Opinion
Civil No. 01-67-HA. Cr. No. 99-215-HA.
July 6, 2001.
Michael W. Mosman, United States Attorney, District of Oregon, John C. Laing, Assistant United States Attorney, Portland, Oregon, Attorneys for the Government.
Cesar Ochoa-Valenzuela, Reg. # 63534065, Federal Correctional Institute, Sheridan, Oregon, Pro Se Petitioner.
OPINION AND ORDER
Petitioner has filed a petition under 28 U.S.C. § 2255, in which he seeks to correct his sentence (doc. # 107). The government filed a Response to the petition, and petitioner has filed a Reply brief. After reviewing the briefs and the Record of this case, I determine that the petition must be DENIED without further proceedings.
Standards 28 U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, `[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis in original). The court may deny a hearing if the petitioner's allegations, viewed against the record, fail to state a claim for relief or are "so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989) (quoting Marrow v. United States, 772 F.2d 525 (9th Cir. 1985)); see also United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle the petitioner to relief. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). Mere conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981).
In this case, petitioner pled guilty to one count of distribution of methamphetamine in violation of 21 U.S.C. § 841 (a)(1) on September 30, 1999. In accordance with his plea agreement, petitioner did not pursue a direct appeal. Petitioner filed a petition to vacate or correct sentence on January 12, 2001. He asserts he is entitled to relief because, in part, the presentence report contains errors that resulted in an unwarranted extension of his sentence, and also because he was deprived of effective assistance of counsel. The government filed a Response, which is construed by this court as a motion to dismiss the petition, on March 13, 2001 (doc. # 112).
This court has reviewed the Record and the parties' briefs, and has determined that a hearing is not necessary. The petition is denied.
Presentence Report
The government prepared a draft presentence report in this case, to which petitioner filed objections on December 20, 1999. Two amended reports were subsequently prepared, and at sentencing on January 18, 2000, petitioner's counsel argued against the application of a "leadership enhancement," and also that there were errors in petitioner's reported criminal history. This court relied upon the first of the two amended reports, concluded that the managerial role was applicable to petitioner, and sentenced petitioner to 151 months imprisonment.
Petitioner now argues that he was merely a "partner" with others, and should not have been classified as a leader or manager and subjected to the applicable sentencing enhancement. The court based its conclusion that petitioner was subject to a managerial enhancement upon its careful review of the presentence report (Para. 23). The court heard argument on this issue at sentencing, and remained convinced that such an enhancement was appropriate. Petitioner fails to now persuade the court otherwise.
Ineffective assistance of counsel
Petitioner also asserts a claim of ineffective assistance of his counsel, because that counsel allegedly failed to discover that petitioner's indictment was defective in that it charged petitioner with distributing a schedule II controlled substance. Petitioner contends that methamphetamine is a schedule III substance, unless it is in an injectable liquid form. Petitioner also contends that counsel was ineffective in failing to seek to correct the presentence report's proposed enhancement for a parole violation, and in failing to more vigorously oppose the managerial enhancement.
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his or her attorney's performance was unreasonable under prevailing professional standards; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. United States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." Id. (citing Strickland v. Washington, 466 U.S. 668, 687(1984)). Failure to make the required showing on either prong "defeats the ineffectiveness claim." Strickland, 466 U.S. at 700.
To establish ineffective assistance of counsel, petitioner must establish both deficient performance by counsel and that the deficiency prejudiced the petitioner. Williams v. Calderon, 52 F.3d 1465, 1469 (9th Cir. 1995), cert. denied, 516 U.S. 1124 (1996). There is no need to evaluate the counsel's performance if the petitioner fails to show that prejudice resulted from the counsel's alleged errors. Strickland, 466 U.S. at 697.
If prejudice from the alleged errors is shown, petitioner must overcome a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 690). "The essence of an ineffective assistance of counsel claim is that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Williams, 52 F.3d at 1469 (internal quotations omitted).
To establish deficient performance, the petitioner must first demonstrate that counsel not merely committed errors, but also performed outside the "wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Petitioner must show that counsel's representation failed to meet an objective standard of reasonableness. Id. at 688. To establish prejudice, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Williams, 52 F.3d at 1469 (quoting Strickland, 466 U.S. at 694). Counsel's errors must be "so serious as to deprive the defendant of a fair trial. . . ." Id. (quoting Strickland, 466 U.S. at 687).
Specifically, petitioner must show that counsel committed errors that a reasonable, competent lawyer, acting as a diligent and conscientious advocate, would not make, and that prejudice resulted. Katz v. United States, 920 F.2d 610 (9th Cir. 1990); Tinsley v. Borg, 895 F.2d 520 (9th Cir.), cert. denied, 498 U.S. 1091 (1990) (citing Strickland). The test is whether the assistance was reasonably effective under the circumstances, and judicial scrutiny must be highly deferential, with the court indulging a strong presumption that the attorney's conduct falls within the wide range of reasonable professional assistance. Id.
In this case, petitioner bases his assertion of ineffective assistance of counsel on the fact that his counsel failed to convince the court to (1) amend the classification of the controlled substance he pled guilty to distributing from schedule II to schedule III; (2) correct the allegation that petitioner violated his parole; and (3) reject the enhancement for a managerial role. This court agrees with the government's assertion that at the time of petitioner's offense, methamphetamine was listed as a schedule II controlled substance under 21 C.F.R. § 1308.12(a) and (d)(2). Petitioner's counsel presented arguments regarding the other issues petitioner identifies in the presentence report, in written objections and orally at sentencing. Accordingly, counsel adequately presented these issues and this court considered petitioner's positions at sentencing. After sentencing, this court issued a Findings of Fact Order that identified the issues challenged by defendant, and adopted the presentence report as its own findings and conclusions of law. This was sufficient. See United States v. McClain, 30 F.3d 1172, 1174 (9th Cir. 1994) (court's adoption of probation officials' position sufficient).
The court has carefully examined the record as it pertains to petitioner's claims, and determines that petitioner's claims and the allegations of ineffective assistance of counsel are insufficient to require a hearing. See Johnson, 988 F.2d at 945; Hearst, 638 F.2d at 1194. This court's review of the record, and the findings and conclusions made at sentencing, confirms that petitioner's attorney performed well within the "wide range of professionally competent assistance" and his representation did not fail to meet an objective standard of reasonableness.
Conclusion
This court has reviewed the record and the petition fully, including the government's Response and petitioner's subsequent "Rebuttal." There are no grounds requiring an evidentiary hearing, and no grounds available to grant the relief sought by petitioner. Accordingly, petitioner's motion to vacate sentence under 28 U.S.C. § 2255 (doc. # 107) is DENIED, and the government's Response, which is deemed to be a motion to dismiss the petition (doc. # 112) is GRANTED.
IT IS SO ORDERED.