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United States v. Sperow

United States District Court, D. Idaho

March 30, 2015

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
GREGORY FRANK SPEROW, Defendant-Movant. No. 1:06-cr-00126-BLW

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

INTRODUCTION

Pending before the Court is Gregory Frank Sperow's Motion to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) and (Crim. Dkt. 1207), the Government's Motion to Dismiss (Civ. Dkt. 27), and Sperow's Motion Pursuant to Federal Rules of Civil Procedure, Rule 15(d) (Civ. Dkt. 45). Having reviewed the Motions, Responses, Replies, and the underlying criminal record, the Court enters the following Order denying Sperow's Rule 15(d) Motion, granting the Government's Motion to Dismiss, and dismissing the § 2255 Motion.

BACKGROUND

The Government has provided a lengthy factual background of this case in its Motion to Dismiss. See Motion to Dismiss, Civ. Dkt. 27 at 2-12. Therefore, the Court will provide only a truncated summary here. The procedural background is somewhat complicated and thus set forth in more detail.

1. Factual Background

On June 19, 2006, Sperow was indicted by a federal grand jury in the District of Idaho along with eleven other individuals and charged with drug trafficking, money laundering, and forfeiture. Indictment, Crim. Dkt. 1. Sperow and five others were also charged with operating a continuing criminal enterprise from 1975 through June 16, 2006, in over twenty states. Id. The 196-page indictment included 98 predicate acts in connection with the criminal enterprise count. Id. The enterprise involved primarily marijuana, but also involved methamphetamine, cocaine, and hashish.

During the period of the conspiracy and the continuing criminal enterprise, Sperow was convicted of drug trafficking charges in the districts of New Mexico, Southern California, and Oregon and sentenced to lengthy terms of incarceration in each case. PSR ¶¶ 410, 412, and 413. Sperow had been indicted by a federal grand jury in the district of Oregon on February 14, 1996. PSR ¶ 416. However, he left Oregon and became a fugitive for approximately eight years until his arrest on May 26, 2004, and subsequent conviction. PSR ¶ 418. During his time as a fugitive, he continued his drug trafficking and money laundering activities. As relevant here, Sperow was alleged to have been a source of drugs in the Kent Jones drug trafficking organization and was involved in shipping and distributing drugs throughout the United States and Idaho working with various co-Defendants.

2. Procedural Background

A. Pre-Conviction

Sperow was incarcerated on the District of Oregon conviction at the time the Indictment was issued in the District of Idaho on September 13, 2006. He was not arraigned until January 3, 2007, yet he filed pro se documents challenging the Court's jurisdiction prior to that time. At the arraignment, Attorney Phillip Gordon was appointed as stand-by counsel due to Sperow's refusal to accept his services. Sperow continued filing pro se motions and sought to terminate Attorney Gordon's services even as standby counsel.

A Superseding Indictment was returned against Sperow and fourteen other Defendants on May 23, 2007. At this point, Sperow agreed to be represented by Attorney Gordon. From approximately October 24, 2007 through December 7, 2007, nine of the fourteen co-Defendants entered Plea Agreements and one passed away.

On January 9, 2008, a Second Superseding Indictment was returned against Sperow and two of his co-Defendants. Twelve co-Defendants were not named in the Second Superseding Indictment because they had already agreed to plead guilty, had been dismissed, or otherwise reached agreements with the Government resulting in later dismissal in exchange for pleading guilty in related cases.

From the time the Second Superseding Indictment was filed until he entered into a Plea Agreement, Sperow, through Attorney Gordon, filed various motions, including Motion to Sever (Crim. Dkt. 482) (subsequently withdrawn by Crim. Dkt. 617), Motion to Dismiss for Speedy Trial Violations (Crim. Dkt. 484), Motion to Dismiss for Vindictive Prosecution (Crim. Dkt. 486), Motion to Dismiss for Preindictment Delay (Crim. Dkt. 489), Motion to Change Venue (Crim. Dkt. 495), Joinder in Certain Motions Filed by Defendant Weitzman (Crim. Dkt. 500), and Notice of Intent to Assert and Rely on Statute of Limitations (Crim. Dkt. 502). The Court denied the various Motions. See Mem. Dec. and Order, Crim. Dkt. 616. Sperow's earlier pro se Motion for Discovery (Crim. Dkt. 180), Motion for Discovery (Crim. Dkt. 181), and Motion for Order to Show Cause (Crim. Dkt. 132) were deemed moot. Docket Entry Order, Crim. Dkt. 658.

