United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court is Noel Diaz's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the record, including the record in the underlying criminal case, the Court will deny the petition.
Diaz was indicted on February 9, 2011, on one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; and one count of distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. (Dkt. 1.) Diaz entered into a plea agreement with the Government, in which he agreed to plead guilty to count one, and the Government agreed to dismiss count two. In that agreement, Diaz agreed to waive his appellate and 28 U.S.C. § 2255 rights. Plea Agreement, Ex. A, ¶ VI. On June 15, 2011, Diaz entered a knowing and voluntary plea before Magistrate Judge Ronald E. Bush. (Dkt. 33.) On September 14, 2011, Diaz was sentenced to 108-months imprisonment, four years of supervised release, and a $100 special assessment on Count One. (Dkt. 54.) Count Two was dismissed by the Government.
Diaz then filed a motion to vacate his sentence under 28 U.S.C. § 2255 on March 20, 2012.
Section 2255 provides four grounds that justify relief for a federal prisoner who challenges the fact or length of his detention: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). 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).
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); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quotation omitted). To obtain an evidentiary hearing, a 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). Conclusory statements, without more, are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
Diaz moves to vacate his sentence based on two ineffective-assistance-of-counsel claims. Diaz alleges that his counsel was ineffective because: (1) his counsel failed to argue any mitigating factors that would have persuaded the court to impose a lesser sentence; and (2) his counsel failed to inform him of the Fast Track Program, which would have allowed him to be deported sooner rather than serving his entire 108-month sentence before deportation. Def.'s Mot., Dkt. 1. Even accepting the truth of Diaz's factual allegations, no hearing is warranted. The Court will decide the motion based on the briefing and the record.
1. Waiver of Appeal Rights
The Government contends that Diaz waived his right to bring the claims alleged in his § 2255 Motion. A review of the Plea Agreement and the plea colloquy supports this contention.
Pursuant to the Plea Agreement, in return for the concessions made by the Government, Diaz agreed to waive his right to appeal or to seek relief under § 2255 except under certain limited circumstances. Plea Agreement ¶ VI, Dkt. 5. More specifically, Diaz agreed to waive his right to file a § 2255 motion except for one alleging ineffective assistance of counsel based solely on information not known to his at the time sentence was imposed and ...