Opinion
CV-17-4707-PHX-SRB (JFM) CR-15-1501-PHX-SRB
07-17-2018
Luis Fernando Zavala-Algandar, Movant/Defendant v. United States of America, Respondent/Plaintiff.
Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence
I. MATTER UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on December 19, 2017 (Doc. 1). On May 21, 2018, Respondent filed its Response (Doc. 5). Movant filed a Reply on June 8, 2018 (Doc. 9).
The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL
Movant's written Plea Agreement provided a statement of factual basis reflecting that Movant led (along with others) a drug trafficking organization from January, 2013 to December 2, 2015, which smuggled drugs from Mexico, sold 5,531 grams of heroin and 803 grams of methamphetamines in the United States, and exported the resulting funds back to Mexico to hide them. (Exhibit A, Plea Agreement at 10-12.) (Exhibits to the Response, Doc. 5, are referenced herein as "Exhibit ___.") (Filings in the underlying criminal case, CV-15-1501-PHX-SRB, are referenced herein as "CR Doc. ___.") B. PROCEEDINGS AT TRIAL
Movant and his co-conspirators were indicted in this Court on December 2, 2015. Movant was charged with: Count 1 - Conspiracy to Possess With Intent to Distribute a Controlled Substance in violation of 21 U.S.C. Section 846; and Count 3 - Money Laundering Conspiracy in violation of 18 U.S.C. § 1956(h). (CR Doc. 10, Indictment.)
Movant, being represented by counsel, eventually entered into written Plea Agreement (Exhibit A), wherein he agreed to plead guilty to the charges, in exchange for an agreement to a recommendation of sentencing at the low end of the guideline range, a stipulation on the amount of drugs involved, and a two or three offense level reduction for acceptance of responsibility.
The Plea Agreement included the following waiver:
6. WAIVER OF DEFENSES AND APPEAL RIGHTS(Exhibit A, Plea Agreement at 5-6 (emphasis in original).)
The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under 18 U.S.C. § 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of "prosecutorial misconduct" (as that term is defined by Section 11.B of Ariz. Ethics Op. 15-01 (2015)).
Movant entered his guilty plea on July 29, 2016 before U.S. Magistrate Judge Burns. (Exhibit C, R.T. 7/29/16.) The plea colloquy included the following exchange:
THE COURT: Now, if I do recommend to [the district judge]
that your guilty pleas be accepted, once she accepts them, after that you won't be permitted to withdraw from your guilty plea unless you can demonstrate a fair and just reason for doing so. And if she accepts your guilty pleas and then sentences you pursuant to these plea agreements, there is a paragraph in your plea agreements entitled Waiver of Defenses and Appeal Rights. What that tells you is that you have given up any right to challenge these charges against you and you have given up your right to appeal. Normally a person who is convicted of a crime would have the right to appeal their judgment and sentence to a higher court and also may have the right to come back before this Court in a collateral proceeding to challenge that judgment and sentence by way of motion or petition.(Id. at 12.) The Court accepted the guilty plea on September 26, 2016, but deferred acceptance of the plea agreement. (CR Doc. 445, Order 9/29/16.)
You are giving up this right. Do you understand this?
THE INTERPRETER: Yes by both.
THE COURT: That waiver, however, would not act to preclude a later claim of ineffective assistance of counsel or prosecutorial misconduct.
The Final Presentence Investigation Report (CR Doc. 708) calculated a Base Offense Level of 32 under U.S.S.G. § 2S1.1, calculating his Drug Quantity, using a conversion to marihuana equivalent of 1 to 1000 for heroin and 1 to 2000 for methamphetamine, pursuant to U.S.S.G. § 2D1.1. Thus his 5.531 kilograms of heroin equated to 5,531 kilograms of marihuana, and his 803.0 grams of methamphetamine equated to 1,606 kilograms of marihuana, for a total of 7,137 kilograms of marihuana equivalent. Two levels were added under U.S.S.G. § 2S1.1(b)(2)(B), because his conviction was under 18 U.S.C. § 1956. Four levels were added for leadership role. Three levels were deducted for acceptance of responsibility, resulting in a total offense level 35. Movant had a criminal history score of zero, and thus was a Criminal History Category I. The report calculated a guidelines range of 168 to 210 months. Based on the Plea Agreement, the Report recommended concurrent sentences of 168 months on both Counts 1 and 3.
