Opinion
No. CR 00-40242 CW.
October 12, 2005
ORDER DENYING RESPONDENT'S MOTION TO DISMISS § 2255 MOTION AND GRANTING MOVANT'S MOTION FOR RECONSIDERATION
Respondent United States of America moves the Court to dismiss Movant Juanita Navarro's section 2255 motion. Ms. Navarro opposes the motion. The matter was taken under submission on the papers.
Ms. Navarro moves the Court to reconsider its June 13, 2005 order ruling that she had waived the attorney-client privilege with respect to advice that her attorney may have given her about the deportation consequences of her November 24, 2003 guilty plea. The United States opposes the motion. This matter was also taken under submission on the papers.
Having considered the parties' papers and the evidence cited therein, the Court denies the government's motion to dismiss Ms. Navarro's section 2255 motion and grants Ms. Navarro's motion for reconsideration.
BACKGROUND
On November 24, 2003, Ms. Navarro signed an agreement to plead guilty to one count of conspiracy to manufacture methamphetamine. The plea agreement listed deportation under the sub-heading "Other possible consequences of guilty plea," and stated as follows:
If the defendant requests, and in the government's judgment the request is reasonable, the government will recommend to the Department of Justice that the defendant and, if appropriate, other individuals not be deported. The government has the authority only to recommend the foregoing and the final decision whether to grant such relief rests with the Department of Justice, which will make its decision in accordance with applicable law.
By signing the agreement, Ms. Navarro promised, among other things, the following:
I agree not to file any collateral attack on my conviction, including a petition under 28 U.S.C. § 2255, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated.
Ms. Navarro appeared in Court to enter her guilty plea. At the plea hearing, the Court asked Ms. Navarro, whether she understood that by pleading guilty she was giving up her "right to appeal on your guilt or innocence, the right to appeal your sentence, and a right to file a later collateral attack against your sentence." Ms. Navarro answered, "Yes." The Court told Ms. Navarro that the "maximum penalty on this offense is life in custody, a four million dollar fine, five years of supervised release and a one hundred dollar special assessment. Also possible are mandatory and discretionary denial of federal benefits and deportation as well. There's a mandatory minimum prison sentence of ten years." When asked by the Court, "Do you understand all that," she answered, "Yes."
Based upon her plea, Ms. Navarro was subsequently convicted of conspiracy to manufacture methamphetamine and, on March 29, 2004, she was sentenced to twenty-four months in federal prison. Ms. Navarro is subject to an immigration hold, pursuant to which she will be placed in removal proceedings by the Department of Homeland Security upon completion of her prison sentence. The offense to which Ms. Navarro plead guilty constitutes an aggravated felony under Title 8 U.S.C. section 1101(a), which Ms. Navarro contends mandates her deportation. Ms. Navarro's status as an aggravated felon does mean that she is not eligible for discretionary cancellation of removal. See 8 U.S.C. § 1229b(a)(3).
On April 20, 2005, Ms. Navarro filed, pursuant to Title 28 U.S.C. section 2255, a motion to vacate her conviction. In that motion, Ms. Navarro argues, among other things, that the guilty plea upon which her conviction was based was not knowing and voluntary because the language in the plea agreement and that used by the Court during the plea hearing misled her to believe that deportation was a possible, but not mandatory, consequence of her plea.
On May 17, 2005, the United States filed a motion for an order finding that Ms. Navarro had, in moving to vacate her sentence, waived the attorney-client privilege with respect to advice her attorney may have given her about the deportation consequences of her guilty plea. Ms. Navarro opposed the motion. On June 13, 2005, the Court granted the government's motion, ruling as follows:
Movant has filed a declaration stating that prior to her plea of guilty she did not know that conviction of the offense to which she plead guilty would result in mandatory deportation. The United States is entitled to test the credibility of this claim by cross-examining Movant and by inquiring into the likely sources of Movant's possible knowledge: her attorneys. The United States may seek this information by requesting declarations or by taking depositions by written questions.
