United States District Court, D. Hawaii
ORDER DENYING SECOND PETITION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Derrick K. Watson United States District Judge
Petitioner Armando Flores Vasquez, proceeding pro se, again seeks to vacate his sentence for conspiracy to distribute and to possess with the intent to distribute 53 pounds of methamphetamine in violation of Title 21, United States Code, Sections 841 and 846. Vasquez filed the instant motion pursuant to 28 U.S.C. § 2255 ("Second Section 2255 Motion"), alleging ineffective assistance of counsel, notwithstanding the Court's denial of his prior Section 2255 motion. Because Vasquez's Second Section 2255 Motion is "second or successive" for purposes of 28 U.S.C. § 2255(h), and he has not obtained the necessary certification from the Ninth Circuit Court of Appeals to proceed under either Section 2255(h)(1) or (2), the Court DENIES his motion without prejudice, and also DENIES a Certificate of Appealability. Vasquez's motion to proceed without prepayment of fees is denied as moot.
I. Plea and Sentencing
Vasquez was one of three defendants charged with conspiracy to distribute and to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(1)(A). Dkt. No. 1. On December 19, 2013, Vasquez entered a plea of guilty to the charged conspiracy. In his Plea Agreement, Vasquez expressly waived his right to appeal or otherwise challenge his sentence, except under limited circumstances. See 2/10/2016 Order at 2 (Dkt. No. 146).
During the December 19, 2013 plea proceeding, Vasquez was represented by counsel and had a Spanish interpreter available. Dkt. No. 140-2. Vasquez acknowledged during the plea colloquy that he understood and had spoken with his attorney about the Plea Agreement. Vasquez further acknowledged that the Plea Agreement reflected his entire agreement with the Government and that the Government had not made any promises to him that were not contained in the agreement. As to his sentence, Vasquez acknowledged that the maximum term of imprisonment was life and that there was a mandatory minimum term often years. The prosecutor made clear that there was no provision in the agreement for cooperation. See 2/10/2016 Order at 2-4.
On November 12, 2014, the Court sentenced Vasquez to a term of imprisonment of 109 months. Under the applicable guidelines, and after acceptance of responsibility, Vasquez's Total Offense Level was 31. Vasquez fell into criminal history category II, and the corresponding term of imprisonment under the guidelines was 121 to 151 months. Because the Court granted the Government's motion for a downward departure based upon Vasquez's substantial assistance and Section 5K1.1 of the guidelines, the Court departed below the statutory minimum and accepted the Government's recommendation of a 109-month term of imprisonment. Dkt. No. 102. Judgment was entered on November 14, 2014, and Vasquez did not appeal. See Dkt. No. 105; see also 2/10/2016 Order at 5.
II. First Section 2255 Motion
In his First Section 2255 Motion, filed on November 10, 2015, Vasquez asserted three grounds for relief: (1) that his guideline range was incorrectly calculated; (2) that he was promised, but did not receive, leniency; and (3) that he was induced by the Government (via the undercover investigator) to commit the drug offense for which he was charged. Dkt. No. 136. After full briefing, the Court denied his First Section 2255 Motion, finding that Vasquez's collateral attack was barred by the terms of his Plea Agreement's waiver language, and that Vasquez waived his rights knowingly and voluntarily.
The February 10, 2016 Order noted that, during the December 19, 2013 plea colloquy, at the Court's request, the Government specifically described the terms of the Plea Agreement, Vasquez acknowledged that he had read all of the terms of the Plea Agreement, was "confident" that he understood them, and had the opportunity to discuss those terms with his attorney. Defense counsel also confirmed that Vasquez understood the terms of the Plea Agreement, all of which contributed to the Court's finding that Vasquez was entering a "knowing and voluntary plea of guilty to the single count in the indictment without coercion, force, or threat." 2/10/2016 Order at 7-9. The Court then touched on the merits of Vasquez's claims, finding them likewise to be without merit. 2/10/2016 Order at 9 n.2. The Court denied Vasquez's First Section 2255 Motion and denied a certificate of appealability. 2/10/2016 Order at 9-10.
III. Second Section 2255 Motion
Vasquez filed his Second Section 2255 Motion on March 14, 2016, raising the following grounds: (1) "ineffective counsel"; (2) "defense attorney deceived defendant by promising leniency"; (3) "sentencing disparity"; and (4) "[d]efense attorney deceived defendant." Second Section 2255 Motion at 4-8. Vasquez, however, did not seek certification from the Ninth Circuit Court of Appeals to proceed under either Section 2255(h)(1) or (2), before filing the instant motion.
I. The Court Lacks Authority to Consider the Second Section 2255 ...