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United States v. Hernandez

January 27, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
LINO HERNANDEZ, MOVANT.



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 (Doc. 343). Pending before the court is movant's motion (Doc. 343 in the criminal docket) and respondent's opposition (Doc. 364 in the criminal docket). Movant has not filed a reply.

I. BACKGROUND

Following a jury trial, movant was convicted on the following counts: 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 6 -- distribution of cocaine. Movant's crime in Count 1 involved sufficient amounts of drugs to trigger a 10-year statutory mandatory minimum sentence. Movant was sentenced to 292 months in prison on Count 1 and 140 months on the remaining counts, to run concurrently.

Movant's conviction was affirmed on direct appeal, see United States v. Hernandez, 139 Fed. Appx. 786 (9th Cir. 2005), but the court remanded under United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005), for the district court to determine whether it would have imposed a materially different sentence had it known that the Sentencing Guidelines were advisory. On remand, the district court determined that movant's sentence would not have been different. Movant appealed and the Ninth Circuit affirmed the sentence. See United States v. Hernandez, 217 Fed. Appx. 666 (9th Cir. 2007). Movant did not seek direct review by the United States Supreme Court. 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.

II. DISCUSSION

In his § 2255 motion, movant claims that counsel was ineffective with respect to:

(1) the government's presentation of evidence to the grand jury; (2) evidence of surveillance of movant and co-defendants; (3) a statement made by movant; and (4) various matters at sentencing. Respondent argues that movant cannot show either deficient performance of trial counsel or prejudice.

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).

A. Presentation of Evidence to Grand Jury

Movant argues:

Denial of effective assistance of counsel, violation of Sixth Amendment Rights Guarantee.

The government violated the process of Investigation and did presented evidence that were not valid. The Government violated the evidence "BEFORE" the processes of Executing the Indictment, ...


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