United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge.
before the Court is Nelson Garcia-Soto's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
(Dkt. 1). Having reviewed the motion, the government's
response (Dkt. 8), Garcia-Soto's Reply (Dkt. 12) and
underlying record, the Court will dismiss the motion.
pled guilty to possession with intent to distribute
methamphetamine pursuant to a written plea agreement. Rule 11
Plea Agreement, Crim. Dkt. 151. On May 24, 2013, this Court
imposed a below-guidelines sentence of 148 months and
judgment was entered on May 29, 2013. Crim. Dkt. 300.
Following sentencing, Garcia-Soto appealed his conviction to
the Ninth Circuit. The Ninth Circuit dismissed his appeal on
December 20, 2013. On March 5, 2015, Garcia-Soto filed the
pending § 2255 motion.
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. §
4(b) of the Rules Governing Section 2255 Proceedings provides
that a federal district court judge may summarily 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).
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."
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.
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).
raises three issues in this motion. First, he says the
government lacked “standing” to prosecute him, or
otherwise engaged in misconduct in deciding to charge him.
Second, he says polygraph evidence establishes his actual
innocence. Third, he claims that his counsel was ineffective.
Alleged Prosecutorial Misconduct
claim that the government lacked “standing” to
charge him fails on two grounds. First, Garcia-Soto waived
his ability to challenge the government's decision to
prosecute him. Second, the Government has wide discretion in
plea agreement includes a waiver, precluding him from
bringing a habeas petition on grounds other than ineffective
assistance of counsel. See Crim. Dkt. 151. A waiver is
enforceable if it is knowing and voluntary and the language
covers the grounds raised on appeal. United States v.
Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007) (emphasis
added). Knowing and voluntary waivers of appellate rights in
criminal cases are regularly enforced. United States v.
Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000).
Soto does not expressly claim that his waiver was unknowing
or involuntary. Rather, he briefly mentions that he entered
into the Agreement based on his counsel's incorrect
statements regarding his charges and sentencing guideline
terms. § 2225 Mem. at 4. Even so, the record indicates
that Garcia-Soto entered his plea agreement knowingly and
statements made in open court at the time of a plea hearing
carry a strong presumption of verity and are entitled to
great weight. Chizen v. Hunter,809 F.2d 560, 562
(9th Cir. 1986) (citing Blackledge v. Allison, 431
U.S. 63, 73-74 (1977)); see also United States v.
Kazcynski,239 F.3d 1108, 1114-15 (9th Cir. 2001)
("substantial weight" must be given to in-court
statements). While that presumption is not necessarily an
insurmountable barrier to an evidentiary hearing, contentions
that in the face of the record are "wholly
incredible" are subject to summary ...