On August 28, 2008, shortly after Sperow's counseled motions were denied, he entered into a binding Plea Agreement pursuant to Rule 11(c)(1)(C) containing an agreed upon sentencing range and reserving the right to appeal the denial of his Motion to Dismiss for Speedy Trial Violations and Motion to Dismiss for Pre-Indictment Delay. Plea Agreement, Crim. Dkt. 661.

On September 3, 2008, Sperow entered his plea of guilty to conspiracy to distribute/possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count Two); conspiracy to launder money in violation of 18 U.S.C. § 1956(h) (Count Three); drug forfeiture pursuant to 21 U.S.C. § 853(a)(1) and (2) (Count Seven); and money-laundering forfeiture pursuant to 18 U.S.C. § 982(a)(1) (Count Eight). Amended Plea Agreement, Crim. Dkt. 666.[1] Counts Seven and Eight sought forfeiture of cash proceeds of $16, 000, 000 and the property described in Count Six which included thirteen parcels of real property, thirteen bank accounts, six conveyances including motor vehicles and aircraft, currency, computer and hard drive, and the property and proceeds thereof of ten businesses.

In exchange for the plea, the Government agreed to the binding nature of the plea agreement and further agreed to (1) withdraw the Information filed pursuant to 21 U.S.C. § 851 (Crim. Dkt. 438) relating to Sperow's prior drug trafficking convictions which increased the statutory maximum sentence to mandatory life; (2) dismiss Counts One (Continuing Criminal Enterprise), Four (Conspiracy to Structure Transactions, Launder Money, and Use Interstate Facilities), Five (Conspiracy to Travel and Transport in Aid of Racketeering Enterprise), Six (Continuing Criminal Enterprise Forfeiture), Nine (Money Laundering and Travel and Transport in Aid of Racketeering Forfeiture), and Ten (Conspiracy to Structure Transactions Forfeiture); (3) a sentencing range of 15.5 to 19.5 years subject to compliance with a cooperation agreement; and (4) recommend that the sentence run concurrently with his District of Oregon sentence. Id. at 1-2. The Government also agreed to certain concessions in the forfeiture portion of the Plea Agreement. Id. at 8-11. In terms of sentencing and monetary exposure, Sperow was relieved of the twenty-year to life sentence for the charge in Count One and the five-year maximum sentences for Counts Four and Five as well as fines of up to $2, 000, 000 and $250, 000, respectively. PSR ¶ 442. In addition, he was relieved of the § 851 enhancement which would have otherwise dictated a life sentence on Count Two. PSR ¶ 443.

The sentencing hearing was held on June 17, 2009 and June 25, 2009. Minutes, Crim. Dkts. 860 and 870 as amended by 873. The Court imposed a sentence of 181 months incarceration on each of Counts Two and Three to run concurrently after having started the computation at the high end but within the agreed upon sentencing range in the Plea Agreement. Judgment, Crim. Dkt. 883.

B. Post-Conviction

Sperow unsuccessfully appealed the reserved issues. USCA Mem. Dec., Crim. Dkt. 1130. On January 25, 2010, he filed a pro se Notice of Conditional Acceptance for Value and Return for Value, the Order Allowing Discovery in Criminal Ancillary Proceeding Upon Proof of Claim (Crim. Dkt. 1037) claiming that he was a "Secured Party Creditor." The Court ordered it stricken from the record as an improper pleading unrelated to any matter before the Court. Order, Crim. Dkt. 1048. On May 20, 2011, he filed a pro se Notice of Appeal of the Final Order of Forfeiture as to Real Property Located in Lancaster, California entered on May 9, 2011. Notice of Appeal, Crim. Dkt. 1154. The Ninth Circuit dismissed the appeal as untimely on November 15, 2011. USCA Order, Crim. Dkt. 1179.

On May 23, 2011, Sperow filed a pro se Motion to Stay Final Order of Forfeiture as to Real Property Located in Lancaster, California, Pending Appeal and Pursuant to Rule 32.2(d) of the Federal Rules of Criminal Procedure (Crim. Dkt. 1155). The Court denied the Motion. Order, Crim. Dkt. 1174.

