1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE MORGAS-MENDOZA, Civil No.: 16cv02005 JAH Criminal No.: 16cr00837 JAH 12 Petitioner,

13 v. ORDER DENYING MOTION TO

VACATE

14 UNITED STATES OF AMERICA, 15 Respondent. 16 17 Petitioner Jorge Morgas-Mendoza, proceeding pro se, filed a motion challenging his 18 conviction under 28 U.S.C. § 2255 (“section 2255”). Respondent filed a response. After 19 a thorough review of the record and the parties’ submissions, and for the reasons set forth 20 below, this Court DENIES Petitioner’s motion. 21 BACKGROUND 22 On March 22, 2016, Petitioner was arrested by a United States Border Patrol agent 23 after attempting to conceal himself in a brush approximately three miles east of the Otay 24 Mesa Port of Entry and admitting he did not possess proper immigration documents. Doc. 25 No. 1 at 2. On April 21, 2016, Petitioner signed a waiver of indictment and the United 26 States Attorney filed a superseding information charging Defendant with illegally 27 reentering the United States after deportation in violation of 8 U.S.C. § 1326(a)-(b). See 28 1 Doc. No. 11. On May 3, 2016, Petitioner pled guilty to the superseding information 2 pursuant to a plea agreement. See Doc. No. 17. 3 In the plea agreement, the parties agreed to a base offense level of 8, and -3 levels 4 for acceptance of responsibility. Doc. No. 17 at 8. Petitioner also agreed to waive appeal 5 and collateral attack. Doc. No. 17 at 10-11. After Petitioner entered his change of plea, 6 the United States recommended Petitioner be sentenced to the maximum amount permitted 7 under the guideline range of 46 months in custody. Doc. No. 22 at 2. Defense counsel 8 recommended Petitioner be sentenced to 8 months in custody. Doc. No. 24-1 at 1. 9 At the sentencing hearing on July 25, 2016, this Court sentenced Petitioner to 30 10 months in custody, followed by a three-year term of supervised release. See Doc. No. 30. 11 Thereafter, Petitioner filed the instant motion seeking to vacate or set aside his sentence 12 and the United States filed a response in opposition. See Doc. Nos. 27, 31. 13 DISCUSSION 14 Petitioner seeks an order modifying on the grounds he received ineffective assistance 15 of counsel and he was sentenced outside his guideline range. Respondent argues the 16 motion should be denied because defense counsel was not ineffective, and his claim is 17 barred by the appellate waiver in the plea agreement. 18 I. Legal Standard 19 A section 2255 motion may be brought to vacate, set aside or correct a federal 20 sentence on the following grounds: (1) the sentence “was imposed in violation of the 21 Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose 22 such sentence;” (3) “the sentence was in excess of the maximum authorized by law;” or (4) 23 the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). 24 II. Analysis 25 Petitioner waived his right to appeal or collaterally attack his judgment and sentence. 26 Doc. No. 17 at 10-11. A knowing and voluntary waiver of a statutory right is enforceable. 27 United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to 28 collaterally attack a sentence pursuant to 28 U.S.C. section 2255 is statutory in nature, and 1 a defendant may therefore waive the right to file a section 2255 petition. See United States 2 v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering plea agreement 3 whereby defendant waived right to appeal his sentence, defendant relinquished right to 4 directly or collaterally attack his sentence on the ground of newly discovered exculpatory 5 evidence). 6 The scope of a section 2255 waiver may be subject to potential limitations. For 7 example, a defendant’s waiver will not bar an appeal if the trial court did not satisfy certain 8 requirements under Federal Rule of Criminal Procedure 11 to ensure that the waiver was 9 knowingly and voluntarily made. See Navarro-Botello, 912 F.2d at 321. Such a waiver 10 might also be ineffective where the sentence imposed is not in accordance with the 11 negotiated agreement or violates the law. See Id.; United States v. Littlefield, 105 F.3d 12 527, 528 (9th Cir. 1997). Additionally, a waiver may be “unenforceable” and may not 13 “categorically foreclose” a defendant from bringing section 2255 proceedings where a 14 petitioner claims ineffective assistance of counsel challenging the voluntariness of his plea. 15 Lampert, 422 F.3d at 871; Abarca, 985 F.2d at 1014; see also United States v. Pruitt, 32 16 F.3d 431, 433 (9th Cir. 1994). 17 To establish an ineffective assistance of counsel claim, two requirements must be 18 met: (1) That the counsel’s performance was deficient, which requires a showing that 19 counsel made errors so serious that he/she was not functioning as the “counsel” guaranteed 20 by the Sixth Amendment; and (2) That the counsel’s deficient performance prejudiced the 21 petitioner, which requires a showing that counsel’s errors were so serious they deprived 22 the petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). 23 The record demonstrates Petitioner’s waiver was made knowingly and voluntarily. 24 In the plea agreement, Defendant certified that he read the agreement and fully understood 25 its meaning and effect. See Doc. No. 17 at 5. In his motion, Petitioner contends his counsel 26 was ineffective because she coerced him into signing the plea agreement and misinformed 27 him about the amount of time he was exposing himself to when he signed the plea 28 1 agreement. In a declaration submitted by the United States in its response, defense counsel 2 states she never promised Petitioner any type of sentence, that the sentence would be 3 determined by this Court, and that she thoroughly reviewed the plea agreement with 4 Petitioner before he signed it. Doc. No. 31-1 at 1-2. At the plea hearing, the magistrate 5 judge determined Petitioner made his guilty plea knowingly and voluntarily, which was 6 not the result of force, threats, or promises other than those in the plea agreement. Doc. 7 No. 18 at 4. The magistrate judge further determined that Petitioner understood the plea 8 agreement would waive his right to collaterally attack his conviction and sentence. Id. at 9 3. Additionally, the plea agreement, which Petitioner signed and initialed, clearly reads 10 that Petitioner had a full opportunity to discuss the facts and circumstances of his case, 11 understood the consequences of his plea, was not made any promises other than those in 12 the plea agreement, and was not threatened to induce the guilty plea. Doc No. 17 at 5. 13 Petitioner’s contentions are without merit. Petitioner presents no facts indicating he 14 was coerced into signing the plea agreement by any of the parties or that his counsel 15 misinformed him about the time he was exposing himself to. The plea agreement also 16 clearly states that his sentencing was within the sole discretion of the Court, not the United 17 States nor his defense counsel. Doc. No. 17 at 7. For these reasons, Petitioner has failed 18 to show that his counsel’s performance was deficient. 19 Petitioner further fails to demonstrate prejudice. As such, Petitioner fails to 20 demonstrate his guilty plea was not made knowingly and voluntarily, and his waiver is 21 enforceable and forecloses his collateral attack. 22 III. Certificate of Appealability 23 Pursuant to Rule 11 of the Rules following 28 U.S.C. § 2254, a district court “must 24 issue or deny a certificate of appealability when it enters a final order adverse to the 25

