Memorandum Opinion and Order
Before the Court is a motion by petitioner, Rigoberto Diaz ("Diaz"), pro se, pursuant to 28 U.S.C. § 2255 (doc. #69).*fn1 For reasons set forth below, the motion is DENIED.
On March 20, 2008, the Government filed an Information charging Diaz with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (doc. #56). The Information supplanted a previously filed Indictment, which was later dismissed upon motion of the Government at sentencing. Diaz entered into a binding plea agreement (doc. #58) with the Government and pleaded guilty on March 20, 2008. The Court subsequently accepted the binding plea agreement, and in accordance with its terms, sentenced Diaz to 97 months imprisonment on June 11, 2008 (doc. #64).
Diaz has now filed a petition under 28 U.S.C. § 2255. In his petition, Diaz asserts four grounds: 1) he received ineffective assistance of counsel; 2) his plea of guilty was unlawfully induced and not made voluntarily; 3) his conviction was obtained by a violation of the protection against double jeopardy; and 4) his conviction was obtained by the use of unlawfully obtained evidence.
Diaz waived his right to file post-conviction relief in his plea agreement. A plea agreement provision that contains a waiver of appeal and habeas corpus rights is enforceable provided such waiver is knowing and voluntary. United States v. DeRoo, 223 F.3d 919, 923 (8th Cir. 2000)(citing United States v. His Law, 85 F.3d 379 (8th Cir. 1996)). However, such waivers are not absolute. Id. For example, a defendant cannot waive his right to claim ineffective assistance of counsel relating to the negotiation of, or entry into, the plea agreement. Id. at 924. Because Diaz argues his counsel was ineffective, his motion has not been waived and the Court will consider the merits of his arguments.
"A defendant faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255." United States v. DeRoo, 223 F.3d 919, 925 (8th Cir. 2000). The petitioner must show, first, that his attorney's representation was objectively deficient and, second, the attorney's deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). See also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that the "prejudice" requirement in the context of a guilty plea focuses on whether the ineffectiveness of counsel affected the outcome of the plea process). The reasonableness of counsel's conduct is judged at the time of the challenged conduct. Id. at 690. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . ." Id.
Diaz provided an affidavit containing several statements supporting his motion. Specifically, Diaz contends his attorney did not explain plea agreement terms, and thus he did not understand the terms or the courtroom proceedings. Diaz also claims this resulted in an unlawfully induced plea of guilty because it was not made voluntarily. However, after careful review of the record in this case, including the plea agreement and the transcript of the change of plea hearing, it is clear that numerous statements made by Diaz under oath during the change of plea hearing directly contradict his current assertions. For example, the following colloquy occurred between Diaz and the Court at the change of plea hearing:
THE COURT: You tell me, what's going on right now? What do you think is going to happen in the next few minutes? Look at me. If you don't know it now, you never will.
THE DEFENDANT: Well, I don't know how to explain it in the same terms you guys can.
THE COURT: No. Explain it in your terms.
THE DEFENDANT: It's going to be a change of plea hearing.
THE COURT: Okay. Meaning you're going to change plea?
THE COURT: You're going to plead guilty?
THE DEFENDANT: To possession of firearms.
THE COURT: Okay. You're going to go to jail. Do you understand that?
THE COURT: How long? What's your feeling; What do you think I'm going ...