USA v. Lnu et al

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UNITED STATES DISTRICT COURT	8
FOR THE EASTERN DISTRICT OF CALIFORNIA	9
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Defendant Elias Hernandez-Valencia moves to vacate his conviction and sentence under	17
28 U.S.C. § 2255. For the reasons explained below, the court refers the matter to the assigned	18
magistrate judge for an evidentiary hearing on defendant’s first claim, denies claims two and	19
three as withdrawn and defers resolution of claim four.	20
I. 	BACKGROUND	21
On March 13, 2023, Hernandez-Valencia pleaded guilty to one charge in the indictment,	22
Indictment, ECF No. 52, charging a violation of 21 U.S.C. §§ 846, 841(a)(1), Conspiracy to	23
Distribute and Possess with Intent to Distribute Methamphetamine. See Mins. Change of Plea,	24
ECF No. 443; Plea Agreement at 3, ECF No. 446. He was represented at that time by attorney	25
Michael E. Hansen. See Plea Agreement at 9. As part of his plea agreement, Hernandez-	26
Valencia reviewed and signed a Factual Basis admitting to, among other things, delivering and	27
collecting drugs and operating a methamphetamine conversion laboratory in his home as part of a	28
United States of America,
Plaintiff,
v.
Elias Hernandez Valencia,
Defendant.
No. 2:18-cr-00164-KJM SCR
ORDER
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drug trafficking organization and that the “total amount of methamphetamine (actual) DEA	1
agents seized . . . was 8.02 kilograms.” See Plea Agreement, Ex. A (Factual Basis), ECF No. 446.	2
Hernandez-Valencia also agreed to a waiver of his appeal and collateral attack rights as follows:	3
The defendant understands that the law gives the defendant a right to	4
appeal his guilty plea, conviction, and sentence. 	The defendant	5
agrees as part of his plea/pleas, however, to give up the right to	6
appeal the guilty plea, conviction, and the sentence imposed in this	7
case. The defendant understands that this waiver includes, but is not	8
limited to, any and all constitutional and/or legal challenges to the	9
defendant’s conviction and guilty plea, including arguments that the	10
statutes to which defendant is pleading guilty are unconstitutional,	11
and any and all claims that the statement of facts attached to this	12
agreement is insufficient to support the defendant’s plea of guilty.	13
The defendant specifically gives up the right to appeal any order of	14
restitution the Court may impose.	15
Plea Agreement at 7. Also under the terms of the agreement, the government agreed to	16
recommend a sentence at the low end of the applicable guideline range as determined by the	17
court, recommend a two-to-three level reduction for acceptance of responsibility, and dismiss	18
with prejudice all other charges in the indictment. See id. at 4–5. The court accepted defendant’s	19
plea after a thorough colloquy in open court. See Mins. Change of Plea, ECF No. 164; Change of	20
Plea Hr’g Tr., ECF No. 527.	21
The Probation Office prepared a presentence investigation report (PSR) and used a base	22
offense level of thirty-eight relying on the Guideline provisions for 21 U.S.C. § 841. PSR ¶ 22	23
(under seal), ECF No. 481. Specifically, the PSR used the Guideline’s Drug Quantity table to	24
calculate the base offense, and consistent with the Factual Basis, relied on the Methamphetamine	25
(actual) calculation, rather than the Methamphetamine (mixture) calculation. Id. After providing	26
various adjustments consistent with the Guidelines, the PSR determined Hernandez-Valencia’s	27
total offense level was 42, and his Criminal History was II, which yielded a Sentencing Guideline	28
range of 360 months to life. Id. ¶¶ 32, 41; Sent’g Recommendation at 1 (under seal), ECF	29
No. 481-1. Consistent with its obligations in the plea agreement, the government recommended a	30
sentence of 360 months. Gov’t Sent’g Mem. at 1, ECF No. 487.	31
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At sentencing, Hernandez-Valencia, represented by Mr. Hansen, objected to the Probation	1
Office’s calculation of his base level offense level, arguing the two point enhancement for	2
Possession of a Firearm under U.S.S.G. § 2D1.1(b)(1), and the three point enhancement for his	3
role in the offense under U.S.S.G. § 3B1.1(b), should be stricken. Def.’s Objs., ECF No. 482.	4
The court rejected the objections and imposed a sentence at the bottom of the range of the	5
guidelines: 360 months in prison, $100 special assessment and 60 months of supervised release.	6
See J. & Commitment, ECF No. 494.	7
Less than a week later, Hernandez-Valencia filed a pro se motion to correct or vacate his	8
sentence under 28 U.S.C. § 2255. Mot., ECF No. 495. The court appointed an attorney to	9