26 1 Petitioner claims he “sign[ed] for a year and a day” and received 37 months at sentencing. Doc No. 27 27 at 13-14. However, Petitioner was sentenced to 30 months followed by three years of supervised release. See Doc. No. 30. Petitioner does not make it clear whether his counsel specifically told him he 28 1 || applicant” in Section 2255 cases such as this. A habeas petitioner may not appeal the denial 2 ||of a Section 2255 habeas petition unless he obtains a certificate of appealability from a 3 || district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar, 116 4 ||F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue 5 ||certificates of appealability under AEDPA). A certificate of appealability is authorized □□□ 6 applicant has made a substantial showing of the denial of a constitutional right.” 28 7 U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the 8 ||issues are debatable among jurists of reason, (2) that a court could resolve the issues in a 9 different manner, or (3) that the questions are adequate to deserve encouragement to 10 || proceed further. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000) (citing 11 ||Slack v. McDaniel, 529 U.S. 473 (2000); Barefoot v. Estelle, 463 U.S. 880 (1983)). 12 Based on this Court’s review of the record, this Court finds no issues are debatable 13 |}among jurists of reason and no issues could be resolved in a different manner. This Court 14 || further finds that no questions are adequate to deserve encouragement to proceed further. 15 || Therefore, Petitioner is not entitled to a certificate of appealability. 16 CONCLUSION AND ORDER 17 Based on the foregoing, IT IS HEREBY ORDERED: 18 1. Petitioner’s motion to vacate, set aside or correct his sentence is DENIED; 19 || and 20 2. Petitioner is DENIED a certificate of appealability.

22 || Dated: November 18, 2019 HON vied fo Ae ae 23 UNITF D STATES DISTRICT JUDGE 24 /

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