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 (Document # 237)
Petitioner Nelson Canas ("Petitioner") is a federal prisoner and proceeds pro se and seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 ("Section 2255"). On September 7, 2003, Petitioner entered into a plea agreement by which he voluntarily agreed to plea guilty to conspiring to manufacture, distribute, and possess with intent to distribute approximately 16,330 pounds of marijuana plants in violation of 21 U.S.C. § 846 and § 841 (a)(1).
This court has reviewed the record and does not believe that it has sufficient information to render a decision at this time regarding Petitioner's habeas petition. Accordingly, the court will not decide the petition until it receives a declaration from attorney Patience Milrod ("Milrod") and additional briefing from the Respondent United States of America ("Government") regarding Petitioner's ineffective assistance of counsel claim.
Pursuant to the plea agreement, Petitioner recognized that the mandatory maximum in this case was life and that the minimum sentence was ten (10) years. Under the plea agreement, the Government agreed to recommend sentencing at the bottom of the guideline range and for Petitioner to receive a three-level reduction in the offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. The Government agreed to recommend that the Petitioner receive a four-level reduction for a minimal role under U.S.S.G. § 3B1.2(A). Lastly, the Government agreed to recommend that "defendant receive a two-level reduction in the offense level under the safety valve provision, if he qualifies pursuant to the terms stated in U.S.S.G. § 5C1.2." See Plea Agreement at page 5.
On June 21, 2004, this court conducted a sentencing hearing at which Petitioner acknowledged that he had a chance to review the Pre-Sentence Investigation Report ("PSIR") with Milrod. The PSIR reflected the 23 offense level and criminal category II. The PSIR concluded that pursuant to U.S.S.G. 2D1.1.(b)(6)/5C1.2, the Petitioner did not qualify for an adjustment under the safety valve provision because of his prior Driving Under the Influence ("DUI") conviction.*fn1 The court sentenced Petitioner to 120 months imprisonment.
On May 10, 2005, Petition filed a notice of appeal. On December 29, 2006, the Court of Appeals dismissed Petitioner's appeal for lack of jurisdiction.
On April 26, 2007, Petitioner timely filed the instant Section 2255 petition. Petitioner alleges four grounds for habeas relief : (1) Ineffective assistance of counsel because his attorney, Milrod, did not make sure that he was eligible for safety valve relief (i.e. by discovering Petitioner's prior DUI conviction); (2) Inadequate Rule 11 plea hearing because the court did not advise him that he would not be allowed to withdraw his plea and because the plea agreement itself was not read in court on the record; (3) The district court abused its discretion in denying Petitioner's motion to withdraw his plea; and (4) The overcrowded prison conditions are violating his Eighth Amendment rights.*fn2
Under the standard set by Strickland v. Washington, 466 U.S. 668, 690-692 (1984), a petitioner claiming ineffective assistance of counsel must demonstrate that: "(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense." Id.
The court has reviewed Milrod's declaration and attached Exhibits 1and 2 (i.e. Petitioner's rap sheets), which she filed on January 26, 2004 in support of Petitioner's motion to strike prior, or in the alternative to withdraw plea and has determined that issues exist regarding Petitioner's ineffective assistance of counsel claim with respect to both Strickland prongs.
I. Deficient Performance Prong
Milrod declares that she reviewed the initial discovery that she received from the government purporting to set forth Petitioner's criminal history with Petitioner. See Milrod Declaration ("Milrod Dec.") at page 1. Milrod declares that true and correct copies of these discovery documents, Bates-Stamped pages 19-26 are attached as Exhibit 1 to her declaration. See Milrod Dec. at page 1. Exhibit 1 appears to be Petitioner's National Crime Information Center ("NCIC") report. Milrod declares that based on ...