On March 27, 2012, Sperow timely filed the pending § 2255 Motion alleging sixteen grounds of ineffective assistance of counsel at various stages of the criminal proceeding and one ground of procedural denial of effective assistance of counsel prior to arraignment. On May 17, 2012, while the Government's response was still pending, Sperow filed a Motion to Amend Movant's Motion to Vacate, Set Aside, or Correct a Sentence (Civ. Dkt. 9) which primarily sought to add a claim of ineffective assistance of counsel at the plea stage. The Court denied the Motion on the grounds that it did not relate back to the initial claims and was therefore time-barred. Mem. Dec. Order, Civ. Dkt. 11.

On November 9, 2012, the Government filed the pending Motion to Dismiss primarily arguing that Sperow had waived his right to file his § 2255 Motion on the grounds raised and also arguing that each claim was subject to dismissal on the merits. At the time the Government filed the Motion to Dismiss, two of Sperow's motions were still pending. The Motions have since been resolved as discussed below.

On August 12, 2012, Sperow filed a Motion Pursuant to F.R. Civ. P. Rule 15(d) (Civ. Dkt. 14) in which he sought to supplement his § 2255 Motion based on the then recent Supreme Court decisions of Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012). He claimed those decisions were not available to him at the time he submitted his § 2255 Motion and again sought to raise issues pertaining to the plea process. The Court subsequently denied that Motion on the grounds that those decisions could not be used to defeat the one-year statute of limitations provision of 28 U.S.C. § 2255(f)(1). Mem. Dec. and Order, Civ. Dkt. 43. The Court also denied Sperow's Motion to Withdraw Petitioner's Motion Under 28 U.S.C. § 2255 and to Resubmit Anew Within 180 Days While Not Being Construed as a Second Successive Motion Under 28 U.S.C. § 2255 (Civ. Dkt. 30) on the grounds that Sperow was again seeking to add new claims beyond the statute of limitations. Id.

On June 28, 2013, Sperow filed another Motion Pursuant to Federal Rules of Civil Procedure, Rule 15(d) (Civ. Dkt. 45) which is currently pending and is addressed below.

It is important to note that both the Government and Sperow had made several requests for extensions of time for responding to various pleadings which the Court granted thus resulting in considerable delay in resolving the § 2255 Motion. Sperow eventually responded to the Government's Response and Motion to Dismiss on July 29, 2013. See Civ. Dkts. 50 and 51. Those documents were inadvertently and unnecessarily docketed as motions and will be deemed moot as motions but have been considered in resolving the § 2255 Motion. Briefing of all issues was completed on September 30, 2013. See Sperow's Reply, Civ. Dkt. 59.

In the midst of these proceedings, Sperow filed a Notice of Appeal of the Court's Memorandum Decision and Order (Civ. Dkt. 43) denying his Motion to Withdraw and Motion to Supplement and of the Court's Memorandum Decision and Order (Civ. Dkt. 44) denying a prior request for unsealing various documents. Notice of Appeal, Civ. Dkt. 46; Amended Notice of Appeal, Civ. Dkt. 47. The Ninth Circuit dismissed his appeals on the grounds of lack of jurisdiction given that the challenged orders were neither final nor appealable. USCA Order and Mandate, Civ. Dkts. 56 and 60.

Finally, the Government has stated and Sperow has not denied that despite the waiver in the Plea Agreement he had filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in March and June of 2013 in the Central District of California. Govt. Resp. at 2-3. The first challenged the computation of his sentence. See Gregory Frank Sperow v. United States of America, 13-cv-1940-DMG(JCG). The second challenged the legality of his sentence on several of the same grounds contained in his pending § 2255 Motion. See Gregory Frank Sperow v. Conrad M. Graber, 13-cv-4244-DMG(JCG). The Court has confirmed that both cases have been dismissed without prejudice either upon the Government's motion to dismiss or Sperow's motion to withdraw his petition.

MOTION PURSUANT TO FRCP 15(d)

In this Motion, Sperow moves the Court to allow him to supplement his § 2255 Motion with claims based on two recent Supreme Court decisions in Peugh v. United States, 133 S.Ct. 2072 (2013), and Alleyne v. United States, 133 S.Ct. 2151 (2013). Sperow more specifically claims based on Peugh and Alleyne that his constitutional rights were violated because counsel failed to raise the issue that he was sentenced based on an allegedly incorrectly calculated career offender enhancement and uncharged relevant conduct which increased the penalties and based on the Court's "application of the one book rule in violation of the ex post facto clause" and that counsel was ineffective for failing to raise those arguments. The Court shall deny the Motion.

