The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING PETITION FOR HABEAS CORPUS UNDER 28 U.S.C. § 2255 (Doc. No. 439.)
On March 21, 2008, a jury found Petitioner Kathryn Hanes ("Petitioner") guilty of conspiracy and four counts of tax evasion. (Doc. No. 341 at 1). Subsequently, this Court sentenced Petitioner to eighteen months on each count, to run concurrently. (Doc. No. 341 at 1.) Pending before the Court is Petitioner's motion to vacate her sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 439). The Court takes the matter under submission and without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the following reasons, the Court DENIES Petitioner's motion.
On March 5, 2004, Petitioner, along with co-defendant Madonna Hanes, was indicted on five counts of conspiracy and tax evasion. (Doc. No. 1). The trial did not start until March 11, 2008, more than four years after Petitioner's indictment. (Doc. No. 234). Shortly thereafter, on March 21st, a jury found her guilty on all five counts of the indictment. (Doc. No. 252.)
On July 6, 2009, Petitioner filed a motion to vacate the judgment and her sentence. (Doc. No. 422.) More than a month later, Petitioner amended that motion. (Doc. No. 439.) In response, the Court set a briefing schedule, giving the Government until November 13, 2009, to respond and Petitioner until December 28, 2009, to file her traverse. (Doc. No. 440.) On November 12, 2009, the Government filed their opposition. (Doc. No. 449.) Petitioner filed a traverse. (Doc. No. 452.)
Under 28 U.S.C. § 2255, a federal sentencing court is authorized to discharge or re-sentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. This statute is intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. See United States v. Addonizio, 442 U.S. 178, 185 (1979); Hernandez v. Campbell, 204 F.3d 861, 864 n.4 (9th Cir. 1999).
The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. See Addonizio, 442 U.S. at 184-85. But this does not encompass all claimed errors in conviction and sentencing. Id. at 187. A mere error of law does not provide a basis for collateral attack unless the claimed error "resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S. 780, 783-84 (1979)).
Petitioner contends that the Government violated the Speedy Trial Act when it failed to bring her to trial by October 3, 2004. (Doc. No. 439 at 2.) Further, she argues that the failure by her court-appointed attorney to file a pre-trial motion to dismiss her case on this ground constitutes ineffective assistance of counsel. Id. As such, she seeks an order vacating judgment and setting aside her sentence pursuant to 28 U.S.C. § 2255. Id.
The Government's response to Petitioner's claim hinges on the strict standards for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 688 (1984). In support of their opposition, the Government also supplied the Court with hearing transcripts in which Petitioner consented, on five different occasions, to defense-requests for continuances. (Doc. No. 449 at 4; Doc. No. 453.)
In Reply, Petitioner claims that the Government has "missed the point" and insists that her attorney Mr. Knut Johnson "intentionally and willfully" failed to file a motion for a violation of the Speedy Trial Act, which would have resulted in a mandatory dismissal of the indictment. (Doc. No. 452 at 1.) The Court strongly disagrees.
In Barker v. Wingo, the Supreme Court set out a four-factor test for determining whether delay between the initiation of criminal proceedings and the beginning of trial violates a defendant's Sixth Amendment right to a speedy trial. Barker, 407 U.S. 514 (1972). The test requires the court to consider the length of the delay, the cause of the delay, the defendant's assertion of her right to a speedy trial, and the presence or absence of prejudice resulting from the delay. Id. at 530-533.
In Petitioner's case, the delay was more than four years. However, the delays were caused almost exclusively by the defense. Petitioner filed countless motions to dismiss, fired several attorneys, and filed one motion to recuse the judge. (See generally Doc. Nos. 10-233). The defense also requested numerous continuances, to which Petitioner consented in open court. (Doc. No. 453.) ...