Defense counsel filed a Sentencing Memorandum (CR Doc. 592), voicing no substantive objection to the presentence report, but requesting a ten year sentence based on "Defendant's history, the nature and circumstances of the offense, minimal criminal history and acceptance of responsibility, a sentence of 7 to 10 years imprisonment represents a just and reasonable sentence for Mr. Zavala-Algandar... a significant penalty for Defendant's first felony conviction." (Id. at 1-2.) Like the Presentence Investigation Report, the Sentencing Memorandum calculated "an advisory guideline range of 168 to 210 months imprisonment, based on a Total Offense Level 35 and Criminal History Category I."
Movant appeared for sentencing on December 20, 2016. At the outset, the parties advised the Court that the government believed Movant's base offense level had to be increased by two points under U.S.S.G. § 2D1.1(b)(5) because of his "knowing importation of methamphetamine." (Exhibit B, R.T. 12/20/16 at 2.) The result was to increase the guidelines sentencing range to 210 to 262 months. (Id. at 3.) Movant conferred with counsel, and counsel advised that Movant wished to proceed under the Plea Agreement. (Id. at 5-6.) The Government recommended sentencing at the low end of the corrected range. (Id. at 16.) Ultimately, the Court declined to depart from the Guidelines, and imposed concurrent sentences of 210 months on both counts. (Id. at 22.) C. PROCEEDINGS ON DIRECT APPEAL
Movant did not file a direct appeal. (Motion, Doc. 1 at 1.) D. PRESENT MOTION TO VACATE
Motion - Movant commenced the current case by filing his Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 on December 19, 2017 (Doc. 1). Movant's Motion asserts the following three grounds for relief: Ground One - that based on the volume of drugs, his Base Offense Level should have been 32 not 34, and the imposition of a higher range was a violation by the Court of the Plea Agreement, in violation of Fed. R. Crim. P. 11(c)(1)(C), and Due Process; Ground Two - that counsel was ineffective for failing to raise the breach; and Ground Three - that his Plea Agreement was breached by the Government because of the error in the Base Offense Level.
Response - On May 21, 2018, Respondent filed its Response (Doc. 5), arguing that Movant waived his right to bring Grounds One and Three as a result of his guilty plea, and waived his right to bring the instant collateral attack by the terms of his written Plea Agreement. Respondent argues that Movant's plea and entry into the Plea Agreement were made knowingly and voluntarily, and thus his waiver is enforceable. Respondent further argues that Movant's sentence was in accordance with the terms of the Plea Agreement, thus there was no breach, and his waiver is thus enforceable. With regard to the ineffective assistance of counsel claim in Ground Two, Respondent argues that Movant can show neither deficient performance nor prejudice because the sentencing was proper.
Reply - On June 8, 2018 Movant filed a Reply (Doc. 9). Movant argues the merits of his challenge to the calculation of the Base Offense Level, that a breach occurred and thus his waiver is not enforceable, and counsel was ineffective for failing to enforce the Plea Agreement.
III. APPLICATION OF LAW TO FACTS
A. MERITS OF GROUNDS ONE AND THREE
Respondents rely upon a waiver defense to dispose of Grounds One and Three, and address the ineffective assistance claim in Ground Two on the merits. Because the validity of the waiver and the resolution of the ineffectiveness claim rely upon the nature of Movant's underlying challenge to his sentence, and because the undersigned ultimately concludes that he waiver defense fails, the undersigned addresses at the outset the alleged sentencing errors asserted in Grounds One and Three.