As the Government noted in its response to this current Rule 15(d) motion, this is not the first time Sperow has sought to supplement his initial § 2255 Motion with subsequently decided Supreme Court cases - he previously sought to supplement his § 2255 Motion to assert claims under Lafler v. Cooper and Missouri v. Frye . See Civ. Dkt. 14. The Court denied the Motion both as a Rule 15(d) motion to supplement and as a Rule 15(a) motion to amend. Mem. Dec. and Order, Civ. Dkt. 43.

The Court denied the Motion as a Rule 15(d) motion on the grounds that the Rule applies to "new facts bearing on the relationship between the parties, rather than merely changes in the law governing those facts." Id. at 3 (citing United States v. Hicks, 283 F.3d 381, 385 (D.C. Cir. 2002) (treating prisoner's motion to supplement based on Apprendi v. New Jersey, 530 U.S. 466 (2000), decided after he filed his § 2255 motion, as a motion to amend pursuant to Rule 15(a)). In other words, the Rule does not apply to intervening judicial decisions. Id. The Court denied the Motion as a Rule 15(a) motion on the grounds that it was an untimely motion to amend to add claims that did not relate back to those in the initial pleading. Id. at 4 (citing Mayle v. Felix, 545 U.S. 644, 650 (2005)). Here, Peugh and Alleyne likewise are intervening judicial decisions and, likewise, the claims arising out of those decisions do not relate back to the claims of ineffective assistance of counsel in the initial timely-filed § 2255 Motion.

However, even if Peugh and Alleyne were properly and timely raised, this claim would fail.

A. Peugh

Peugh held that sentencing a defendant under the United States Sentencing Guidelines in effect at the time of sentencing that results in a greater sentence than would have resulted under guidelines in effect at the time of the offense violates the Ex Post Facto Clause even with the guidelines being advisory. Peugh, 133 S.Ct. at 2088 (reversing and remanding for application of fraud guidelines in effect at the time of the offense rather than those in effect at the time of sentencing).

When Sperow indicated in a previous filing that he wanted to pursue claims under Peugh, the Court determined that Peugh was inapplicable. Mem. Dec. and Order at 11-12, Civ. Dkt. 43. The erroneous premise of Sperow's argument is that the date of the beginning of the conspiracy dictates the version of the guidelines to be used. Peugh does not stand for that proposition. To the contrary, as the Court advised Sperow in its earlier decision, the last date of an offense determines which version of the guidelines applies. Id. at 12. See United States v. Fan Xu, 706 F.3d 965 (9th Cir. 2013). See also USSG § 1B1.11, comment. (n.2) ("the last date of the offense of conviction is the controlling date for ex post facto purposes"). Sperow's claim also fails because courts addressing the issue since Peugh was decided have determined that Peugh does not apply retroactively to cases such as this that are on collateral review. See, e.g., Hawkins v. United States, 724 F.3d 915, 916-17 (7th Cir. 2013); Spencer v. United States, 773 F.3d 1132, 1144 (11th Cir. 2014); Herrera v. Warden, FCC Coleman-USP I, ___ Fed.Appx. ___, 2015 WL 77404 at 3 (11th Cir. Jan. 7, 2015).

B. Alleyne

Alleyne held that any fact that increases the mandatory minimum sentence for a crime is an element of the crime and not a sentencing factor and thus must be submitted to a jury. Alleyne, 133 S.Ct. at 2155.

Sperow's claim based on Alleyne, even if it were otherwise applicable, would be subject to dismissal. The Ninth Circuit, along with several other Circuits, has decided that Alleyne, an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000), was not a watershed rule of criminal procedure and that the Supreme Court has not made it retroactive to cases on collateral review. See Hughes v. United States, 770 F.3d 814, 815, 818-19 (9th Cir. 2014). However, even if it were retroactive, the claim would be subject to dismissal because application of the career offender enhancement (discussed below) based on his prior convictions did not increase the mandatory minimum of ten years applicable to his drug conspiracy charge. Rather, it merely increased the guideline range which was then considered by the Court in deciding whether to accept the binding Plea Agreement.

§ 2255 MOTION

STANDARD OF LAW

1. 28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (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).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." "Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are palpably incredible or patently frivolous.'" United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).

If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."

The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.

If the Court does not dismiss the proceeding, the Court then determines under Rule 8 whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

2. Ineffective Assistance of Counsel

The well-established two-prong test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668 (1984). Mere conclusory allegations are insufficient to state a claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).

