The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING MOVANT'S § 2255 MOTION
Movant Leonel Garcia Moreno, a federal prisoner incarcerated at Elroy Detention Center in Elroy, Arizona, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Respondent the United States of America opposes the motion. Having considered the parties' papers, the Court DENIES Movant's motion to vacate, set aside or correct his sentence.
On November 20, 2003, an indictment was filed charging Movant with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(I).
On February 2, 2004, Movant plead guilty to possession with intent to distribute approximately 1.5 kilograms of heroin and entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (B). In that agreement, Movant stated, inter alia, that he would "not ask for any other adjustment to or reduction in the offense level or for a downward departure of any kind." Respondent agreed to recommend a sentence at the low end of Movant's Guidelines range. The Presentence Report (PSR) calculated Movant's offense level to be 27, and his criminal history to be category I. On June 14, 2004, following the recommendations of the PSR and the parties' plea agreement, the Court found that Movant's offense level was 27, and his criminal history was category I. The Court sentenced Movant to seventy months imprisonment, which was at the low end of the Guidelines range.
On December 22, 2004, Movant filed this motion under 28 U.S.C. § 2255 on the grounds that (1) he was denied effective assistance of counsel, and (2) he has made significant post-conviction rehabilitation efforts.
A prisoner in custody under sentence of a federal court may collaterally attack the validity of his sentence by a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the sentencing court is authorized to grant relief if it concludes 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."
The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. United States v. Addonizio, 442 U.S. 178, 184-85 (1979). However, it does not encompass all claimed errors in conviction and sentencing. Id. at 187. An error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. at 184 (footnote omitted).
I. Ineffective Assistance of Counsel
Movant argues that he was deprived of effective assistance of counsel in sentencing, due to his counsel's decision not to seek downward departures for aberrant behavior and deportable alien status. U.S.S.G. §§ 5K2.20, 5K2.0. Respondent contends that Movant waived his right to seek downward departures in his plea agreement, and that Movant's counsel's decision not to seek downward departures was objectively reasonable and caused Movant no prejudice.
The Sixth Amendment right to counsel guarantees effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance of counsel claim, a defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant. Id.
To show that counsel's performance was deficient, a defendant must show that the performance fell below an objective standard of reasonableness. Id. at 688. The relevant inquiry is not what counsel could have done, but rather whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). A court must indulge a strong presumption that counsel's ...