represent him in making these claims, see Min. Order (Mar. 11, 2024), ECF No. 498, and his	10
appointed counsel has filed an amended motion, see generally Am. Mot., ECF No. 538.	11
Hernandez-Valencia raises four claims for relief, each asserting ineffective assistance of counsel:	12
1) 	Hernandez-Valencia’s entry into the plea agreement and guilty plea were not knowing	13
and voluntary because defense counsel advised him that the maximum prison sentence	14
he could expect was sixteen years;	15
2) 	Hernandez-Valencia’s entry into the plea agreement and guilty plea were not knowing	16
and voluntary because defense counsel advised him to agree to a factual basis that	17
appears to overstate the weight of the methamphetamine found in his home;	18
3) 	Defense counsel committed ineffective assistance of counsel at sentencing by failing	19
to object to the amount of Methamphetamine (Actual) the PSR states was found in	20
Hernandez-Valencia’s home; and	21
4) 	Defense counsel committed ineffective assistance of counsel at sentencing by failing	22
to argue that this court should use the Methamphetamine Mixture Guideline, rather	23
than the “Methamphetamine (Actual)” Guideline, in determining the base offense	24
level.	25
See generally id. The government opposes. See Opp’n, ECF No. 579. In his reply, Hernandez-	26
Valencia withdraws Claims Two and Three described above, and the court therefore does not	27
address those claims in this order. Reply, ECF No. 580.	28
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The court reviewed the motion and briefing and noted the absence of any request for an	1
evidentiary hearing. The court tentatively construed this absence as an indication the parties did	2
not believe such a hearing is necessary and permitted the parties each to submit a supplemental	3
brief addressing whether an evidentiary hearing is necessary or otherwise clarifying their	4
positions. ECF No. 582. The parties have filed their supplemental briefs. See Gov’t Suppl. Br.,	5
ECF No. 584; Def.’s Suppl. Br., ECF No. 587. The parties each confirmed they do not believe an	6
evidentiary hearing is necessary. The court, in its discretion and consistent with the Local Rules,	7
now takes the matter under submission without oral argument. E.D. Cal. L.R. 230(g).	8
II. 	CLAIM ONE	9
A. 	Waiver	10
As the government correctly argues, “[a] knowing and voluntary express waiver of the	11
right to collateral attack under § 2255 in a plea agreement is enforceable.” United States v. Ortiz,	12
No. 15-00124, 2019 WL 6727565, at *2 (E.D. Cal. Dec. 11, 2019) (collecting authority). At the	13
same time, “[w]aivers of appellate rights or the right to collateral attack are unenforceable,	14
however, with respect to ineffective assistance of counsel claims challenging the voluntariness of	15
the waiver itself.” Id. (citing Washington v. Lampert, 422 F.3d 864, 870 (9th Cir. 2005)). Claims	16
of ineffective assistance of counsel often implicate the validity of plea agreements secured by the	17
allegedly ineffective counsel, and those claims are not normally considered waived by plea	18
agreements. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (“We doubt that a plea	19
agreement could waive a claim of ineffective assistance of counsel based on counsel’s	20
erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea	21
bargain”); United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (general waiver does not	22
include claims of ineffective assistance brought under section 2255). Hernandez-Valencia’s first	23
claim argues that his attorney mischaracterized the likely outcome of the plea bargain. The	24
government does not argue that this claim is waived. See Opp’n at 25. This claim goes to the	25
core of Hernandez-Valencia’s knowledge and voluntariness and therefore cannot be waived by	26
the collateral-attack waiver in the agreement. See Pruitt, 32 F.3d at 433; Baramdyka, 95 F.3d	27
at 844.	28
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B. 	Merits Analysis & Evidentiary Hearing	1
Having determined Claim One is not waived by the plea agreement, the court proceeds to	2
an analysis of the claim on the merits. “The longstanding test for determining the validity of a	3
guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative	4
courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citations	5
omitted). To state a claim for relief based on ineffective assistance of counsel, Hernandez-	6
Valencia must show: (1) “counsel’s representation fell below an objective standard of	7
reasonableness” and (2) counsel’s deficient performance was prejudicial to the outcome.	8
Strickland v. Washington, 466 U.S. 668, 687–88, 691 (1984). Where a defendant challenges his	9