On June 21, 2005, Ms. Navarro filed her motion for reconsideration. On July 15, 2005, the government filed its motion to dismiss Ms. Navarro's section 2255 motion.
LEGAL STANDARD
I. Title 28 U.S.C. section 2255
A prisoner, in custody under sentence of a federal court, making a collateral attack against the validity of her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. section 2255 in the court which imposed the sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under 28 U.S.C. section 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). If the court finds that relief is warranted under section 2255, it must "`vacate and set the judgment aside'" and then do one of four things: "`discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'" See id. (quoting 28 U.S.C. § 2255).
In reviewing a section 2255 motion, a federal court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The motion must provide specific factual allegations which, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
II. Reconsideration
Under Federal Rule of Civil Procedure 59(e) and Civil Local Rule 7-9, the granting of a motion for reconsideration is a matter of discretion for a district court and is appropriate if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or the initial decision was manifestly unjust, or (3) there is an intervening change in controlling law. See School District No. 1J, Multnomah County v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
DISCUSSION
I. Waiver
The United States argues that Ms. Navarro cannot bring this section 2255 motion because in the plea agreement she expressly waived her right to attack her conviction or sentence collaterally, except for an ineffective assistance of counsel claim. Ms. Navarro, however, contends that section 2255 claims cannot be waived and that the waiver cases cited by the government pertain to the waiver of appellate rights — not the waiver of section 2255 rights. But as correctly noted by the Government, section 2255 waivers are enforceable except in certain limited circumstances. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (explaining that the right to move for relief under 28 U.S.C. section 2255, like the right to bring a direct appeal of a criminal sentence, is statutory, and a knowing and voluntary waiver of a statutory right is enforceable).
Thus, the question, which Ms. Navarro does not address, is whether this is one of the limited circumstances where a section 2255 waiver is unenforceable. Ms. Navarro only incorrectly argues that there is no authority that the right to bring a motion under section 2255 can be waived. The government asserts that this is not one of those limited circumstances. Recently, after Ms. Navarro filed her opposition, the Ninth Circuit held that a plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. section 2254 is unenforceable with respect to an ineffective assistance of counsel claim. Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); see also United States v. Jeronimo, 398 F.3d 1149, 1153 n. 2 (9th Cir. 2005) (listing well-established exceptions to appeal waivers, including when defendant's guilty plea was not taken in compliance with Rule 11 and when the sentence imposed violates the law). Ms. Navarro, however, does not bring an ineffective assistance of counsel claim, which the plea agreement permits her to do. Instead, her section 2255 motion is based on her assertion that the guilty plea upon which her conviction was based was not knowing and voluntary because the language in the plea agreement and used by the Court during the plea hearing misled her to believe that deportation was a possible, but not mandatory, consequence of her plea.
The Ninth Circuit has not determined whether a plea agreement that waives the right to file a federal habeas petition with respect to whether the agreement was entered knowingly and voluntarily is enforceable. In Jeronimo, the court noted that a defendant can waive the statutory right to file a section 2255 petition challenging the length of the sentence. 398 F.3d at 1156 n. 4. But the court stated that it would not decide whether the language in the plea agreement regarding waiving the right to file a section 2255 petition challenging the length of the sentence "would necessarily encompass a claim challenging the knowing and voluntary nature of the plea agreement." Id. And inAbarca, the court stated, "While we do not hold that Abarca's waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver," Abarca's challenge to his degree of culpability was clearly foreclosed by the waiver. 985 F.2d at 1014.
Because Ms. Navarro fails to address the issue and there is no cited authority holding otherwise, the Court will assume that a defendant can waive the right to bring this section 2255 challenge and address Ms. Navarro's next argument: that Ms. Navarro did not waive her right to challenge her plea because a waiver cannot be considered knowing and voluntary if the plea agreement, of which it is a part, was not knowing and voluntary. To support her argument, Ms. Navarro quotes language found in several Ninth Circuit cases, including those cited by the government:
[W]aivers of appeal must stand or fall with the agreement of which they are a part. If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal.See, e.g., Jeronimo, 398 F.3d at 1154 (quoting United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999)). Ms. Navarro does not contend that the agreement was not taken in compliance with Rule 11. Rather, she notes that the issue she raises by her motion is whether the agreement was entered knowing and voluntary. She argues that the government's motion must be denied because any waiver determination "collapses into the inquiry on the merits," i.e., whether the plea agreement itself is voluntary and enforceable.
