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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gilberto Jimenez-Najera, 

Petitioner, 

v. 

USA, 

Respondent. 

No. CV-15-2565-PHX-GMS (DKD)

REPORT AND RECOMMENDATION 

TO THE HONORABLE G. MURRAY SNOW, U.S. DISTRICT COURT JUDGE: 

 Petitioner Gilberto Jimenez-Najera filed this Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 (“Section 2255 Motion”) after he had entered a 

plea of guilty to one violation of 8 U.S.C. § 1326(a) and was sentenced to 33 months to 

be followed by a term of supervised release. (CR-14-2565 (“CR”) Docs. 3, 18, 21) He 

argues that he is entitled to relief because he received poor legal advice, his sentence was 

excessive, and he did not understand his plea agreement. (Doc. 1 at 4-6) As explained 

below, the Court recommends that this Motion be denied. 

BACKGROUND

 On October 29, 2014, Jimenez-Najera was found guilty, pursuant to a plea 

agreement, for reentry of a removed alien. (CR Docs. 3, 18, 21) During his change of 

plea colloquy, the Court reviewed the terms of his plea agreement. (CR Doc. 31) 

Jimenez-Najera confirmed that he had spoken directly with his attorney in Spanish and 

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had understood his attorney. (Id. at 5) He agreed that he had enough time to discuss the 

plea agreement with his attorney, did discuss the entire plea agreement with his attorney, 

had signed the plea agreement after his attorney had satisfactorily answered all of his 

questions about it, and was satisfied with his attorney’s representation of him in the case. 

(Id. at 4-5) 

 During the colloquy with the Court, Jimenez-Najera also said that he understood, 

and waived, his rights to a grand jury, a trial by jury, an appeal, and any collateral attack 

on his judgment and sentence. (Id. at 7, 16-18, 21) He stated that he understood the plea 

agreement, that it contained all the promises that had been made to him, and that no other 

promises had been made to him. (Id. at 5, 6-7, 15) He confirmed that no one forced, 

threatened, or coerced him in any way to enter a plea of guilty. (Id. at 6) He confirmed 

that he had no questions about the possible consequences of his guilty plea, including the 

maximum possible penalties and the imposition of supervised release. (Id. at 8-9, 11, 15) 

 During the plea colloquy, Jimenez-Najera’s attorney told the Court that he had 

provided Jimenez-Najera with estimates of which sentencing range guidelines might 

apply. (CR Doc. 31 at 15) The Court confirmed that Jimenez-Najera understood that 

these estimates were not binding on the Court at sentencing. (CR Doc. 31 at 15-16) 

 Jimenez-Najera also admitted to the factual basis of his plea and to the existence 

of a prior felony conviction. (Id. at 22) At the conclusion of the colloquy, the Court 

found that Jimenez-Najera had entered into his plea knowingly, voluntarily, and 

intelligently. (Id. at 23) 

 At his sentencing hearing, Jimenez-Najera’s counsel argued that he should have a 

reduced sentence because of his child’s illness. (Doc. 60 at 8-12) The Court found that 

Jimenez-Najera had not met his burden for the sentencing variance. (Id. at 15) The 

Court found that Jimenez-Najera’s sentencing range was between 33 and 41 months and 

sentenced him to a term of 33 months to be followed by three years of supervised release. 

(Id. at 15-17) 

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 Jimenez-Najera timely filed this Motion and the government timely responded. 

(Docs. 1, 4) Jimenez-Najera did not reply but he did ask the Court to grant him relief 

because he had not received a copy of the Response and had concluded that it was 

untimely. (Doc. 5) Because the government did file a Response and the record shows 

that a copy was mailed to Jimenez-Najera, this request will be denied. (Doc.4 at 11) 

DISCUSSION

 In his Section 2255 Motion, Jimenez-Najera argues that he is entitled to relief 

because (1) he received “poor and insufficient” legal advice, (2) his sentence was 

excessive, (3) he signed a plea agreement without fully understanding it, and (4) he did 

not file a direct appeal because of poor legal advice. (Doc. 1 at 4-6) Put another way, 