guilty plea based on ineffective assistance of counsel, “to satisfy the ‘prejudice’ requirement, the	10
defendant must show that there is a reasonable probability that, but for counsel’s errors, he would	11
not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. “[A]	12
plea’s validity may not be collaterally attacked merely because the defendant made what turned	13
out, in retrospect, to be a poor deal.” Bradshaw v. Stumpf, 545 U.S. 175, 186 (2005).	14
As relevant to Hernandez-Valencia’s first claim “[a] defendant can satisfy the ‘deficient	15
performance’ prong of the [Strickland] test by showing that counsel induced him to plead guilty	16
by presenting a ‘gross mischaracterization of the likely outcome.’” Chacon v. Wood, 36 F.3d	17
1459, 1464 (9th Cir. 1994) (quoting Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986)) (superseded	18
by statute on other grounds). Hernandez-Valencia must show the advice he received from Mr.	19
Hansen was “so incorrect and so insufficient that it undermined his ability to make an intelligent	20
decision about whether to accept the [plea] offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th	21
Cir. 2002) (alteration in original) (quoting United States v. Day, 969 F.2d 39, 43 (3rd Cir. 1992)).	22
Hernandez-Valencia avers Mr. Hansen gave ineffective assistance during the plea-	23
bargaining process when Hansen “told him the maximum sentence he was likely to get if he	24
entered the plea agreement was 16 years,” when his actual exposure under the plea agreement	25
was 360 months (30 years) to life, as reflected in the PSR. Hernandez-Valencia Decl. ¶ 2, Def.	26
Ex. A, ECF No. 538-1; Sent’g Recommendation at 1. Defense counsel cites to multiple cases in	27
which courts have found similar mischaracterizations of a defendant’s sentencing exposure to	28
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satisfy the first prong of Strickland. United States v. Manzo, 675 F.3d 1204, 1210–11 (9th Cir.
2012); United States v. Hanson, 339 F.3d 983, 990 (D.C. Cir. 2003); United States v. Thrift, No.
14-0308, 2024 WL 627002, at *11 (E.D. Cal. Feb. 14, 2024), findings and recommendations
adopted, 2024 WL 1655093 (E.D. Cal. Apr. 17, 2024).
The government disagrees and argues that the language of the plea agreement and the
court’s warnings during the plea colloquy indicate Hernandez-Valencia was clearly informed of
the potential consequences under the plea agreement. See Opp’n at 13–14. But in the Ninth
Circuit, the court’s and the government's warnings to a defendant during the plea hearing about
the possible length of the sentence cannot cure defense counsel’s error. See United States v.
Rodriguez-Vega, 797 F.3d 781, 787 (9th Cir. 2015) (warnings during plea colloquy are “simply
irrelevant to the question whether counsel’s performance fell below an objective standard of
reasonableness.” (emphasis in original)). The government also argues it is unlikely that Mr.
Hansen “would tell a client with such a high offense level, an alleged managerial role in a large
DTO, and a prior drug trafficking felony conviction, that he was unlikely to face any more than
16 years.” Opp’n at 16. In support of its opposition, the government submits a declaration from
Mr. Hansen, stating as follows:	16
When advising Mr. Hernandez-Valencia about whether to accept the	17
government’s offer in this case, I do not recall telling him he would	18
receive no more than 16 years imprisonment for his conviction. I do	19
not believe I would have said anything of the kind because a sentence	20
that low would have been unlikely in Mr. Hernandez-Valencia’s	21
case.	22
Hansen Decl. ¶ 6, ECF No. 579-1.	23
The conflicting evidence in this case raises the issue of whether an evidentiary hearing is	24
appropriate and necessary. “When a defendant files a motion under 28 U.S.C. § 2255, the district	25
court ‘shall’ grant an evidentiary hearing ‘[u]nless the motion and the files and records of the case	26
conclusively show that the prisoner is entitled to no relief.’” United States v. Rodriguez, 49 F.4th	27
1205, 1213 (9th Cir. 2022) (alteration in original) (quoting 28 U.S.C. § 2255 and citing United	28
States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004)). “A hearing must be granted unless the	29
movant’s allegations, when viewed against the record, do not state a claim for relief or are so	30
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palpably incredible or patently frivolous as to warrant summary dismissal.” Id. (quoting United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). That is, “a hearing is mandatory
whenever the record does not affirmatively manifest the factual or legal invalidity of the
petitioner’s claims.” Id. (quoting Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982)).
