1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISRAEL NAVA-ARELLANO, Case No.: 10-cr-3094-L

12 Petitioner,

ORDER:

13 (1) DENYING MOTION TO

VACATE, SET ASIDE, OR

14

CORRECT SENTENCE PURSUANT

15 v. TO 28 U.S.C. § 2255 [ECF NO. 15];

16 (2) DENYING REQUEST FOR 17 UNITED STATES OF AMERICA, COUNSEL ECF NO 60] and Respondent. 18 (3) DENYING CERTIFICATE OF 19 APPEALABILITY.

20 Petitioner, Israel Nava-Arellano (“Petitioner” or “Nava-Arellano”) filed a motion 21 to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion” or 22 “Petition”). The government filed a Response in Opposition (“Opposition” or “Oppo”). 23 The Court has reviewed the record, the submissions of the parties, and the supporting 24 exhibits. For the reasons set forth below, the Court DENIES Petitioner’s Motion. 25 26 27 28 1 I. FACTUAL BACKGROUND 2 Petitioner was brought to the United States by his parents in 1985, and he was 3 granted admission from 1991 through 1998 under Family Unity Benefits. His parents are 4 both naturalized citizens. His five daughters are United States citizens, as is his wife. On 5 January 27, 1999, Petitioner was convicted of possession of a controlled substance in 6 violation of California Health and Safety code section 11377 in the California Superior 7 Court, County of San Diego. On March 1, 1999, Petitioner was ordered removed from the 8 United States. On May 30, 2010, Nava-Arellano, an alien who had been previously 9 removed from the United States, was found in the United States without being given 10 express consent for his readmission. 11 II. PROCEDURAL BACKGROUND 12 On August 4, 2010, Petitioner was charged by Indictment with being a deported 13 alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b). On November 14 8, 2010, Petitioner filed a Motion to Dismiss pursuant to § 1326(d) alleging the removal 15 upon which the 1326 charges relied was invalid because Nava-Arellano had not executed 16 a knowing and voluntary waiver of appeal prior to his removal in March 1999. The 17 government did not oppose the motion, and on December 20, 2010, a Superceding 18 Information was filed alleging two counts of illegal entry into the United States in 19 violation of 8 U.S.C. § 1325, one misdemeanor and one felony, to which Petitioner pled 20 guilty. [ECF NO. 21, 22.] On December 21, 2010, this Court sentenced Petitioner to six 21 months in custody on each count to run concurrently with a 1-year term of supervised 22 release to follow. (Judgment [ECF NO. 25.] Petitioner was removed from the United 23 States following his custodial sentence. 24 On April 25, 2011, while on supervised release, Petitioner was apprehended in the 25 United States, and a Motion to Revoke Supervised Release was filed. [ECF NO. 26.] On 26 June 12, 2012, Petitioner’s Supervised Release was revoked, and he was sentenced to 27 eight months in custody, with no supervised release to follow. (Judgment [ECF NO. 28 52.]) 1 On January 4, 2019, Petitioner filed the present motion to vacate, set aside, or 2 correct sentence pursuant to 28 U.S.C. § 2255. The government filed a response in 3 opposition on February 20, 2020. Petitioner filed a Motion for Appointment of Counsel 4 on March 5, 2020. For the reasons set forth below, the Court denies Petitioner’s Motion. 5 III. DISCUSSION 6 Petitioner raises fifteen claims including ineffective assistance of counsel, actual 7 innocence, prosecutorial misconduct, and unlawful arrest. The Government argues that 8 the Motion must be dismissed because it is untimely, Petitioner waived his right to 9 collaterally challenge the conviction in his plea agreement, the claims are procedurally 10 defaulted, and Petitioner has failed to satisfy his burden to plead facts to establish his 11 ineffective assistance of counsel claims. 12 A. Statute of Limitations and Collateral Attack Waiver 13 1. Timeliness 14 A prisoner in custody may move the court that imposed his sentence to vacate, set 15 aside, or correct the judgment under section 2255 on the ground that: 16 The sentence was imposed in violation of the Constitution or laws of the 17 United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by 18 law, or is otherwise subject to collateral attack. 19 28 U.S.C. § 2255(a). 20 A 1-year period of limitation shall apply to a motion under this section. The 21 limitation period shall run from the latest of-- 22 (1) the date on which the judgment of conviction becomes final; 23 (2) the date on which the impediment to making a motion created by 24 governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by 25 such governmental action; 26 (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme 27 Court and made retroactively applicable to cases on collateral review; or 28 (4) the date on which the facts supporting the claim or claims presented 1 could have been discovered through the exercise of due diligence.