Movant's contention is that under the terms of his Plea Agreement, the parties stipulated to the amount of drugs, and based on this his Base Offense Level should have been 32 not 34. In Ground One he argues this resulted in a denial of Due Process and a violation of Federal Rule of Criminal Procedure 11(c)(1)(C). In Ground Three, Movant argues it was a breach of his Plea Agreement. 1. Guidelines Methodology
Movant's Motion and Reply suggest that Movant is confused by the terminology and process utilized in reaching an advisory sentence under the Sentencing Guidelines. Accordingly, the undersigned reviews the process in depth.
Movant focuses on the appropriate "Base Offense Level." However, a Base Offense Level is only one stop in the process defined for determining a Guidelines sentencing range. The Guidelines direct the court to not only calculate a Base Offense Level for the offenses, but to "apply any appropriate specific offense characteristics, cross references, and special instructions." U.S.S.G. § 1B1.1(a)(2). The court then applies any Adjustments related to "victim, role, and obstruction of justice," U.S.S.G. § 1B1.1(a)(3), and the applies the Grouping principles "to group the various counts and adjust the offense level accordingly," U.S.S.G. § 1B1.1(a)(4). The court then adjusts for acceptance of responsibility, U.S.S.G. § 1B1.1(a)(5), resulting in the Total Offense Level. The court then calculates the Criminal History Category, U.S.S.G. § 1B1.1(a)(6). Using the fully adjusted, Total Offense Level and Criminal History Category, the court then determines the applicable guideline ranges, U.S.S.G. § 1B1.1(a)(7) and (8), and considers any appropriate special offender characteristics and departures, etc. provided in the Guidelines that would justify a variance from the guideline range, U.S.S.G. § 1B1.1(b). The court then determines the specific sentence to be applied based on the statutory sentencing factors. U.S.S.G. § 1B1.1(c). 2. Base Offense Levels and Offense Characteristics
Movant pled guilty to charges of conspiracy with intent to distribute in violation of 21 U.S.C. Section 846 and a money laundering conspiracy in violation of 18 U.S.C. § 1956(h). The Base Offense Level and Specific Offense Characteristics of each are addressed.
a. Drug Charge
Base Offense Level - Sentencing on the drug charge was governed by U.S.S.G. § 2D1.1, which establishes a range of offense levels based on the quantity of drugs involved.
However, that table of offense levels is correlated to only type of drug. Accordingly, Application Note 8(B) to § 2D1.1 provides that where a drug offense involves "differing controlled substances," a single offense level is obtained by converting each substance into its "marihuana equivalent, adding together the quantities to determine the combined offense level. Note 8(D) provides the Drug Equivalency Table, and provides: "1 gm of Heroin = 1 kg of marihuana," and "1 gm of Methamphetamine = 2 kg of marihuana."
Thus, based on Movant's admitted conduct of 5,531 grams of heroin and 803 grams of methamphetamine, Movant has properly calculated his equivalency as 7,137 kilograms of marihuana (5,531 kg based on the heroin, and 1606 kg based on the methamphetamine).
Section 2D1.1 provides that with an equivalent of "[a]t least 3,000 KG but less than 10,000 KG of Marihuana," a Base Offense Level of 32 applies. U.S.S.G. § 2D1.1(c)(4).
Thus, contrary to Movant's contentions, his drug offense was determined by the Court to have a Base Offense Level of 32, not 34.
Specific Offense Characteristics - However, § 1B1.1(a)(2) requires not only the determination of the Base Offense Level, but the application of "any appropriate specific offense characteristics, cross references, and special instructions contained in the particular guideline." In particular, § 2D1.1(b)(5) directed that because Movant's offense "involved the importation of amphetamine or methamphetamine," the offense level was increased by 2 levels. That increase was the omission in the Presentence Investigation Report which was disclosed and discussed at sentencing.
Nothing in the Plea Agreement suggests an agreement that the Specific Offense Characteristics in § 2D1.1 would not apply, or more particularly that U.S.S.G. § 2D1.1(b)(5) would not apply.
