United States District Court, E.D. Washington
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
O. RICE, Chief United States District Judge.
THE COURT are Defendant's Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. 2255 (ECF No. 60),
Application to Proceed In Forma Pauperis (ECF No. 61), and
Motion to Appoint Counsel (ECF No. 62). Defendant is
proceeding pro se. The Court has reviewed the record
and files herein, and is fully informed. For the reasons
discussed below, the Court denies Defendant's Motions.
September 6, 2017, Mauricio Aguilar-Roblero appeared before
the Court and entered a plea of guilty to Count 1 of the
Indictment filed on April 4, 2017, charging him with
Possession with the Intent to Distribute 500 Grams or more of
Methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(viii). ECF Nos. 34, 35, 36. On December 12,
2017, Mr. Aguilar-Roblero was sentenced to 135 months
incarceration followed by a 5-year term of supervised
release. ECF No. 45.
Defendant waived “his right to appeal the conviction
and sentence if the Court sentences the Defendant to a term
of incarceration of not more than 135 months; and a term of
supervised release of not more than five (5) years”
(ECF No. 35 at ¶ 16), an appeal was filed on his behalf.
ECF No. 48. Appellate counsel was appointed to represent Mr.
Aguilar-Roblero on appeal. ECF No. 56. The Ninth Circuit
considered his case and on February 21, 2019 dismissed his
appeal, ruling as follows:
Mauricio Aguilar-Roblero appeals from the district
court's judgment and challenges his guilty-plea
conviction and 135-month sentence for possession with intent
to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(viii). Pursuant to Anders
v. California, 386 U.S. 738 (1967),
Aguilar-Roblero's counsel has filed a brief stating that
there are no grounds for relief, along with a motion to
withdraw as counsel of record. Aguilar-Roblero has filed a
pro se supplemental brief. No answering brief has been filed.
Aguilar-Roblero waived his right to appeal his conviction and
sentence. Our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no
arguable issue as to the validity of the waiver. See
United States v. Watson, 582 F.3d 974, 986-88 (9th Cir.
2009). We accordingly dismiss the appeal. See Id. at
Counsel's motion to withdraw is GRANTED. We treat
Aguilar-Roblero's pro se submissions, Docket Entry Nos.
14 and 21, as motions for appointment of new counsel and DENY
ECF No. 58.
August 12, 2019, Defendant filed the instant motions.
Motion to Vacate, Set Aside or Correct Sentence
Court first considers Defendant's motion pursuant to Rule
4 of the Rules Governing Section 2255 Proceedings. Rule 4(b)
provides that the Court “must promptly examine [the
motion]. If it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion . . .”
issues raised do not require an evidentiary hearing.
See Rule 8, Rules- Section 2255 Proceedings. The
transcripts, records and materials filed in this proceeding
adequately document the issues for resolution.
Defendant is plainly not entitled to relief. Defendant raises
a number of issues, which will be addressed in the order
Plea Not Knowing, Intelligent, or Voluntary
contends his “guilty plea was not knowingly,
intelligently, or voluntarily entered” and had he
“been properly advised, he would have pled not guilty
and insisted on going to trial.” ECF No. 60 at 5.
Defendant does not elucidate his contentions any further.
transcript of the change of plea hearing demonstrates
otherwise. ECF No. 57. First, Defendant was placed under oath
to tell the truth during the hearing. Id. at 3-4.
Defendant was advised of the charge, the elements of the
offense, the penalties associated with the offense, the right
to a jury trial and all its attendant rights. Defendant
affirmed that no one promised him anything other than the
promises in the plea agreement and that no one threatened him
to get him to plead guilty. Id. at 5-6. Defendant
represented that it was his decision to plead guilty.
Id. at 6.
has not shown that his plea was not knowing, intelligent and
voluntary and the full transcript conclusively ...