The opinion of the court was delivered by: Anthony W. Ishii United States District Judge
ORDER DENYING PETITIONER'S MOTION TO CORRECT, AMEND OR VACATE HIS SENTENCE AND CLOSING THE CASE (28 U.S.C. § 2255)
In this case, petitioner Jesus Cordova Barajas ("Petitioner") seeks relief under 28 U.S.C. section*fn1 2255 from the sentence of 210 months that was imposed by this court on December 18, 2002, following conviction by jury trial to one count of manufacture/cultivation of more than 1,000 marijuana plants and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was arrested on the morning of September 21, 2001, as he emerged from a tarp-covered shelter located next to a large marijuana patch in an isolated location in the Stanislaus National Forest. According to the Presentence Investigation Report ("PIR") that was prepared following the trial, a loaded semi-automatic rifle containing 30 rounds of ammunition was found in the shelter where Petitioner was sleeping. The PIR also states that a total of 7,018 marijuana plant were recovered from the two gardens associated with the encampment where Petitioner was found. The plants, minus stems and stalks, had an actual weight of 2,910 pounds or approximately 1,320 kilograms.
Following jury trial, Petitioner was found guilty of one count of manufacture/cultivation of more than 1,000 marijuana plants. The jury made a separate finding that the allegation of 1,000 or more marijuana plants was proven. Petitioner was found not guilty of possession of a firearm during and in relation to a drug offense.
The PIR calculated a base offense level pursuant to USSG 2D1.1 of 32 based on a weight of marijuana greater than 1,000 Kg. and less than 3,000 Kg. Two levels were added pursuant to USSG 2d1.1(b)(1) for possession of a dangerous weapon. Two additional levels were added pursuant to USSG 3C1.1 for obstruction based on testimony given during trial by Petitioner that was found to be false. No adjustments were made for Petitioner's role in the enterprise nor was there any reduction for acceptance of responsibility. Based on a total calculated offense level of 36 and a criminal history of II, Petitioner was sentenced at the bottom of the guideline range of 210 to 262 months.
Petitioner filed a notice of appeal on December 23, 2002. The Ninth Circuit Court of Appeal affirmed Petitioner's conviction and sentence on March 9, 2004. The instant motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C., section 2255 was timely filed on March 7, 2005.
Section 2255 provides, in pertinent 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 ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 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). The court may deny a hearing if the movant'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. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotations omitted), cert. denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981).
Petitioner alleges four grounds for habeas relief. First, Petitioner alleges the base offense level was incorrectly calculated because the base level of 32 is not based on an amount of marijuana found by the jury or that could be calculated according to the applicable guideline standards based on the jury verdict. Second, Petitioner claims the jury's verdict form and the jury instruction omitted any reference to aiding and abetting. Petitioner contends that as a consequence, he sentence should be vacated because there is not a correspondence between the indictment and the jury's verdict. Third, Petitioner alleges he suffered ineffective assistance of counsel when his attorney failed to challenge the Government's estimates of quantity of marijuana and request a corresponding adjustment in the base offense level computation. Petitioner also alleges he suffered ineffective assistance of counsel when his attorney failed to object to the two-level enhancement for the firearm. Petitioner also contends he suffered ineffective assistance of counsel because his attorney failed to raise the aforementioned issues on appeal. Fourth, Petitioner contends he should receive a downward departure because there was insufficient evidence to support his conviction.
A petitioner moving pursuant to section 2255 "procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default. [Citation.]" United States v. Ratigan, 351 F.3d 957, 962 (9 Cir. 2003). "'If a criminal defendant could have raised a claim of error on direct appeal but nevertheless failed to do so, he must demonstrate both cause excusing his procedural default, and actual prejudice resulting from the claim of error.' [Citation.]" United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003). "Generally, to demonstrate 'cause' for ...