Indeed, Movant concedes there was no such agreement, and instead argues:
However, given the nature of the statues under which the Defendant was convicted (18 U.S.C. §1956(h) and 21 U.S.C. §846) the amount of controlled substance involved is the main sentencing factor, representing the corner-stone of Guideline calculations and basically dictating the Defendant's base offense level. Since the amount of controlled substance was stipulated to under Rule 11 (c)(1 )(c), a base offense level was practically agreed to.(Reply, Doc. 9 at 4.) Movant's contention is well taken that (given the nature of his offenses) a stipulation to the drugs involved was the functional equivalent of a stipulation to the Base Offense Level. But such a stipulation does not amount to a waiver (explicit or functional) of the application of the Specific Offense Characteristics. Thus, the stipulation on the drug amounts was the functional equivalent of an agreement to the Base Offense Level of 32, but the stipulation to the drug types was the functional equivalent of an agreement to the increase of 2 levels based on the methamphetamines.
Movant suggests that he relied upon the original, erroneous, Presentence Investigation Report calculation of the offense level without adding in the two levels under § 2D1.1(b)(5). (Reply, Doc. 9 at 1.) But Movant entered into the Plea Agreement and entered his guilty plea prior to that report being prepared. Thus, his acceptance of the Plea Agreement and entry of his plea could not have been induced by that error.
Thus, even though Movant's Base Offense Level on the drug charge was only 32, the applicable offense level was properly calculated as 34.
b. Money Laundering
Of course, Movant was not convicted of only the drug offense. He was also convicted on the money laundering offense.
Base Offense Level - Sentencing on the money laundering was governed by U.S.S.G. § 2S1.1. Under that section, the Base Offense Level for the money laundering is "the offense level for the underlying offense from which the laundered funds were derived." U.S.S.G. § 2S1.1(a)(1) (emphasis added). Section 1B1.5 provides that a reference to the "offense level" for another offense (such as the underlying drug charge) is not the Base Offense Level (which in the case would have been 32), "refers to the entire offense guideline (i.e., the base offense level, specific offense characteristics, cross references, and special instructions)." Here, that would have been the offense level for the drug offense calculated above, including the 2 level increase for the Specific Offense Characteristic based on the methamphetamine, or 34.
Specific Offense Characteristics - The Guidelines then increase the Base Offense Level for the money laundering based on "Specific Offense Characteristics", which in this case resulted in an increase of 2 levels because Movant "was convicted under 18 U.S.C. § 1956," i.e. the drug offense. U.S.S.G. § 2S1.1(b)(2)(B). Thus, Movant's offense level on the money laundering was increased to 36. 3. Adjustments
Movant was al subjected to a four level adjustment for his leadership role, under U.S.S.G. § 3B1.1(a), which would bring his offense level to 38 on the drug offense and 40 on the money laundering. 4. Group Treatment of Interrelated Counts
Movant's two convictions arose out of related conspiracies. The Sentencing Guidelines' grouping provisions are designed to recognize the relationship. Thus, because the drugs and money laundering offenses were interrelated (the drug offense "embodie[d] conduct that is treated as a special offense characteristic" in the money laundering offense), the two counts were "grouped together into a single Group, U.S.S.G. § 3D1.2(c), and the "highest offense level of the counts in the Group" applied to the whole Group, U.S.S.G. § 2D1.3(a). Accordingly, Movant's proper offense level (before adjustments, etc.) for each of the offenses in the Group was the higher level applicable to the money laundering, i.e. offense level 40. 5. Acceptance of Responsibility
Movant was then granted to an adjustment of three levels downward for acceptance of responsibility afforded to him by U.S.S.G. § 3E1.1(a) and (b). 6. Total Offense Level
Thus, Movant's Total Offense Level was properly calculated by the court at sentencing as 37. 7. Criminal History Category
Movant proffers nothing to counter his calculated Criminal History Category I. Of course, because Movant was in the lowest category, any error would not work in his favor. 8. Applicable Sentencing Range
The applicable sentencing range for a Total Offense Level 37 with a Criminal History Category I was 210 to 262 months. U.S.S.G., Sentencing Table. 9. Departures
The Court made no departures. Movant presents no argument that this was error. 10. Specific Sentence
Movant offers nothing to show that the Plea Agreement included any agreements regarding offense levels, representations as to what sentencing guidelines provisions would be applied (apart from those relating to acceptance of responsibility, which were applied), or specific sentences.
