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
(Documents No. 37 and No. 38)
Petitioner Ramon Pina-Labrada ("Petitioner") seeks relief under 28 U.S.C. § 2255 ("Section 2255")*fn1 from the sentence of forty-six months that was imposed by this court on September 2, 2008 following Petitioner's entry of a plea of guilty to one count of assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3).
FACTUAL AND PROCEDURAL HISTORY
Petitioner was convicted by a plea of guilty on September 2, 2008, to one count of assault with a dangerous weapon. On July 11, 2007, Petitioner was an inmate at the United States Penitentiary-Atwater ("USP-Atwater") and struck a fellow inmate in the head and body with a pad lock. Petitioner was serving a forty-eight month sentence at USP-Atwater for a December 13, 2004 conviction for illegal re-entry, which arose out of the United States District Court for the Western District of Texas. Petitioner's release date from USP-Atwater was scheduled for January 25, 2008. On January 25, 2008, Petitioner was arrested for the July 11, 2007 offense.
The Presentence Investigation Report ("Presentence Report") that was prepared for Petitioner's sentencing hearing calculated a base offense level of fourteen. The base level was increased by four levels because a dangerous weapon was used. An additional three levels were added because a bodily injury was incurred by the victim and four levels were deducted because there was victim provocation. An additional three levels were deducted for acceptance of responsibility. The final offense level was calculated to be eighteen, with a criminal history category of VI. Based on the 2007 edition of the Guidelines Manual, the guideline range for an offense level of eighteen and a criminal history of VI was fifty-seven to seventy-one months. On September 2, 2008, Petitioner was sentenced to forty-six months.
On November 17, 2008, Petitioner filed a motion for his sentencing transcripts because he alleged that the records would reveal that he was sentenced to forty-six months with credit for good time. On December 19, 2008, this court denied Petitioner's request because the court indicated that it lacked jurisdiction to order credit for good time at sentencing, and therefore, the sentencing transcripts would not be of assistance to Petitioner on this issue.
On January 15, 2009, Petitioner filed an In Forma Pauperis application. On January 20, 2009, Petitioner timely filed his petition for a writ of habeas corpus pursuant to Section 2255.
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 ...