2 28 U.S.C. §2255(f); United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). 3 Section 2255 provides that a hearing must be granted to determine the validity of a 4 petition brought under that section ‘[u]nless the motions and the files and records of the 5 case conclusively show that the prisoner is entitled to no relief.’” Blaylock, 20 F.3d at 6 1465. 7 Judgment was entered by this Court on December 20, 2010. The one-year statute 8 of limitations expired on December 20, 2011. However, Nava-Arellano filed the present 9 Motion on January 4, 2019, more than seven years after the expiration of the statute of 10 limitations. Petitioner has not asserted any exception applies to justify his delay in filing 11 the Motion. Accordingly, the Motion is time-barred and is DISMISSED on this ground. 12 2. Waiver 13 Even if Petitioner was able to demonstrate his delay in filing the Petition was 14 justified, it must be denied because he explicitly waived the right to appeal or collaterally 15 attack his conviction and sentence as part of his written plea agreement. (Plea Agreement 16 XI at 9). A knowing and voluntary waiver of a statutory right is enforceable. United 17 States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally 18 attack a sentence under 28 U.S.C. § 2255 is statutory in nature, and a defendant may 19 therefore waive the right to file a § 2255 petition. See, e.g., United States v. Abarca, 985 20 F.2d 1012, 1014 (9th Cir. 1993) (by entering plea agreement waiving right to appeal 21 sentencing issues, defendant relinquished his right to seek collateral relief from his 22 sentence on the ground of newly discovered exculpatory evidence). 23 In the plea agreement, Defendant initialed his assent that his plea was knowing 24 and voluntary, and signed acknowledging that he fully understood the agreement’s terms. 25 (Plea Agreement at 3). During the plea colloquy before this Court on December 20, 26 2010, Defendant specifically agreed that he understood the concept of collateral attack, 27 that he knew he had waived it, and that he had no questions about that waiver. 28 1 (Reporter’s Transcript Change of Plea Hearing at 12). The record clearly indicates that 2 Defendant knowingly and voluntarily entered into the Plea agreement and that the 3 requirements of Rule 11 were adhered to. Petitioner does not challenge the validity of the 4 waiver. Accordingly, the Court finds Defendant’s collateral attack waiver was knowing 5 and voluntary, and DENIES his motion. 6 B. Procedural Default 7 Petitioner’s various claims asserting Constitutional rights violations are also 8 procedurally barred because he did not raise them on direct appeal. 9 “The general rule in federal habeas cases is that a defendant who fails to raise a 10 claim on direct appeal is barred from raising the claim on collateral review.” Sanchez– 11 Llamas v. Oregon, 548 U.S. 331, 350–51, (2006); United States v. Ratigan, 351 F.3d 957, 12 962 (9th Cir.2003) (“A § 2255 movant procedurally defaults his claims by not raising 13 them on direct appeal and not showing cause and prejudice or actual innocence in 14 response to the default.”) “In procedural default cases, the cause standard requires the 15 petitioner to show that some objective factor external to the defense impeded counsel's 16 efforts to raise the claim [on direct appeal].” McCleskey v. Zant, 499 U.S. 467, 493 17 (1991). “If a petitioner succeeds in showing cause, the prejudice prong of the test requires 18 demonstrating ‘not merely that the errors at...trial created a possibility of prejudice, but 19 that they worked to his actual and substantial disadvantage, infecting his entire trial with 20 error of constitutional dimensions.’” United States v. Braswell, 501 F.3d 1147, 1150 (9th 21 Cir.2007) (emphasis in original). 22 Nava-Arellano did not raise any of his claims concerning due process violations, 23 double jeopardy, prosecutorial misconduct, unconstitutional search and seizure, and 24 insufficient evidence on direct review, nor has he shown any objective factor impeded his 25 ability to do so, therefore, his claims are DISMISSED as procedurally barred. 26 27 28 1 C. Ineffective Assistance of Trial Counsel 2 Although ineffective assistance of counsel claims can survive collateral attack 3 waivers, Petitioner’s claims would nonetheless fail even if they were timely filed and not 4 procedurally barred because he has not met his burden. 