The opinion of the court was delivered by: Hayes, Judge
This matter comes before the Court on Petitioner/Defendant's Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. # 79).
On September 29, 2004, Petitioner/Defendant Alma Adriana Busane was charged in a four count indictment with importation of approximately 21.29 kilograms of cocaine and 2.89 kilograms of methamphetamine in violation of 21 U.S.C. §§952 and 960 and possession with intent to distribute approximately 21.29 kilograms of cocaine and 2.89 kilograms of methamphetamine in violation of 21 U.S.C. § 841(a)(1).
On August 24, 2005, a jury returned a verdict finding Petitioner guilty of all counts in the Indictment.
On December 19, 2005, the Court held a sentencing hearing. The Court found that the base offense level was 38 under U.S.S.G. § 2D1.1(c)(1), denied an adjustment for minor role under U.S.S.G. § 3B1.2, and imposed a two level increase under U.S.S.G. § 2D1.1(b)(4) for importation of methamphetamine without a mitigating role adjustment. The Court found that safety valve did not apply because Petitioner did not provide authorities with a full and truthful account of the offense. The Court found the total offense level was 40, the Criminal History Category was I, and the guideline range was 292-365 months. The Court concluded that the minimum mandatory sentence of 120 months applied and sentenced the Petitioner to serve a period of 138 months imprisonment on each count to run concurrently. After full consideration of all factors set forth in 18 U.S.C. § 3553, the Court found that 138 months was a reasonable sentence.
Petitioner filed an appeal in the Court of Appeals for the Ninth Circuit asserting that 1) the trial court failed to properly instruct the jury on her theory of the defense of third party culpability, 2) the district court erred in refusing to grant a safety valve reduction, and 3) the prosecutor's closing argument constituted misconduct.
On January 17, 2007, The Court of Appeals affirmed Petitioner's conviction and sentence. U.S. v. Busane, 218 Fed. Appx. 633 (9th Cir. 2007). The Court of Appeals concluded that the district court properly instructed the jury on all elements of the defense that she lacked the requisite knowledge; and that the district court did not err in refusing to grant a safety valve reduction. The Court of Appeals concluded "even if the prosecutor's closing argument constituted misconduct, which is doubtful, such misconduct didn't deprive Busane of a fair trial and any error was harmless." Id. Petitioner timely filed a petition for a writ of certiorari to the United States Supreme Court.
On May 29. 2007, the United States Supreme Court denied the petition for writ of certiorari.
On July 13, 2007, Petitioner file a timely motion to vacate, set aside or correct under 28 U.S.C. § 2255.
28 U.S.C. §2255 provides:
A prisoner 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. ANALYSIS Petitioner moves the Court to vacate, set aside or correct his sentence on the grounds that she was denied effective assistance of counsel. Petitioner contend that her trial counsel 1) failed to adequately investigate and present a third party culpability defense on her behalf; and 2) failed to adequately explain the advantages and disadvantages of going to trial. Petitioner asserts that her sentence violated the holding of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)and was not reasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
Respondent contends that the record in the case conclusively establishes that counsel for Petitioner effectively investigated and rigorously presented her third party culpability defense. Respondent asserts that Petition has no cognizable ...