Here, because the record reflects the very different recollections of Hernandez-Valencia and
Mr. Hansen, it appears an evidentiary hearing is necessary on Claim One “unless the record
‘conclusively’ disprove[s]” prong two of the Strickland test. Id. at 1216 (quoting Howard,
381 F.3d at 877).
Under the second Strickland prong, the court analyzes whether “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694; see also Rodriguez-Vega, 797 F.3d at 788.
Hernandez-Valencia asserts “if he had known the plea agreement exposed him to a 360-month-to-
life sentence, he would not have entered the plea agreement and instead would have sought a
better plea agreement or gone to trial.” Am. Mot. at 14 (citing Hernandez-Valencia Decl. ¶ 4). In
addition to Hernandez-Valencia’s sworn statement in his declaration, his counsel on this motion
also points to “the fact that the case was pending against him for more than four years” as
supporting an inference he was willing to go to trial if not for the plea agreement and
Mr. Hansen’s erroneous advice. Id.
No evidence suggests Hernandez-Valencia could have obtained a better plea agreement.
He submits no evidence of similar cases in which the government agreed to more favorable
agreements for similarly situated defendants. Nor has he offered any statistical evidence about
the proportion of similarly situated defendants who received lower sentences. Cf. United States v.
Raya-Vaca, 771 F.3d 1195, 1209 (9th Cir. 2014), abrogated on other grounds by Dep’t of
Homeland Sec. v. Thuraissigiam, 591 U.S. 1959 (2020) (finding prejudice based on statistical
evidence in record about similarly situated defendants in immigration context). The court finds
the record does not support Hernandez-Valencia’s argument that he could have obtained a better
plea agreement.	27
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As noted, Hernandez-Valencia does claim, however, he would have proceeded to trial if
his attorney had accurately advised him of his sentencing exposure. Hernandez-Valencia Decl.
¶ 4. The government disagrees and points to the detailed nature of the plea colloquy, which
advised him of the possibility of life in prison upon conviction, as evidence Hernandez-Valencia
was not prejudiced. See Change of Plea Hr’g Tr. at 9–10, ECF No. 527. As with the contested
evidence about what advice Hernandez-Valencia’s counsel provided in connection with his plea,
the counterfactual inquiry of “what a defendant would have done” also is particularly appropriate
for an evidentiary hearing. See United States v. Werle, 35 F.4th 1195, 1206 (9th Cir. 2022).
Because the motion and records of the case do not conclusively show Hernandez-Valencia
is not entitled to relief, the court must hold an evidentiary hearing to determine if Hernandez-
Valencia’s entry into the plea agreement was knowing and voluntary and whether he suffered
prejudice as a result of his attorney’s allegedly ineffective assistance. That is true even if, as
Hernandez-Valencia states in his supplemental brief, a hearing is “not likely to sharpen either [his
own] or Mr. Hansen’s memory” and the circumstances might imply “Mr. Hansen did not explain
to Mr. Hernandez-Valencia that he would be facing an advisory Guidelines range of 360-months-
to-life.” Def.’s Suppl. Br. at 2. Nor can the court agree with the government’s view of the record
as demonstrating Mr. Hernandez-Valencia is not credible. His credibility, as well as
Mr. Hansen’s memory of their conversations, can only be judged with the benefit of more
information about the circumstances, the reasons they have reached the beliefs expressed in their
respective declarations and observation of their demeanor. As summarized above, controlling
precedent makes an evidentiary hearing mandatory unless the moving defendant’s claims are
factually or legally invalid. The court cannot reach that conclusion on the current record.	22
III. 	CLAIM FOUR	23
The answer to the question whether Hernandez-Valencia’s plea was knowing and	24
voluntary will also determine whether he waived a collateral attack to Claim Four in the plea	25
agreement. Although “[a] knowing and voluntary express waiver of the right to collateral attack	26
under § 2255 in a plea agreement is enforceable,” Ortiz, 2019 WL 6727565, at *2, “[w]aivers of	27
appellate rights or the right to collateral attack are unenforceable, however, with respect to	28