5 “[I]n the context of § 2255 challenges brought by federal prisoners, [collateral 6 attack] waivers cannot bar IAC claims associated with the negotiation of plea agreements. 7 Washington v Lampert, 422 F.3d 864, 870 (9th Cir. 2005). To establish ineffective 8 assistance of counsel, a petitioner must prove by a preponderance of the evidence that: (1) 9 the assistance provided by counsel fell below an objective standard of reasonableness; and 10 (2) there is a reasonable probability that, but for counsel’s errors, the result of the 11 proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 12 (1984). To satisfy the deficiency prong of the Strickland test, the Petitioner must show that 13 his counsel’s performance “fell below an objective standard of reasonableness” and was 14 not “within the range of competence demanded of attorneys in criminal cases.” Id. at 687 15 (quoting in part McMahan v. Richardson, 397 U.S. 759, 771 (1970). In considering this 16 issue, there is a “strong presumption that counsel’s conduct falls within a wide range of 17 professional assistance.” Strickland, 466 U.S. at 689. 18 Nava-Arellano argues that his attorney failed to adequately explain the charges to 19 him, failed to perform sufficient investigation, and pressured him into pleading guilty and 20 signing the waiver of indictment, however Petitioner’s claims do not assert any facts in 21 support of his conclusory allegations. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) 22 (noting “conclusory suggestions” do not state a valid claim of ineffective assistance of 23 counsel) Instead, he makes blanket assertions, and notably in claim two, repeatedly refers 24 to his counsel as “she” or “her” when in fact his attorney was a man named John Lanahan. 25 Petitioner has not met his burden to demonstrate that counsel’s representation was deficient 26 by a preponderance of the evidence, therefore, his claims are DENIED. A hearing is not 27 required because Petitioner has not made “specific factual allegations which, if true, would 28 entitle him to relief.” Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). 1 IV. REQUEST FOR COUNSEL 2 Petitioner requests appointment of counsel to represent him with the present 3 section 2255 Petition arguing that the complexity of his case warrants such 4 representation, notably his actual innocence, insufficient evidence for prosecution and 5 IAC claims. (Mot. 1 [ECF NO. 60.]) 6 As explained above, Petitioner’s claims are time-barred and impermissible due to 7 his collateral attack plea agreement waiver, and these issues cannot be remedied by 8 appointment of counsel. Therefore, the Court DENIES his request for appointment of 9 counsel. 10 V. CERTIFICATE OF APPEALABILITY 11 A certificate of appealability is authorized “only if the applicant has made a 12 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 13 meet this standard, Petitioner must show that “jurists of reason could disagree with the 14 district court’s resolution of his constitutional claims or that jurists could conclude the 15 issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 16 Cockrell, 537 U.S. 322, 327 (2003). Petitioner does not have to show “that he should 17 prevail on the merits. He has already failed in that endeavor.” Lambright v. Stewart, 18 220 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation omitted). 19 Having reviewed the matter, the Court finds that Petitioner has not made a 20 substantial showing that he was denied a constitutional right and the Court is not 21 persuaded that jurists could disagree with the Court’s resolution of his claims or that the 22 issues presented deserve encouragement to proceed further. Therefore, a certificate of 23 appealability is DENIED. 24 // 25 // 26 // 27 // 28 // 1 || VI. CONCLUSION 2 For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Vacate, Set 3 || Aside, or Correct Sentence under 28 U.S.C. §2255; DENIES a hearing on the matter; 4 || DENIES his Request for Appointment of Counsel, and DENIES a Certificate of 5 || Appealability. 6 7 || IT IS SO ORDERED 8 9 ||Dated: April 10, 2020 Y po 10 fe ow? 4 san Yip 11 H6nUY JamesforenzZH United States District Judge

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