The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE PURSUANT TO 28 U.S.C. §2255 (Docs. 80 and 81)
On October 3, 2002, Petitioner Marcelone Hughes was indicted on seven counts: (1) armed robbery of a Bank of the West in violation of 18 U.S.C. §2113(a) and (d); (2) brandishing a firearm in connection with the Bank of the West robbery in violation of 18 U.S.C. §924(c)(1); (3) armed robbery of a Golden One Credit Union in violation of 18 U.S.C. §2113(a) and (d); (4) brandishing a firearm in connection with the Golden One Credit Union robbery in violation of 18 U.S.C. §924(c)(1); (5) possessing a semiautomatic assault weapon while being an unlawful user of controlled substances in violation of 18 U.S.C. §922(g)(3); (6) possessing cocaine base in violation of 21 U.S.C. §844(a); and (7) possessing marijuana in violation of 21 U.S.C. §844(a). Doc. 1.*fn1 The factual background of the charges are contested; the court sets out the history for background only and does not necessarily take these facts to be adjudged as true.
On August 13, 2002, Petitioner and an unidentified accomplice robbed a Bank of the West located in Fresno, CA, taking $148,783. Both individuals wore sunglasses and hats and were armed with guns (A.A. Arms Model A-P9, 9mm semiautomatic assault weapon) with which they threatened the tellers. The tellers and customers were then ordered into the vault. Included in the money stolen were specially bundled bait bills with serial numbers which were recorded by the bank. The robbers left in a vehicle which had been reported stolen on August 11, 2002; they abandoned the vehicle after the robbery.
On August 26, 2002, Petitioner and an unidentified accomplice robbed a Golden One Credit Union located in Fresno, CA, taking $5,378. Both individuals wore ski masks and were armed with guns (A.A. Arms Model A-P9) with which they threatened the tellers. At this bank, the tellers present did not have access to the vault. When the tellers did not provide enough money, Petitioner and his accomplice physically struck them. Included in the stolen funds were specially bundled bait bills with serial numbers which were recorded by the bank. The robbers left in a red Jeep Cherokee which had been reported stolen on August 22, 2002; they abandoned the vehicle after the robbery. A witness saw Petitioner and another individual in a red Jeep Cherokee exiting the bank's parking lot approximately four minutes before the robbery.
On August 27, 2002, a police officer stopped Petitioner for speeding. Petitioner did not have a license and was arrested for driving without a valid drivers license. Upon searching the vehicle, the officer found an A.A. Arms Model A-P9 beneath the driver's seat. A search of Petitioner's person revealed marijuana and approximately $400 in cash. Included in the recovered funds was one of the bait bills stolen from Golden One Credit Union. Upon searching Petitioner's apartment, police found rock cocaine and another firearm. The police then received an anonymous tip that Petitioner was involved in the Bank of the West robbery.
Petitioner was represented by Francine Zepeda of the Federal Defender's Office. The Government dismissed Count Six. Doc. 33. A jury trial on the remaining six counts was held July 29-31, 2003. The jury convicted Petitioner on Counts Three, Four, Five, and Seven. Doc. 38. The jury could not come to a unanimous verdict on Counts One and Two and a mistrial was declared for those charges. On November 10, 2003, Petitioner plead guilty to Count One and the Government dismissed Count Two, per the terms of a plea agreement. Doc. 46. Petitioner was sentenced on March 8, 2004. Doc. 54. Petitioner received 135 months imprisonment for Counts One and Three, 120 months for Count Five, and 24 months for Count Seven, all to be served concurrently. Petitioner also received 120 months for Count Four, to be served consecutively, for a total of 255 months imprisonment. Restitution was set at $148,783 to the Bank of the West and $5,378 to Golden One Credit Union for a total amount of $154,161.
Petitioner timely appealed both his convictions and sentences to the Ninth Circuit. Doc. 57. Ms. Zepeda initially represented Petitioner in his appeal, but withdrew and was replaced by Carolyn Phillips. Petitioner's appeal was denied on May 4, 2006; the convictions and sentences were affirmed. Doc. 79. Petitioner sought U.S. Supreme Court review. Writ of certiorari was denied October 2, 2006. Hughes v. United States, 127 S.Ct. 304 (2006). Petitioner's motion for relief under 28 U.S.C. §2255 was timely filed on October 3, 2007. Doc. 80. Petitioner requested permission to refile his motion to include supplemental evidence, and then filed the supplement. Docs. 81 and 82. All of Petitioner's filings thus far will be considered.
Title 28 U.S.C. §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." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). 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 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. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996), citations omitted. 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).
Petitioner seeks habeas relief on four grounds. First, he claims Ms. Zepeda mislead him concerning the sentencing for Count One in light of dismissal for Count Two. Second, Petitioner alleges Ms. Zepeda was ineffective for failing to present an effective defense to Counts Three and Four (the Golden One Credit Union robbery). Third, Petitioner asserts the application of 18 U.S.C. §924(c)(1)(B)(i) for possessing a semiautomatic assault weapon in connection with Count Four was unconstitutional as the issue was ...