In order to establish deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance." Id. at 689. This is so because for the defendant, "[i]t is all too tempting... to second-guess counsel's assistance after conviction or adverse sentence...." Id. For the court, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland ).

In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (noting that the court should "assess counsel's overall performance throughout the case" when evaluating whether his assistance was reasonable).

Both prongs of the Strickland test must be met "before it can be said that a conviction (or sentence) resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable' and thus in violation of the Sixth Amendment." United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687).

Whether or not counsel's performance was deficient is irrelevant if there was no prejudice as both of Strickland 's prongs must be met to be entitled to relief. In evaluating an ineffective assistance of counsel claim, a court may consider the performance and prejudice components of the Strickland test in either order. Strickland, 466 U.S. at 697.

As recently reiterated by the Supreme Court, a defendant's right to effective assistance of counsel has long been held to apply to the plea process. See Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012); Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985). The same Strickland standard applies to claims of ineffective assistance of counsel at the plea stage. Hill, 474 U.S. at 58.

DISCUSSION

Sperow initially sought to have the Judgment vacated or set aside and his sentence vacated based on sixteen grounds of ineffective assistance of counsel and one ground of denial of pre-arraignment counsel. § 2255 Motion at 14. Only after the Government filed its Motion to Dismiss based on waiver did he raise the issue that his plea was involuntary and that the Government or the Court breached the Plea Agreement. He claims in his Response that his plea was not knowingly and voluntarily made because he would not have pleaded guilty had he known that the career offender guideline would not apply to him and that the Government breached the Plea Agreement by proceeding with forfeiture of two specific properties. This appears to be the latest effort to raise issues regarding the plea and ineffective assistance of counsel pertaining to the plea that the Court has consistently held to be time barred.

The Supreme Court has recognized that "[p]lea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks" of a plea. Premo v. Moore, 131 S.Ct. 733, 741 (2011). Not only is the decision to enter a plea a difficult decision, a decision to seek withdrawal of a favorable plea agreement after sentencing is difficult as well. To collaterally challenge a guilty plea and request that it be set aside involves assuming considerable risk given that a successful challenge will result in the loss of any benefits provided by the plea bargain (such as dismissal of a more serious charge) and "may result in a less favorable outcome." Padilla v. Kentucky, 559 U.S. 356, 373 (2010). However, as the Government notes, Sperow appears to want to retain the benefits of the Plea Agreement and improve on them.

Although the guideline calculation informed the Court's decision as to whether or not to accept the binding Plea Agreement, it is important to note that Sperow's sentence was based on the agreed upon range in the Rule 11(c)(1)(C) Plea Agreement and not under the sentencing guidelines. Because some awareness of his exposure under the guidelines may have informed Sperow's decision to plead guilty, a discussion of the guideline calculation is necessary. It is also noteworthy that in the absence of the Government's agreement to withdraw the § 851 Information, Sperow would have received a mandatory life sentence if convicted. Even with the enhancement withdrawn, if Sperow had been sentenced under the guidelines, he would have faced a sentencing range of 360 to life absent any downward departures.

1. Waiver

A defendant may waive his statutory right to file a § 2255 motion challenging his sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). However, a plea agreement must expressly state that the right to bring a § 2255 motion is waived in order for the waiver to be valid. United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) (finding that language in plea agreement that "he will not appeal whatever sentence is imposed by the court" did not constitute a waiver of the right to bring a § 2255 motion). "The sole test of a waiver's validity is whether it was made knowingly and voluntarily." United States v. Anglin, 215 F.3d 1064, 1068 (9th Cir. 2000). The scope of such a waiver is demonstrated by the express language of the plea agreement. Id. Nevertheless, even an express waiver may not bar an ineffective assistance of counsel claim challenging the knowing and voluntary nature of the plea agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007). See also Washington v. Lampert, 422 F.3d 864, 870 (9th Cir. 2005) (same in context of § 2254 habeas petition).

A. Plea Agreement

The Plea Agreement at issue expressly stated that the right to bring a § 2255 motion was waived:

A. In exchange for the Government's concessions in this Plea Agreement, with the exception of defendant's Motion to Dismiss for Speedy Trial Violations (Docket No. 490), and Motion to Dismiss for Pre-Indictment Delay (Docket No. 489), and as provided in subparagraph B, the defendant waives to the full extent of the law any right to appeal or to collaterally attack the conviction, entry of judgment, sentence (including any restitution or forfeiture order), or entry of sentence. This waiver includes ...

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