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Canas v. United States

January 5, 2010


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Petitioner Nelson Canas ("Petitioner") is a federal prisoner proceeding pro se and seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). Petitioner contends that his defense attorney, Patience Milrod ("Milrod"), provided ineffective assistance of counsel.


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).*fn1 Pursuant to the plea agreement, Petitioner was informed that the mandatory maximum in this case was life and that the minimum sentence was ten (10) years. Under the plea agreement, Respondent, the United States of America ("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 an offense level of 23 and criminal category of II. The PSIR concluded that pursuant to U.S.S.G. 2D1.1.(b)(6)/5C1.2, Petitioner did not qualify for an adjustment under the safety valve provision because of his prior Driving Under the Influence ("DUI") conviction. The PSIR states that if Petitioner had been eligible for the safety valve reduction, the guideline range for imprisonment could have been 51 to 63 months. 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 Milrod did not make sure that he was eligible for safety valve relief; (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

Petitioner alleges that Milrod provided ineffective assistance of counsel because she did not discover that Petitioner had a prior conviction, which made him ineligible for safety valve relief.

In order to determine whether Milrod provided ineffective assistance of counsel, the court reviewed Milrod's January 26, 2004 declaration ("Milrod 2004 Declaration") filed in support of Petitioner's motion to strike prior, or in the alternative to withdraw plea. Milrod declared that she concluded that Petitioner did not have a prior conviction based on the following efforts: (1) her review of the initial discovery that she received from the Government purporting to set forth Petitioner's criminal history, with Petitioner (See Milrod 2004 Declaration at page 1); (2) her discussions with Petitioner about his rap sheets, including a National Crime Information Center ("NCIC") report, which indicated that Petitioner had a Los Banos drunk driving charge (Id.); (3) Petitioner's representations to Milrod that he had been charged with drunk driving, did not plead guilty, and was supposed to go back to court (Id. at pages 1-2);(4) Milrod's review of the additional discovery that the Government provided to her, including Petitioner's California Law Enforcement Telecommunications Systems ("CLETS") report, which Milrod declares indicated that Petitioner only had an outstanding bench warrant (Id. at page 2); and (5) her reliance on the Government's discovery response that "it does not appear that the defendant has a criminal record." Id.

Milrod further declared "in light of the NCIC reports provided in discovery, my client's understanding that he had not been convicted in Los Banos, the government's statement that my client had no priors, and the subsequently-provided CLETS report, also showing only a bench warrant, I did not do further investigation to verify what seemed to be the undisputed absence of any criminal conviction." Id. at page 2.

The court also reviewed Exhibit 1 to Milrod's 2004 Declaration, which seems to be one of Petitioner's criminal history reports. The report appears on its face to indicate the existence of Petitioner's September 10, 2001 DUI Los Banos conviction. See Milrod Exhibit 1 Bates-Stamped page 25. On May 27, 2009, the court reasoned that if Milrod did not read Petitioner's eight-page criminal history report in its entirety, which indicated on its face that Petitioner had a DUI prior conviction, the failure to read the report would seem to be an "[e]rror that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." See Butcher v. Marquez, 758 F.2d. 373, 376 (9th Cir. 1985).

On May 27, 2009, the court determined that it did not have sufficient information to render a decision regarding Petitioner's ineffective assistance of counsel claim and requested a declaration from Milrod regarding whether she reviewed the report in its entirety and whether her advice would have been different if she had been aware of Petitioner's prior conviction. The court also requested additional briefing from the Government regarding the strength of the Government's case against Petitioner.

On August 4, 2009, Milrod filed a declaration regarding the basis of her advice. On September 4, 2009, the ...

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