The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. Pending before the court is movant's motion (Doc. 330 in the criminal docket), respondent's opposition (Doc. 356 in the criminal docket), and movant's traverse (Doc. 358 in the criminal docket).
Following a jury trial, movant was convicted on four counts outlined in a six-count indictment: Count 1 -- conspiracy to manufacture methamphetamine; Count 2 -- conspiracy to possesses a listed chemical with knowledge that it would be used to manufacture methamphetamine; Count 3 -- possession of a listed chemical with knowledge that it would be used to manufacture methamphetamine; and Count 5 -- using, carrying, and possessing a firearm during a drug trafficking offense. Movant's crime in Count 1 involved sufficient amounts of drugs to trigger a 10-year statutory mandatory minimum sentence. Movant was sentenced to the mandatory minimum of 120 months in prison on Count 1, concurrent sentences on Counts 2 and 3, and a mandatory consecutive sentence of 60 months on Count 5. Movant's conviction and sentence were affirmed on direct appeal, see United States v. Hernandez-Munguia, 139 Fed. Appx. 786 (9th Cir. 2005), and the United Supreme Court denied certiorari. The underlying facts of movant's crimes are well-known to the parties and the District Judge and, in any event, are not relevant to movant's instant collateral challenge which raises claims of ineffective assistance of counsel.
In his § 2255 motion, movant claims that counsel was ineffective for failing to argue that Counts 1 and 2 were multiplicitous because the offenses arose out of the same series of events. He also argues that counsel was ineffective for failing to advise him adequately "about the benefits and consequences of going to trial versus pleading guilty without a plea agreement." In response, respondent argues that, even if movant could show that counsel rendered deficient performance, he cannot show prejudice as to either claim.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. To this end, petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. See id. In making this determination, however, there is a strong presumption "that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Second, a petitioner must affirmatively prove prejudice. See Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
In addition to arguing that counsel's performance was not deficient, respondent argues that, even if it was, movant cannot show prejudice. According to respondent, had movant prevailed on his claim that Counts 1 and 2 were duplicitous, either the government would have been forced to drop one of the counts or the court would have been required to sentence on only one of the counts. According to respondent:
. . .Had the government been forced to elect to proceed with Count One but not Count Two, or had the district court decided . . . it should sentence only on Count One, Munguia would still have been sentenced to the statutory mandatory minimum 120 months on Count One, a concurrent sentence on Count Three, and the statutory mandatory consecutive 60 months on Count Five, for the same total 180 months that he now faces. (foot note omitted).
In his traverse, movant concedes that failure to object that Counts 1 and 2 were duplicitous "did not increase the length of his sentence. . . ." He argues that, nonetheless, he was prejudiced because Count 1 carried a potential maximum of life whereas Count 2 only carried a 20-year maximum, and that "[t]he additional conviction could increase future sentences or be used to impeach the petitioner's credibility if he testifies at a future proceeding."
Movant's first argument is unpersuasive given that, regardless of the potential maximum sentences associated with Count 1 and Count 2, the fact remains that movant was sentenced to a fixed term of 120 months. He was not prejudiced by the difference in potential maximums because the maximum sentence was not imposed under either count. As to his argument that the additional conviction could result in an increase to any future sentence which might be imposed based on new crimes, or affect his credibility, movant cites United States v. Jones, 403 F.3d 604 (8th Cir. 2005). In that case, the Eighth Circuit cited Ball v. United States, 470 U.S. 856, 864-65 (1985), and observed that "[t]he additional conviction could increase future sentences or be used to impeach the defendant's credibility if he testifies at a future proceeding." Jones, 403 F.3d at 607. Based on this prejudice, as well as the court's conclusion that counsel's performance was deficient, the Eighth Circuit remanded with instruction to vacate one of Jones' convictions. See id.
The Eighth Circuit's decision in Jones is not binding on this court and is not persuasive. While the issue in Jones was whether Jones had received ineffective assistance of counsel, the court in that case concluded that counsel's performance was deficient and on this basis alone would have remanded to vacate one of the convictions. Therefore, the court's discussion of prejudice was not necessary to the holding and is dictum. As to the citation to the Supreme Court's decision in Ball, the Court's discussion was not in the context of a claim of ...