United States v. Rodriguez, 2:11-cr-00097-KJM

United States of America, Plaintiff, v. Cosme Rodriguez, Defendant.

No. 2:11-cr-00097-KJM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 14, 2021

ORDER

Cosme Rodriguez pleaded guilty to conspiring to distribute methamphetamine in 2013. The court sentenced him in 2016, and he currently is serving a term of supervised release. He moves to vacate his sentence under 28 U.S.C. § 2255 based on ineffective assistance of counsel. The government moves to dismiss the petition as untimely and as barred by Mr. Rodriguez's agreement to waive his right to collaterally attack his sentence. For the reasons explained in this order, the motion to dismiss is granted in part, and the motion to vacate is denied.

I. BACKGROUND

Mr. Rodriguez was arrested in a DEA buy-bust operation. See Factual Basis at 1-2, Plea Agmt. Ex. A, ECF No. 75. He was participating in a conspiracy to sell five pounds of methamphetamine to a confidential informant. See id. He was unarmed. See Stmt. of Reasons, ECF No. 140. His role was essentially to act as a courier or escort. See id.; Factual Basis at 2. The deal was a single transaction, and he had done nothing like this before; he appeared to have been driven to join in the deal by financial distress. See Stmt. of Reasons, ECF No. 140. He was charged with two counts: possessing the drugs and participating in the conspiracy. Plea Agmt. at 1; Indictment, ECF No. 10. Each count carried a statutory ten-year minimum prison term and a five-year minimum term of supervised release. See 21 U.S.C. § 841(b)(1)(A)(viii); Plea Agmt. at 8. Mr. Rodriguez was originally represented by appointed counsel, but later retained a private attorney, D. Randall Ensminger, who represented him through sentencing, at times overcome by emotion. See ECF Nos. 24-26. Counsel at the Benevidez Law firm also consulted with Mr. Ensminger during sentencing about the immigration consequences of a guilty plea. See Opp'n at 3, ECF No. 171.

Mr. Rodriguez pleaded guilty to one of the two counts against him (the possession charge) in a written plea agreement. ECF No. 75. The agreement expressly waives Mr. Rodriguez's right "to bring a post-appeal attack on his conviction or his sentence." Id. at 11. "He specifically agree[d] not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence." Id.

The court discussed the plea and the agreement with Mr. Rodriguez. He agreed he was "fully satisfied with the advice, counsel and representation that Mr. Ensminger ha[d] given [him]," but he hesitated in giving that answer and admitted he was "kind of lost," even though he trusted Mr. Ensminger. Hr'g Tr. at 7, ECF No. 160. He also agreed he had decided to plead guilty voluntarily, but he felt he had "no choice." Id. at 7-8.

The court then asked the government to summarize the terms of the agreement. Id. at 9. Counsel explained that among other adverse consequences, the plea agreement embodied Mr. Rodriguez's recognition "that deportation is a distinct possibility, and even a likelihood, in this case" after he completed his term of imprisonment. Id. at 10. When the court asked if Mr. Rodriguez understood "that a plea of guilty can result in . . . denial of naturalization, exclusion from this county or deportation," he said that was "the first time" he had heard about "deportation." Id. at 13-14. After speaking briefly with Mr. Ensminger off the record, however, he understood he was "at risk" of being sent out of the country at the conclusion of his sentence. See id. at 14-15. The court also asked Mr. Rodriguez if he understood "that typically, without thekind of agreement [he was] presenting to the Court," he would "have the right to appeal" his sentence and "to file a motion, after sentencing, seeking to reduce [his] sentence or vacate it." Id. at 18. He did. He also understood he could not withdraw his guilty plea if later he was "not happy with the sentence." Id. at 18-19.

Later in the hearing, after the government explained the elements of the changed offenses, Mr. Rodriguez also seemed to question how the government could prove him guilty of joining a conspiracy. See id. at 22. The court went into recess to permit him to consult with Mr. Ensminger. See id. at 22-24. After the recess, despite what Mr. Ensminger described as "lingering concern" about the conspiracy charge, Mr. Rodriguez decided to move forward with a plea on the possession charge as he had agreed. See id. at 24-25.

Mr. Rodriguez was sentenced to one year and one day in custody and five years' supervised release. Sentencing Mins., ECF No. 135. As noted above, the statutory mandatory minimum sentence for Mr. Rodriguez's conviction was ten years; the reduction was possible under 28 U.S.C. § 3553(f), which permits lower sentences on the government's recommendation when a defendant has, among other things, "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f)(5); see also Plea Agmt. at 9. Judgment was entered. ECF No. 139.

