The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to vacate, correct or set aside sentence pursuant to 28 U.S.C. Section 2255 filed by Defendant Melissa Resendez-Ceballos. (Doc. # 59).
On December 18, 2005, Defendant was detained at the Port of Entry at San Ysidro, California after a narcotics detector dog alerted to the vehicle she was driving. Subsequent investigation revealed packaging containing 9.19 kilograms of cocaine and 3.73 kilograms of methamphetamine concealed in a non-factory compartment installed in the vehicle. The drugs were concealed behind the rear seat of the vehicle and surrounded by laundry soap emitting a powerful odor, which was out of place and aroused suspicion. Defendant gave inconsistent statements regarding the ownership of the car at primary and secondary.
On January 11, 2006, Defendant was charged in a two count indictment with importation of approximately 10 kilograms of cocaine and 3.73 kilograms of methamphetamine in violation of 21 U.S.C. §§ 952 and 960 and possession with intent to distribute approximately 10 kilograms of cocaine and 3.73 kilograms of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The charges in the indictment carried a minimum mandatory sentence of ten years and a maximum sentence of life imprisonment. The guideline sentencing range applicable to the quantities of narcotics charged in the indictment resulted in a base offense level of 38 and a guideline range of 235-293 months imprisonment.
Prior to trial, the Assistant United States Attorney ("AUSA") offered the Defendant, through her counsel, a proposed negotiated disposition. The AUSA proposed that the Defendant would receive a fixed term of imprisonment of 48 months under Fed. R. Crim. P. 11(c)(1)(C) in exchange for her plea of guilty. Defendant rejected the plea offer.
On October 3, 2009, trial commenced. The government presented witnesses and exhibits. Defendant testified in her case that a friend had asked her to drive the vehicle across the border and that she did not know that there were drugs in the vehicle.
On October 4, 2006, the jury deliberated for approximately two hours and returned a verdict of guilty on both counts in the indictment.
On December 21, 2006, the Court held a sentencing hearing. The Court found that the base offense level was 38 under U.S.S.G. § 2D1.1(c)(1), and denied an adjustment for minor role under United States Sentencing Guidelines § 3B1.2. The Court found that safety valve did not apply. With a total offense level of 38 and Criminal History Category of I, the advisory sentencing guideline range was 235-293 months. The Court sentenced the Defendant to serve a period of 168 months imprisonment on each count to run concurrently. After full consideration of all factors set forth in 18 U.S.C. § 3553, the Court found that 168 months was a reasonable sentence.
Defendant filed an appeal in the Court of Appeals for the Ninth Circuit asserting that the prosecutor's closing argument constituted misconduct.
On October 24, 2007, the Court of Appeals affirmed the judgment of the district court. On April 20, 2009, Defendant filed a motion to vacate, set aside or correct under 28 U.S.C. § 2255 on the grounds that she was deprived of the effective assistance of counsel during plea negotiations.*fn1 Defendant asserted that Defense counsel misadvised her of the risks and benefits of proceeding to trial and threatened to withdraw as her counsel if she accepted the plea. Defendant asserted that she was prepared to accept a plea offer of 48 months and that she declined the offer based upon the misadvice and coercion of her Defense counsel.
In her Section 2255 motion, Defendant stated, under penalty of perjury, that she was prepared to accept the plea offer if her counsel advised her to do so, and declined the offer as a result of her discussions with counsel. Defendant stated that her counsel disparaged the benefits of the plea offer, stating that he was "obligated to show it to [her]" and it was a mere "crust of bread." (Doc. # 59 at 12). Defendant stated that her counsel repeatedly assured her that she would win at trial describing the case as a "slam dunk"; a "sure thing"; and the plea offer of 48 months as "ridiculous." Id. at 13. Defendant stated that Defense counsel told her that the plea offer contemplated a debrief pursuant to the "safety valve" and stated that "if they don't believe what you say, you will get more time than ever." Id. at 12. Defense counsel told the Defendant "I don't represent rats" and "if you want to do this, you'll have to get a new lawyer." Id. Defendant stated that her counsel never informed her that she would be eligible for appointment of a replacement counsel. Defendant stated that she believed she would be "without any lawyer" if she accepted the plea offer and cooperated with the government or that her counsel's representation would be grudging and not in her interest. Id.
Defendant stated in the Section 2255 motion that her counsel told her that "the most" time she would serve in prison even if she lost her case at trial was ten years. Id. at 14. Defendant stated in the Section 2255 motion that "[Defense counsel] did not review with her the level 38 Guidelines exposure, nor explain to her the possibility that her denial at trial of all criminality might lead (as it did) to the Court's refusal to award her role-reduction, and therefore a lesser sentence." Id.
On April 24, 2009, this Court filed a scheduling order which required that the Plaintiff United States file a response including "all pertinent documents, orders and transcripts relevant to this motion." (Doc. # 60).
On May 29, 2009, Plaintiff United States filed a memorandum in opposition to Defendant's Section 2255 motion. (Doc. # 61). Plaintiff's memorandum stated in part: "[t]his opposition is based upon the attached memorandum of points and authorities, the files and records of this case, and any evidence or argument that may be presented at any hearing on this matter." Id. at 1.Plaintiff United States submitted no evidence to supplement the record. Plaintiff United States asserted that Defendant's conclusory allegations regarding Defense counsel are contradicted by the law and the record of this case and that the motion to vacate should be denied without a hearing.
On July 9, 2009, after reviewing the record, the Court filed an order stating in part: When considering a § 2255 petition, the district court shall hold an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. §2255(b). The Court has reviewed the pleadings and will require the parties to file any and all relevant evidence in the form of declarations and exhibits prior to determining whether an evidentiary hearing is required to resolve the claim of ineffective assistance of counsel.
IT IS HEREBY ORDERED that
1) Defendant shall file any and all relevant evidence in the form of declarations and exhibits in support of the motion to vacate by August 17, 2009 and
2) the United States shall file any and all relevant evidence in the form of declarations and exhibits in opposition to the motion to vacate by ...