Movant asserts a violation of Federal Rule of Criminal Procedure 11(c)(1)(C). That provision relates to "agree[ments] that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply." Fed. R. Crim. Proc. 11(c)(1)(C). If the plea agreement is accepted by the court, then such agreement "binds the court." Id. Here, the only such agreement made was that relating to the quantity of drugs. But in sentencing Movant, the court accepted and relied upon the stipulated drug quantities.
The only other sentencing concession by the Government in the Plea Agreement was that the Government would recommend that Movant be sentenced to the lower end of the Guidelines range. (Exhibit A, Plea Agreement at 3.) Such a recommendation is governed by Federal Rule of Criminal Procedure 11(c)(1)(B), which concerns agreements that the Government will "recommend...that a particular sentence or sentencing range is appropriate." The Rule provides that "such a recommendation ...does not bind the court." Fed. R. Crim. Proc. 11(c)(1)(B). Here, not only was the required recommendation given, but it was actually followed by the court in sentencing Movant to 210 months on each of the offenses, notwithstanding that such recommendation was not binding.
Thus, neither the government nor the court breached any agreement in the stipulation with regard to the Sentencing Guidelines or the ultimate sentence.
Having concluded on sentences of 210 months on each count, then pursuant to its discretion, see Setser v. United States, 566 U.S. 231, 236 (2012), the court made the two sentences run concurrently. 11. Conclusion re Sentencing Error
Based on the foregoing, Movant fails to show any sentencing error, violation of the Plea Agreement, or violation of Rule 11(c)(1) in his sentencing. Consequently, he also fails to show a denial of Due Process.
Therefore, Movant's Grounds One and Three are without merit, and should be denied. / / B. WAIVER
Respondent argues that Movant waived his right to pursue his claims pursuant to his guilty plea and by the terms of his Plea Agreement. 1. Implicit Waivers
Some constitutional rights are automatically waived by entering an unconditional guilty plea. Such rights include, among others, the right to a jury trial, the right to confront one's accusers, and the right to invoke the privilege against self-incrimination, McCarthy v. United States, 394 U.S. 459, 466 (1969), as well as the right to challenge constitutional defects which occur before entry of the plea. United States v. Broce, 488 U.S. 563, 573-74 (1989). A guilty plea breaks the chain of events that preceded it in the criminal process. Tollett v. Henderson, 411 U.S. 258, 267 (1973). So, as a general rule, once a defendant enters a valid guilty plea, he can no longer raise a claim of violation of constitutional rights that arose prior to the plea. Id. at 267; United States v. Benson, 579 F.2d 508, 510 (9th Cir. 1978). 2. Explicit Waivers
The courts have long recognized exceptions to this rule for certain claims that go to "the very power of the State" to prosecute. See e.g. Blackledge v. Perry, 417 U.S. 21 (1974) (vindictive prosecution in violation of due process); Menna v. New York, 423 U.S. 61 (double jeopardy defense); United States v. Broce, 488 U.S. 563 (1989) (limiting Menna to double jeopardy claims that appear on the face of the record); Class v. U.S., 138 S.Ct. 798 (2018) (challenges to the constitutionality of the statute of conviction). Movant does not raise these types of claims. --------
In addition to the implicit waiver resulting from a guilty plea, the Ninth Circuit regularly enforces "knowing and voluntary" waivers of appellate rights in criminal cases, provided that the waivers are part of negotiated guilty pleas, see United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994), and do not violate public policy, see United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996) (cataloguing public policy exceptions). Similarly, the right to collateral review may be waived. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Such waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements. See Baramdyka, 95 F.3d at 843.
Moreover, a defendant's rights to challenge any sentencing errors may be explicitly waived. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). Further, where a waiver specifically includes the waiver of the right to attack a sentence, then it also waives "the right to argue ineffective assistance of counsel at sentencing." U.S. v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000).