The government responds that this argument would render waivers in plea agreements immaterial and unenforceable. The government agrees that a waiver of the right to appeal is knowing and voluntary where the plea agreement as a whole was knowing and voluntary made. See id. at 1154. But the government asserts that, in Jeronimo, to determine whether the plea agreement was knowingly and voluntarily made the court focused on the district court's extensive Rule 11 colloquy with the defendant. And, here, the government notes, there is no dispute that the Court engaged in an extensive Rule 11 colloquy in which Ms. Navarro stated on the record that she understood all provisions of the agreement and the rights that she was waiving. However, after discussing the court's extensive Rule 11 colloquy, the Jeronimo court went on to discuss the merits of the defendant's ineffective assistance of counsel claim — the grounds for the defendant's section 2255 motion. "In light of the scope of the record," which the court noted contained no evidence from the defendant's lawyer, the court concluded that it lacked jurisdiction over the defendant's appeal, "because the appeal waiver in Jeronimo's plea agreement is unambiguous and the record as it is currently constituted fails to demonstrate that the agreement was not knowingly and voluntarily made." Id. at 1156-57.
In addition, when changing her plea, Ms. Navarro told the Court under oath that she was not under the influence of any alcohol, drugs or medicine. The plea agreement contained a section titled, "The Defendant's Affirmations" which provided that (1) Ms. Navarro had adequate time to discuss the case, the evidence, and the plea agreement with her attorney who provided her with all the legal advice she requested; (2) while considering the plea agreement and at the time she signed it she was not under the influence of alcohol, drugs, and medicine; and (3) her decision to enter a guilty plea was made knowing the benefits and possible detriments of proceeding to trial.
The plain language of Ms. Navarro's waiver of her right to pursue a collateral attack on her conviction or sentence pursuant to section 2255, for any claim other than a claim for ineffective assistance of counsel, is clear and unambiguous. But to determine whether her waiver of the right to bring a section 2255 motion is knowing and voluntary, the court must first determine whether the plea agreement as a whole was knowingly and voluntarily made.See id. at 1154. The Court denies the government's motion to dismiss based on its argument that Ms. Navarro waived her right to bring this motion, which cannot be determined at this juncture.
II. Advice of Counsel
The government also argues that Ms. Navarro's motion must be dismissed because her guilty plea was entered upon the advice of counsel. According the government, Ninth Circuit case law provides that "a defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). Here, Ms. Navarro asserts that her plea was not voluntary and intelligent because she was misled, not by her attorney, but by the government and Court as to whether deportation was possible or mandatory.
The cases cited by the government involve ineffective assistance of counsel claims; and the language quoted by the government sets forth the legal standard to evaluate a claim based on ineffective assistance of counsel. In Jeronimo, the defendant argued that his plea was not voluntary and intelligent due to ineffective counsel; thus that case is not, as the government argues, on all fours with this case, in which Ms. Navarro argues that her plea was not voluntary and intelligent based on other grounds. And the other case relied on by the government, Tollet v. Henderson, 411 U.S. 258, 266 (1973), does not hold that a defendant who had counsel must plead ineffective assistance of counsel if the court is to determine whether her plea was knowing and voluntary; that was not at issue inTollett. Instead, in Tollett, the Court decided whether a State prisoner, pleading guilty with the advice of counsel, may obtain release through federal habeas corpus by proving that the indictment to which he plead guilty twenty-five years before was returned by an unconstitutionally selected grand jury.