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ineffective assistance of counsel claims challenging the voluntariness of the waiver itself.” Id.	1
(citing Lampert, 422 F.3d at 870). Claims of ineffective assistance of counsel often implicate the	2
validity of plea agreements secured by the allegedly ineffective counsel, and those claims are not	3
normally considered waived by plea agreements. See Pruitt, 32 F.3d at 433; Baramdyka, 95 F.3d	4
at 844.	5
Regarding Hernandez-Valencia’s fourth claim asserting counsel improperly failed to make	6
a particular argument at sentencing, this claim would be waived if Hernandez-Valencia’s entering	7
into the plea agreement was knowing and voluntary. At the outset, the court declines to consider	8
the Department of Justice Guidelines he cites. See Am. Mot. at 19–20; Reply at 3. In analyzing	9
the waiver provision of the agreement, the court does not consider those Guidelines, in place at	10
the time the parties entered into the plea agreement, without evidence of fraud, duress, or a	11
mutual mistake, because doing so would be an improper consideration of parol evidence. United	12
States v. Pacheco-Osuna, 23 F.3d 269, 271 (9th Cir. 1994) (“[W]e have previously eschewed the	13
invitation to consider parol evidence for the purpose of adding terms to or changing the terms of	14
an integrated plea agreement.”).	15
Hernandez-Valencia also argues his fourth claim is not waived because the Ninth Circuit	16
has held that “waiver does not bar the defendant from challenging an illegal sentence.” Reply at	17
6 (citing United States v. Wells, 29 F.4th 580, 584 (9th Cir. 2022)). But in Wells, the Ninth	18
Circuit clarified that “an ‘illegal sentence’ has a very limited and precise meaning,” i.e., it is “‘not	19
authorized by the judgment of conviction or in excess of the permissible statutory penalty for the	20
crime.’” Id. (quoting United States v. Lo, 839 F.3d 777, 785 (9th Cir. 2016) and United States v.	21
Vences, 169 F.3d 611, 613 (9th Cir. 1999)). Here, Hernandez-Valencia’s fourth claim does not	22
argue his sentence exceeds permissible statutory penalties; it is not “illegal” as defined by Wells.	23
Finally, Hernandez-Valencia’s fourth claim “does not assert that [he] did not understand	24
the terms and consequences of the plea agreement actually offered to him, nor does it assert that	25
[he] was induced by promise or threats to enter the agreement.” Rodriguez, 49 F.4th at 1213.	26
Instead, it rests on an argument about his counsel’s advocacy at the sentencing stage, after	27
Hernandez-Valencia had entered into the plea agreement. This claim does not challenge whether	28
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Hernandez-Valencia entered into the agreement knowingly and voluntarily and it therefore	1
“cannot be exempted from the provisions of the collateral-attack waiver” if the plea agreement as	2
a whole was made knowingly and voluntarily. Id.	3
As defense counsel correctly points out, “‘waivers of appeal must stand or fall with the	4
agreement of which they are a part’” and courts in the Ninth Circuit “assess the knowing and	5
voluntary nature of an appeal/collateral-attack waiver by assessing the knowing and voluntary	6
nature of the plea agreement as a whole.” Id. at 1212 (quoting Lo, 839 F.3d at 784 and United	7
States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999)). That is, if the court finds	8
Hernandez-Valencia entered into the plea agreement knowingly and voluntarily, the court must	9
also conclude his right to challenge his attorney’s representation at sentencing is waived under the	10
agreement. The court therefore reserves a determination on Claim Four until after an evidentiary	11
hearing is held.	12
IV. 	CONCLUSION	13
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For the reasons above, Mr. Hernandez-Valencia is entitled to an evidentiary hearing on
claim one in his amended motion to vacate or reduce his sentence. The court refers the matter to
the assigned magistrate judge for the purpose of conducting an evidentiary hearing on the limited
question described above and presenting findings and recommendations based on the record
created at the hearing. Claims two and three are denied as withdrawn, and the court defers its
decision on claim four of the amended motion at ECF No. 538, which remains pending.
IT IS SO ORDERED.
DATED: October 28, 2025.	21
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