However, there are some flavors of errors at sentencing that are not waivable. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (sentence violates the terms of the plea agreement); United States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir.1995) ("sentencing error could be entirely unforeseeable and therefore not barred"); United States v. Jacobson, 15 F.3d 19 (2nd Cir.1994) (sentencing disparity among co-defendants based entirely on race); United States v. Marin, 961 F .2d 493, 496 (4th Cir.1992) (sentence in excess of maximum statutory penalty or based on a constitutionally impermissible factor such as race); United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (sentenced that exceeds the permissible statutory penalty for the crime or violates the Constitution); U.S. v. Torres, 828 F.3d 1113 (9th Cir. 2016) (sentence based on mandatory Sentencing Guideline that violates the Constitution). 3. Application to Movant
Here, Movant does not assert any claims regarding pre-plea defects. Rather, his claims relate solely to sentencing, which was post-plea. Accordingly, Movant's guilty plea did not, of itself, waive any of the claims raised in his Motion.
However, Movant's Plea Agreement included an explicit waiver that precludes the instant Motion. Moreover, Movant's waiver extended to sentencing issues. (See Exhibit A, Plea Agreement at 4.)
However, Movant's claims in Grounds One and Three are that his sentence violated the terms of his Plea Agreement (and that such violation resulted in violations of Rule 11(c)(1)(C) and Due Process). Such claims are not waivable. Bolinger, 940 F.2d at 480. Although the undersigned has concluded that no such violation occurred, that does not alter the nature of Movant's claim.
Moreover, because Movant's claim of ineffective assistance in Ground Two is dependent upon his underlying claim of a breach of the plea agreement, which is not waived, the claim in Ground Two is also excepted from the waiver. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (finding waiver of right to argue ineffective assistance implicit in and coextensive with, waiver of right to argue underlying sentencing issue).
However, Movant's Ground Two also incorporates a claim that counsel was ineffective in failing to advise Movant on his rights to appeal based on the breach of the Plea Agreement. (Motion, Doc. 1 at 5.) To the extent that Movant refers to a post-trial failure of advice about appeal, such a failing could arguably be outside his waiver. To the extent that Movant refers to a failure to adequately advise Movant in the course of entering into the plea agreement, such a failing might render Movant's plea (and thus his waivers) unenforceable. Accordingly, the undersigned addresses the merits of such claim hereinafter. C. MERITS OF GROUND TWO
In Ground Two, Movant argues that he received ineffective assistance of counsel at sentencing because counsel failed to object to the breach of his Plea Agreement, and failed to advise Movant on his appeal rights over a breach of the Plea Agreement.
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
It is clear that the failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). Moreover, when a foregone course of conduct would have been futile, the failure to pursue it necessarily cannot have prejudiced the defendant. "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Here, as discussed hereinabove with regard to Grounds One and Three, Movant has failed to show a breach of the Plea Agreement. Consequently, a motion opposing the sentence asserting a breach, and any advice to appeal based on a breach, would have been without merit and would have been futile.
Accordingly, Movant can show neither deficient performance nor prejudice from counsel's failure to make such a motion or offer such advice regarding an appeal.
Therefore, Movant's Ground Two is without merit and should be denied. B. SUMMARY
Because they are founded upon an alleged violation of the Plea Agreement, Movant's claims are not precluded by his guilty plea or his Plea Agreement. However, Movant fails to show a breach of his Plea Agreement, and thus his claims of sentencing error in Grounds One and Three, and his derivative claims of ineffective assistance of counsel in Ground Two, must all be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2255 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and challenges Movant's federal criminal judgment or sentence. The recommendations if accepted will result in Movant's Motion being resolved adversely to Movant. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on the merits. Under the reasoning set forth herein, jurists of reason would not find the district court's assessment of the claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed December 19, 2017 (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages." Dated: July 17, 2018
17-4707r RR 18 07 09 on HC.docx
/s/_________
James F. Metcalf
United States Magistrate Judge