Jimenez-Najera raises one substantive claim in Claim 2 and three claims of ineffective 

assistance of counsel in Claims 1, 3, and 4. In response, the United States argues that 

Jimenez-Najera waived his right to raise his substantive claim and argues that his 

ineffective assistance of counsel claims fail on the merits. (Doc. 4) 

 Excessive Sentence. In Claim 2, Jimenez-Najera argues that his sentence was 

excessive because “the maximum term of imprisonment for a re-entry is not more than 

two years.” (Doc. 1 at 5) As part of the written plea agreement, Jimenez-Najera agreed 

to waive “any right to file an appeal, any collateral attack, and any other writ or motion 

that challenges...any aspect of the defendant’s sentence, including the manner in which 

the sentence is determined.” (CR Doc. 46 at 5) The government argues that JimenezNajera expressly waived his right to file a challenge to his sentence under Section 2255 

motion as part of his plea agreement and so the Court cannot consider this argument. 

 Courts will generally enforce the plain language of a plea agreement if it is clear 

and unambiguous on its face, and the waiver was knowingly and voluntarily made. 

United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004); United States v. Nunez, 223 

F.3d 956, 958 (9th Cir. 2000). However, “[a] plea agreement does not waive the right to 

bring a § 2255 motion unless it does so expressly.” United States v. Pruitt, 32 F.3d 431, 

433 (9th Cir. 1994). 

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 The record shows that Jimenez-Najera’s plea agreement unambiguously waived 

his right to raise a collateral attach on the length of his sentence. The record also shows 

that he entered into his plea agreement knowingly, voluntarily and intelligently. In his 

plea colloquy, Jimenez-Najera’s attorney stated that the plea was provided to JimenezNajera in Spanish and Jimenez-Najera stated that he understood everything that was in 

the plea agreement, that he was satisfied with the representation of counsel, that he 

understood the charges against him, and that he had no questions about the plea. Further, 

he specifically stated that he understood that he was waiving his right to appeal and to 

collaterally attack his sentence. Accordingly, Jimenez-Najera has not shown that his 

waiver was involuntary or that he entered into the plea agreement involuntarily. 

 However, even if the Court could consider this argument, Jimenez-Najera’s 

sentence was properly enhanced because of his prior felony conviction, a conviction that 

he acknowledged during his plea colloquy. (Doc. 4 at n.3, CR Doc. 31 at 22) See e.g., 8 

U.S.C. § 1326(b)(1). Accordingly, this claim cannot stand. 

 Ineffective Assistance of Counsel. To prevail on his claims of ineffective 

assistance of trial counsel, Jimenez-Najera would have to show that his attorney’s 

performance was deficient and that he was prejudiced as a result of that deficiency. 

Strickland v. Washington, 466 U.S. 668 (1984).

“Poor and insufficient legal advice.” Jimenez-Najera claims that his lawyer did 

not assist him in obtaining any benefits because (a) his lawyer did not mention that he has 

“a handicap child” and (b) his lawyer had told him that he would receive a sentence of 

time served. (Doc. 1 at 5). These claims are not well taken. 

 First, Jimenez-Najera’s lawyer repeatedly argued that he should receive a more 

lenient sentence because of his child’s illness. (CR Doc. 60 at 8-12) That the Court 

considered these arguments and found them unpersuasive is not ineffective assistance of 

counsel. 

 Jimenez-Najera’s second claim, that his lawyer told him that he would receive 

time served, is also unpersuasive. During the plea colloquy, Jimenez-Najera’s attorney 

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told the Court that he had provided Jimenez-Najera with estimates of what sentencing 

range guidelines might apply. (CR Doc. 31 at 15) The Court confirmed that JimenezNajera understood that these estimates were not binding at sentencing. (CR Doc. 31 at 

15-16) “Solemn declarations in open court carry a strong presumption of verity. The 

subsequent presentation of conclusory allegations unsupported by specifics is subject to 

summary dismissal, as are contentions that in the face of the record are wholly 

incredible.” Blackledge v. Allison, 97 S.Ct. 1621, 1629 (1977). Jimenez-Najera’s 

“solemn declarations in open court” were that he understood the non-binding nature of 

his lawyer’s estimate of his sentence. (CR Doc. 31 at 15-16) To contradict this, he has 

provided only his own conclusory allegations. This is insufficient to rebut the “strong 

presumption of verity” and so this claim fails. 

