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 #48)
Petitioner Elizabeth Gutierrez ("Petitioner") seeks relief under 28 U.S.C. § 2255 ("Section 2255")*fn1 from the sentence of thirty-six months that was imposed by this court on April 6, 2009, following Petitioner's entry of a plea of guilty to one count of using a communication facility to facilitate the commission of a felony in violation of 21 U.S.C. § 843(b).
FACTUAL AND PROCEDURAL HISTORY
Petitioner was convicted by a plea of guilty on October 27, 2008, to one count of using a communication facility to facilitate the commission of a felony. The Presentence Investigation Report ("Presentence Report") that was prepared for Petitioner's sentencing hearing calculated a base offense level of thirty-four because 350.4 grams of actual methamphetamine were involved in the offense. The base level was reduced by three levels because of Petitioner's role as a minor participant, three points were deducted for a mitigating role adjustment, and three points were deducted for Petitioner's acceptance of responsibility. The final offense level was calculated to be twenty-five, with a criminal history category of I. Based on the 2007 edition of the Guidelines Manual, the guideline range for an offense level of twenty-five and a criminal history of I was fifty-seven to seventy-one months. However, because the statutorily authorized maximum sentence of forty-eight months was less than the low-end of the guideline range, the guideline sentence became forty-eight months. On April 6, 2009, Petitioner was sentenced to thirty-six months.
Petitioner's petition for a writ of habeas corpus pursuant to Section 2255 was timely filed on April 22, 2009.
Section 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 section 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 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) (internal quotations omitted), cert. denied, 520 U.S. 1269 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations, which if true, would entitle him to relief. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981).
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.
United States v. Cochrane, 985 F.2d 1027, 1030 (9th Cir. 1993). To prove deficient performance of counsel, Petitioner must demonstrate that her 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). Courts considering ineffective assistance of counsel claims "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984); United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). To show prejudice, 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 v. Lockhart, 474 U.S. 52, 57-59; Womack v. McDaniel, 497 F.3d 998, 1002 (9th Cir. 2007).
I. Counsel's Advice to Plead Guilty Given the Evidence Was Not Ineffective
Petitioner alleges that she received ineffective assistance of counsel because her counsel advised her to plead guilty even though she alleges that there was no evidence that she committed the crime (i.e. she was not present at the time and location of the crime, which she alleges was committed by her co-defendant, Maria Del Carmen Morales ("Morales")). Petitioner cannot demonstrate ineffective assistance of counsel because Petitioner fails to successfully contravene or object to the allegations contained in the Presentence Report. The Presentence Report reveals that Petitioner waived her Miranda rights and admitted to the authorities that she met with the undercover agent and took him to the house where the drug transaction was to occur for the purpose of letting the undercover agent view the available narcotics for sale.
Here, Petitioner has provided only conclusory assertions that she was not present at the time and location of the crime committed. Moreover, Petitioner admits in her Formal Objections to the Presentence Report that she knew Morales was involved in a drug transaction with certain "friends" (i.e. the undercover agents) and that Petitioner approached the "friends" and told them to follow her to the house where Morales was located. See Petitioner's February 17, 2009 Formal Objections at pages 2-3. Petitioner asserts that she was arrested shortly thereafter and "when interviewed by the agents she admitted what they already knew she had done." See Petitioner's February 17, 2009 Formal Objections at page 3. Therefore, based on Petitioner's own admissions, it appears that Petitioner was in fact present at the time and location of the crime as she is the one that led the undercover agent to the house where the narcotic transaction ...