The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PETITIONER'S REQUEST FOR RELIEF UNDER 28 U.S.C. § 2255
Pursuant to a plea agreement, on March 20, 2006, Petitioner pled guilty to one count of 21 U.S.C. § 846, conspiracy to distribute methamphetamine, and one count of 18 U.S.C. § 924(c), possession of a firearm in furtherance of drug trafficking. Criminal Docket Doc. Nos. 69, 75. As part of the plea agreement, Petitioner agreed to waive his right to appeal and his right to file a motion under § 2255. See id. at Doc. No. 69. Petitioner was sentenced to 171 months total confinement on November 13, 2006, and judgment and commitment were entered on November 17, 2006. See id. at Doc. Nos. 87, 88. Petitioner filed this 28 U.S.C. § 2255 motion on November 21, 2007, and argues that he received ineffective assistance of counsel when he was advised to plead guilty to possession of a firearm.*fn1 See id. at Doc. No. 96.
Petitioner contends that he received ineffective assistance of counsel when his counsel erroneously advised him that he was guilty of violating 18 U.S.C. § 924(c). It has been held that, under § 924, mere presence of a gun is not sufficient, rather, the evidence must show that the possession of the gun actually furthered drug trafficking. In light of Bailey v. United States, 116 S.Ct. 501 (1995), counsel's advice was incorrect. Bailey held that, to sustain a conviction under the "use" prong of § 924(c), it must be shown that the defendant actively employed the firearm during and in relation to the predicate crime. Petitioner states that the firearm was found underneath the passenger's seat of the truck and that he drove the truck occasionally. Petitioner "argues that, because under Bailey, a § 924(c) conviction requires evidence of active employment of the firearm and no such evidence was ever presented in his case, he [could not] have violated the statute merely by having the gun under the passenger's seat." There was no evidence that the gun was possessed "during and in relation to a drug trafficking offense."
Petitioner argues that counsel's advice to plead guilty was unreasonable because the government's factual recitation at the plea hearing did not establish that he possessed the firearm in furtherance of the drug crime. The record only shows that a drug dealer had a gun underneath the passenger seat of the truck. There was no evidence that the gun was near the drugs or that the gun was accessible during the drug transaction.
Petitioner argues that counsel failed to investigate and demonstrated a lack of diligence. Had counsel known of the lack of evidence to support the § 924(c) conviction, it is reasonably probable that counsel would have changed his recommendation from letting petitioner make his own decision, to attempting to dissuade petitioner from pleading guilty. Petitioner received no sentencing benefit from pleading guilty to the § 924(c) offense. It is reasonably probable that had counsel adequately performed, Petitioner would not have plead guilty as to the § 924(c) offense and would have proceeded to trial.
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." Under § 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); United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). Mere conclusory statements or statements that are inherently incredible in a § 2255 motion are insufficient to require a hearing. United States v. Howard, 381 F.3d 873, 877, 879 (9th Cir. 2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). While a petitioner is not required to allege facts in detail, he "must make factual allegations." Hearst, 638 F.2d at 1194. Accordingly, an evidentiary hearing is required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. Howard, 381 F.3d at 877.
Ineffective Assistance of Counsel
Because claims of ineffective assistance of counsel usually implicate the validity of plea agreements that are secured through the efforts of the allegedly ineffective counsel, those claims are generally not considered waived by plea agreements. See Washington v. Lambert, 422 F.3d 864, 870-71 (9th Cir. 2006); United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). To establish a constitutional violation for the ineffective assistance of counsel, a defendant must demonstrate (1) a deficient performance by counsel, and (2) prejudice to him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). This test applies to challenges to guilty pleas based on ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Jeronimo, 398 F.3d at 1155. To prove a deficient performance of counsel, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985); see also Jeronimo, 398 F.3d at 1155. Courts considering ineffective counsel claims "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; Jeronimo, 398 F.3d at 1155. To show prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A court addressing a claim of ineffective assistance of counsel need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. In the context of a plea bargain, the prejudice requirement is met by showing that, but for counsel's alleged errors, the petitioner would have rejected the plea offer and insisted on going to trial. See Hill, 474 U.S. at 57-59; Womack v. McDaniel, 497 F.3d 998, 1002 (9th Cir. 2007); Weaver v. Palmateer, 455 F.3d 958, 967 (9th Cir. 2006).
"Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691; Sanders v. Ratelle, 21 F.3d 1446, ...