Failure to Understand Plea Agreement. Jimenez-Najera claims that he signed his 

“plea agreement without fully understanding its contents. The language barrier was a 

clear obstacle for fully understanding my situation and rights.” (Doc. 1 at 5) This claim 

is contradicted by the record and, therefore, fails. 

 During his plea colloquy, Jimenez-Najera was assisted by a Spanish language 

interpreter.1

 (CR Docs. 18, 31) His counsel informed the Court that he speaks Spanish 

fluently and was able to communicate with Jimenez-Najera without an interpreter. (CR 

Doc. 31 at 5) He also informed the Court that the written plea agreement was translated 

into Spanish and Jimenez-Najera was provided a copy of the translated document. (CR 

Doc. 31 at 4) Jimenez-Najera informed the Court that he had reviewed the entire plea 

agreement with his lawyer, all of his questions had been answered before he signed it, he 

understood his lawyer when they spoke, and he was satisfied with the representation that 

he had received. (Id. at 4-5) 

 

1

 The record reflects that Jimenez-Najera was similarly assisted by a Spanish language interpreter during his initial appearance and at sentencing. (CR Docs. 2, 45) In addition, an interpreter read the presentence report to Jimenez-Najera in Spanish and answered his questions. (CR Doc. 60 at 5) 

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 The representations made by Jimenez-Najera and his counsel at the change of plea 

hearing, “as well as any findings made by the judge accepting the plea, constitute a 

formidable barrier in any subsequent collateral proceedings.” Blackledge, 97 S.Ct. 1621, 

1629 (1977). See also United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) 

(“Statements made by a defendant during a guilty plea hearing carry a strong 

presumption of veracity in subsequent proceedings attacking the plea.”); United States v. 

Anderson, 993 F.2d 1435, 1438 (9th Cir. 1993) (“Statements made by a criminal 

defendant contemporaneously with his plea should be accorded great weight because 

solemn declarations made in open court carry a strong presumption of verity.” (internal 

quotation marks and brackets omitted)). Instead of attempting to satisfy this high burden, 

Jimenez-Najera made only a blanket assertion of a language barrier with no explanation 

for the direct contradictions between his statements during his plea colloquy and his 

allegations in his Section 2255 Motion. Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 

2012). Accordingly, this ineffective assistance of counsel claim fails. 

Failure to File Direct Appeal. Jimenez-Najera claims that “[b]ecause of poor 

legal advice, I did not file a direct appeal.” (Doc. 1 at 6) However, in his plea 

agreement, Jimenez-Najera agreed to waive his right to an appeal and, during his plea 

colloquy, the Court confirmed that he understood he was waiving this right. (CR Docs. 

31 at 17-18, 46 at 5) Jimenez-Najera’s counsel was not ineffective for failing to advise 

Jimenez-Najera to exercise his right to file an appeal after he had waived that same right. 

 IT IS RECOMMENDED that Gilberto Jimenez-Najera’s Motion to Vacate, Set 

Aside or Correct Sentence be denied. (Doc. 1) 

 IT IS FURTHER ORDERED denying Petitioner’s Motion for Award of Relief 

Requested (Doc. 5)

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 

leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a 

substantial showing of the denial of a constitutional right. 

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 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the district court’s judgment. 

The parties shall have fourteen days from the date of service of a copy of this 

recommendation within which to file specific written objections with the Court. See, 28 

U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 

the parties have fourteen days within which to file a response to the objections. Failure 

timely to file objections to the Magistrate Judge’s Report and Recommendation may 

result in the acceptance of the Report and Recommendation by the district court without 

further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). 

Failure timely to file objections to any factual determinations of the Magistrate Judge will 

be considered a waiver of a party’s right to appellate review of the findings of fact in an 

order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 

72, Federal Rules of Civil Procedure. 

 Dated this 16th day of May, 2016. 

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