The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER (1) DENYING PETITIONER'S 28 U.S.C. § 2255 CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND (2) DENYING PETITIONER'S EX PARTE APPLICATION FOR APPOINTMENT OF COUNSEL
This case arises out of petitioner Manuel Cardenas's February 14, 2004 conviction by a jury after trial for possession of pseudoephedrine, knowing, or having reason to believe, that it would be used to manufacture methamphetamine. On May 3, 2004, petitioner was sentenced to 210 months imprisonment and 3 years supervised release. Petitioner timely filed a notice of appeal three days later. On December 23, 2005, the Court of Appeals for the Ninth Circuit affirmed petitioner's conviction, but remanded to the District Court for consideration of resentencing pursuant to U.S. v. Ameline, 409 F. 3d 1073 (9th Cir. 2005).
Petitioner was resentenced on April 3, 2006. The Court orally resentenced petitioner to 168 months imprisonment, but the judgment and commitment order listed petitioner's new sentence as 188 months. Accordingly, petitioner again appealed his sentence on April 12, 2006. The government moved for summary remand to correct the clerical error. On December 1, 2006, the Ninth Circuit reversed the Court's judgment order and remanded. On January 18, 2007, the District Court entered a Second Amended Judgment reducing petitioner's sentence to 168 months.
On September 26, 2007, petitioner filed an "Ex Parte Application Pursuant to U.S.C.A Title 18 §3006A(2)(B) Requesting An Appointment of Counsel to Seek Relief Under U.S.C.A. 28 § 2255" ("Ex Parte Application").*fn1 This document was incorrectly docketed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. On November 7, 2007, petitioner filed a motion ("Motion to Intervene") requesting the Court to intervene to clarify this characterization of his motion as a 28 U.S.C. § 2255 motion.
On July 16, 2008, petitioner filed a "Motion for Leave to Amend/Supplement § 2255 Motion" ("Motion to Amend/Supplement"), in which petitioner seeks leave to amend his Ex Parte Application in order to assert a claim that he received ineffective assistance of counsel at trial. Specifically, petitioner alleges that his counsel failed to move to dismiss the indictment for failure to comply with 18 U.S.C. §3161(b) ("the Speedy Trial Act"), failed to give him adequate advice concerning alternatives to trial, and failed to present the defense of imperfect entrapment at sentencing. The government filed an opposition on November 14, 2008. Petitioner filed a Traverse to Government's Response ("Traverse") on January 28, 2009. After carefully considering the arguments set forth by the parties, the Court finds and concludes as follows.
A petition pursuant to 28 U.S.C. § 2255 ("§ 2255") challenges a federal conviction and/or sentence to confinement where a prisoner claims "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." Sanders v. United States, 373 U.S. 1, 2 (1963).
B. Ineffective Assistance of Counsel
A lawyer's performance is constitutionally deficient under the Sixth Amendment only when it "so undermines the proper functioning of the adversarial process that the [proceedings] cannot be relied upon as hav[ing] produced a just result." Strickland v. Washington, 466 U.S. 668, 687(1984). A petitioner claiming ineffective assistance of counsel bears the burden of demonstrating that, under all the circumstances of his case,
(1) his counsel's performance was so deficient that it fell below an "objective standard of reasonableness" and (2) his counsel's deficient performance prejudiced him, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir. 1995). Furthermore, "[r]review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987).
A. Timeliness of Petitioner's § ...