminal case).*fn1
The Court appointed counsel Leo Griffard to represent Defendant. (Minutes, Dkt. 31). Defendant entered into an agreement, pleading guilty to conspiracy to distribute methamphetamine and forfeiture. (Plea Agreement, Dkt. 75).
In the agreement, Defendant waived collateral attacks on his sentence, but retained the right to file one § 2255 motion in limited circumstances. (Id. at 12; see discussion below). Defendant also acknowledged that he reviewed each part of the agreement carefully, and understood their effect on his potential sentence; he further agreed that he discussed his rights with counsel, and that he was satisfied with his counsel's representation and advice. (Id. at 16).
The Court conducted a change of plea hearing at which Defendant responded -- under oath -- to several questions concerning his plea. (Plea Trans., Dkt. 146 at 3-4). The Court engaged in an extensive colloquy with Defendant about his rights, the potential penalties for his crime, and each of the provisions of his plea agreement. (Id. at 9-13, 17-20). Defendant stated that he understood, that he intended to plead guilty, that his plea was voluntary and of his own free will, and that he admitted the facts sustaining his guilt; Defendant pleaded guilty and the Court accepted his plea. (Id. at 13, 19-21).
A Pre-Sentence Investigation Report proposed an increased offense level for Defendant's aggravating role in the offense, and Defendant filed an objection. (Objection, Dkt. 106). At his sentencing hearing, Defendant confirmed that his only objection was that submitted in writing. (Sentencing Trans., Dkt. 147 at 3). The Court overruled Defendant's objection and sentenced him to 144 months imprisonment, which was -- however -- a 7 month departure from the advisory guideline range of 151-188 months. (Id. at 18-19; Judgment, Dkt. 128).
Defendant timely appealed (Not. of Appeal, Dkt. 129), and on March 17, 2011, the Ninth Circuit issued a Memorandum decision denying his appeal (Mem., Dkt. 157). Defendant promptly filed this motion under § 2255, on the following grounds: (1) that his sentence was not founded on evidence, (2) abuse of discretion by the Court given the lack of evidence, (3) violation of due process, and (4) miscarriage of justice. (Mot., Dkt. 1 in civil case). In a Motion to Amend, Defendant seeks to add the additional claim that he received ineffective assistance of counsel. (Mot., Dkt. 8 in civil case).
A prisoner asserting the right to be released "may move the court which imposed the sentence to vacate, set aside or correct the sentence" under 28 U.S.C. § 2255(a). Section 2255 provides four grounds that justify relief for a federal prisoner who challenges the fact or length of his detention: (1) whether "the sentence was imposed in violation of the constitution or laws of the United States;" (2) whether the court was without jurisdiction to impose such sentence; (3) whether the sentence was "in excess of the maximum authorized by law;" or (4) whether the sentence is "otherwise subject to collateral attack." See Hill v. United States, 368 U.S. 424, 428 (1962). Despite this seemingly broad language, "the range of claims which may be raised in a § 2255 motion is narrow." United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
The Court recognizes that a response from the government and a prompt hearing are required "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .." 28 U.S.C. § 2255(b). Further, a hearing must be granted unless the movant's allegations, "when viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985) (citations omitted); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). A district court may summarily dismiss a § 2255 motion "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief . . .." Rule 4(b), Rules Governing § 2255 Proceedings in the United States District Court. Thus, in order to withstand summary dismissal of his motion for relief under § 2255, the defendant "must make specific factual allegations which, if true, would entitle him to relief on his claim." United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990).
Section 2255 is not a substitute for appeal. Addonizio, 442 U.S. at 184. "Errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255." United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981). Where a defendant fails to raise claims on direct review, those claims are procedurally defaulted unless he can demonstrate cause for and prejudice from the procedural default, or actual innocence. United States v. Ratigan, 351 F.3d 957, 962 (2003)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). However, when a particular issue "has been decided ...