The government does not cite any case that holds that a defendant with counsel can challenge the voluntariness of a guilty plea solely based on ineffective assistance of counsel. Nor does the government address the case cited by Ms. Navarro in which the Supreme Court rejected the idea that a defendant with a lawyer cannot challenge the validity of her guilty plea except on the basis of ineffective assistance of counsel. In Waley v. Johnston, 316 U.S. 101 (1942), the Court explained that because the "petitioner when he pleaded guilty had been represented by counsel," a majority of the appellate court reasoned that the petitioner "could not by habeas corpus attack his sentence on the ground that his plea was coerced." 316 U.S. at 103-4. The Court vacated the appellate court's ruling and rejected that reasoning. The Court determined that if the petitioner's allegations, which it noted "may tax credulity," that he was coerced into pleading guilty were true, then his constitutional rights were infringed.Id. at 965-66. The case was remanded for a hearing.
The Court denies the government's motion to dismiss based on its argument that Ms. Navarro's section 2255 motion must be denied because she had counsel when she entered her guilty plea.
III. Reconsideration of the Court's order regarding attorney-client privilege.
Because the Court did not grant the government's motion to dismiss, the Court will now discuss Ms. Navarro's motion for reconsideration of its June 22, 2005 order. The parties agree that the Court must apply the following three-pronged test in considering whether Ms. Navarro, in filing the motion to vacate her conviction, waived the attorney-client privilege: (1) whether Ms. Navarro is asserting the privilege as a result of some affirmative act, such as filing suit, (2) whether, through this affirmative act, Ms. Navarro has put the privileged information at issue, and (3) whether sustaining the privilege would deny the United States access to information vital to its defense. United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999).
Ms. Navarro does not dispute that the first prong of theAmlani test has been satisfied here — her section 2255 motion was an affirmative act that resulted in her now asserting the attorney-client privilege. Ms. Navarro does, however, dispute that the second and third prongs of the test have been satisfied.
Addressing the second prong of the Amlani test, Ms. Navarro argues that her section 2255 motion does not place her otherwise confidential communications with her attorney at issue. Ms. Navarro notes that her section 2255 motion nowhere alleges that she was misled by her attorney, nor does it rely upon what her attorney said or failed to say with respect to the consequences of her guilty plea. Ms. Navarro argues that her section 2255 motion is based solely upon her allegations that she was misled by the government, through the language in the plea agreement, and by the Court's language at the plea hearing. Apparently, Ms. Navarro's position is that she should prevail irrespective of whether her attorneys advised her of the actual state of the law.
Ms. Navarro also contends, with respect to the third prong of the Amlani test, that maintaining the attorney-client privilege would not deny the United States access to information vital to its defense of her section 2255 motion. That is true if, as described above, Ms. Navarro's section 2255 motion relies solely upon the government's and the Court's statements in the plea agreement and plea hearing respectively, and not upon a claim that she actually did not know the true state of the law. If this is the theory on which Ms. Navarro wishes to rely, she and her former attorneys will not be required to disclose their communications. However, she should be aware that this may require the Court to assume that her counsel did inform her of the actual consequences of her guilty plea and that the offense to which she plead guilty was an aggravated felony, precluding discretionary cancellation of removal and requiring deportation. In that case, Ms. Navarro would prevail only if her subjective state of mind at the time she entered the plea were irrelevant, and the actions of which she complains would entitle her to relief even if her attorney informed her of the actual consequences of her guilty plea.
For the foregoing reasons, the Court grants Ms. Navarro's motion for reconsideration of the June 13, 2005 order ruling that her section 2255 motion waives the attorney-client privilege with respect to the advice that her counsel gave her about the deportation consequences of her guilty plea. However, if Ms. Navarro does wish to persuade the Court that she actually did not know the true consequences of her guilty plea, she must waive the attorney-client privilege and allow that claim to be tested.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss Ms. Navarro's section 2255 motion (Docket No. 616) is DENIED. Ms. Navarro's motion for reconsideration of the Court's June 13, 2005 order (Docket No. 609) is GRANTED. The United States shall file its answer to Ms. Navarro's section 2255 motion within thirty days of the issuance of this Order. If Ms. Navarro wishes to respond to the answer, she shall file a traverse within thirty days of her receipt of the answer.
IT IS SO ORDERED.