Mr. Rodriguez moves to vacate or set aside his sentence under 28 U.S.C. § 2255. He argues Mr. Ensminger provided ineffective assistance during plea negotiations and sentencing and makes three claims. See Mot. Vacate at 5, ECF No. 146; Opp'n at 1-3, ECF No. 171. First, he claims Mr. Ensminger advised him inaccurately that if he pleaded guilty to a felony, avoiding removal from the United States would be "difficult" but "do-able." See Mot. Vacate at 5. An effective attorney, he argues, would have warned him instead that removal from the United States was a "virtual certainty." Id. Second, Mr. Rodriguez claims Mr. Ensminger wrongly emphasized the negative consequences of a motion to withdraw his guilty plea, such as delays, and neglected to explain "that the standard for withdrawing a guilty plea would be much higher and more difficult" if he waited to do so until after sentencing. Id. at 2. Third, he argues Mr. Ensmingerprovided ineffective assistance in failing to investigate, pursue or advise Mr. Rodriguez about the possibility of pleading guilty to a non-felony charge, such as misprision of felony, so as to avoid the "obstacles" of a felony conviction. Id. at 2-3. In sum, Mr. Rodriguez claims if he had known deportation was a "virtual certainty" and withdrawing his guilty plea would be "virtually impossible" after sentencing, he "would have insisted on going to trial." Rodriguez Decl. ¶ 2, ECF No. 172.

The government moves to dismiss these claims under the plea agreement's waiver provisions and argues the motion is untimely. Mot. Dismiss, ECF No. 161. Mr. Rodriguez opposes the government's motion. ECF No. 171. The government did not reply.

II. WAIVER

A defendant's waiver of the right to a collateral attack is enforceable if the waiver was knowing, voluntary and express, and if it encompasses the right to pursue an attack on the ground raised. See Davies v. Benov, 856 F.3d 1243, 1246 (9th Cir. 2017); United States v. Abarca, 985 F.2d 1012, 1013-14 (9th Cir. 1993). "Claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary, however, may not be waived." Davies, 856 F.3d at 1247 n.2 (citing Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005)); see also, e.g., United States v. Chan, 721 F. App'x 728 (9th Cir. 2018) (unpublished) (applying this exception to motion under § 2255).

The Ninth Circuit has not decided, however, whether a defendant can waive ineffective assistance claims that do not challenge the waiver or plea agreement itself. Cf. United States v. Martinez-Carranza, 693 F. App'x 672 (9th Cir. 2017) (unpublished) (declining to reach that question). Other circuits have considered the question. All have held that defendants can waive claims of ineffective assistance that do not affect the validity of that waiver or the plea. See, e.g., Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005); United States v. White, 307 F.3d 336, 341-44 (5th Cir. 2002); United States v. Cockerham, 237 F.3d 1179, 1181-83 (10th Cir. 2001); Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam). District courts in this circuit have held the same. See, e.g., Martinez-Carranza,No. 13-00107, 2015 WL 2159821, at *3 (E.D. Cal. May 7, 2015), aff'd on alternative grounds, 693 F. App'x 672 (9th Cir. 2017); Ceja v. United States, No. 08-0909, 2010 WL 4806904, at *3 (E.D. Cal. 2010); Pastoriza-Valerio v. United States, No. 06-1079, 2009 WL 69326, at *5 (S.D. Cal. Jan. 9, 2009). This court has also enforced a waiver of the right to collaterally attack a sentence based on ineffective assistance claims that did not pertain to the validity of the plea agreement. See United States v. Malauulu, No. 15- 00124, 2020 WL 3642611, at *3 (E.D. Cal. July 6, 2020).

The timing of the allegedly ineffective assistance often discloses whether the collateral attack or appeal implicates the validity of a plea agreement. For example, an attorney's error cannot have rendered a plea agreement involuntary if it occurred after the defendant had already signed the agreement and agreed to a waiver. This was the case in Djelevic, for example. The collateral attack concerned an attorney's alleged failure to seek enforcement of a plea agreement during sentencing, which of course occurred after the defendant signed the plea agreement and had thus waived his right to a collateral attack. See 161 F.3d at 106. The Second Circuit enforced the waiver, describing the defendant's motion as an "effort to dress up his claim as a violation of the Sixth Amendment." Id. at 107; see also, e.g., Williams, 396 F.3d at 1342; Ceja, 2010 WL 4806904 at *2.

This court has similarly separated waivable from...