FINDINGS AND RECOMMENDATIONS
Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Respondent has opposed the motion. Petitioner has filed a traverse, styled as a "Motion in Opposition to Government's Response."
On August 6, 1999, following a three-day jury trial, movant was found guilty of possession of methamphetamine with intent to distribute (count one) and possession of cocaine with intent to distribute (count two), both in violation of 21 U.S.C. § 841(a)(1). On December 17, 1999, movant was sentenced to 188 months imprisonment on each count, with those sentences to be served concurrently. In addition, a five year term of supervised release was imposed along with the mandatory $100 special assessment on each count. (Doc. No. 151.) Judgment was entered on January 12, 2000. In his § 2255 motion, movant claims that he received ineffective assistance from both his trial and appellate counsel.
Having considered all the papers filed by the parties and the record in this action, for the reasons set forth below, the court will recommend that the motion be denied.
On March 20, 1998, a federal grand jury returned an indictment charging movant with possession of approximately 4.3 kilograms of methamphetamine and possession with the intent to distribute approximately 2.5 kilograms of cocaine. (Doc. No. 1.) On July 20, 1998, counsel on behalf of movant filed a motion to suppress all evidence seized from the rental car movant was driving at the time of his arrest on February 22, 1998. Defense counsel also moved to suppress any statements obtained from movant by law enforcement officers on that date. An evidentiary hearing on the motion was held before U.S. District Judge Garland E. Burrell, Jr. on September 4, 1998.*fn1 At the conclusion of the hearing, the court denied the motion.
A jury trial commenced on December 15, 1998. The jury began deliberation on the fourth day of trial. On December 21, 1998, the jury informed the trial court that they were unable to reach a verdict and a mistrial was declared.
On February 17, 1999, movant's re-trial was commenced.*fn2 After deliberating for approximately a day and a half, the jury notified the court that they were hopelessly deadlocked and that further deliberations would be futile. Accordingly, on February 25, 1999, a mistrial was declared.
On August 3, 1999, movant's third trial on these charges was commenced.*fn3 On August 6, 1999, the jury began its deliberations. Following approximately five hours of deliberations, the jury returned guilty verdicts on both counts. As noted above, movant was sentenced on December 17, 1999, and the judgment was entered on January 12, 2000.
Appealing his conviction, movant argued that the trial court had erred in certain evidentiary rulings at trial, in refusing to compel discovery of unrelated case files that were in the government's possession, and in applying the U.S. Sentencing Guidelines by refusing to grant him a two-level reduction in his adjusted offense level for having played a minor role in the offense. See United States v. Murillo, 255 F.3d 1169, 1172 (9th Cir. 2001).*fn4 Among the evidentiary rulings that movant challenged on appeal was the district court's finding, made in connection with the denial of the motion to suppress evidence, that movant's consent to the search of his rental car was voluntary. See 255 F.3d at 1174-75. On July 6, 2001, the Ninth Circuit affirmed the judgment, concluding that none of the challenged rulings by the district court were either an abuse of discretion or clearly erroneous. 255 F.3d at 1179.
On March 13, 2003, movant timely filed his § 2255 motion to vacate, set aside, or correct his sentence on his won behalf.*fn5
The Ninth Circuit's published opinion affirming movant's judgment of conviction on appeal provides the following summary of the evidence in this case.
Murillo was driving a rental car northbound on Interstate 5 in Colusa County, California, on the morning of February 22, 1998. California Highway Patrol Officer Allen Stallman observed Murillo driving in the right lane following a tractor-trailer rig too closely. Officer Stallman pulled into the fast lane of the divided highway and drove parallel to Murillo's car. Murillo was tightly gripping the steering wheel with both hands and looking straight ahead without acknowledging the presence of the marked police car. Stallman found this behavior unusual and backed off so that he could read the license plate and run a radio check to determine if the car was stolen.
After being notified a short time later by the CHP dispatcher that there were no outstanding wants or warrants on the vehicle, he pulled ahead of the truck, clearing the fast lane so that Murillo could get around the truck. Officer Stallman pulled off on the right-hand shoulder and observed Murillo pass him in the slow lane, still tailgating the truck. He caught up with Murillo and pulled him over with the intention of citing him for following too closely in violation of California Vehicle Code § 21703.
Officer Stallman approached Murillo's car on the right-hand shoulder next to the passenger door. He observed food wrappers on the floor which he believed indicated that the driver was on a long road trip. He asked Murillo to produce his driver's license and the registration for the car. When Murillo handed the officer the paperwork, Officer Stallman noticed that Murillo's hand trembled severely. The officer testified that he used nonconfrontational language and tried to calm Murillo by telling the motorist the reason for the stop, but the defendant's nervousness did not abate.
In examining the vehicle paperwork prior to issuance of the citation, Officer Stallman noted that the rental agreement had been signed at 8:00 p.m. the night before which meant that Murillo had driven most of the night from Santa Ana in southern California to Colusa County in northern California. The rental agreement indicated that the car was to be returned to Santa Ana in just two days. Officer Stallman testified that in his experience and based upon special training he had received in narcotics interdiction, a long distance, quick turnaround trip in a rental car was suspicious.
Officer Stallman explained that he was going to issue a citation. Murillo anxiously acknowledged the violation. The officer testified that the defendant's apparent eagerness to accept the traffic citation - and quickly end his encounter with the officer -suggested to him that more serious criminal activity might be afoot.
While Officer Stallman was issuing the citation, he asked Murillo where he was going. Murillo said he was going to pick up his mother at his aunt's home in Yakima, Washington, but he did not know the address. He could not even describe the location of the residence. Officer Stallman found suspicious the defendant's inability to explain adequately his travel plans.
Because Murillo still seemed exceedingly nervous, the officer asked if he could check his pulse. Defendant consented and the officer determined that his heart was racing at 150 to 160 beats per minute. Officer Stallman testified that Murillo was one of the most nervous drivers he had ever encountered in ten years with the Highway Patrol. After this pulse check, Officer Stallman finished writing the citation and gave the ticket to Murillo to sign.
As a result of what he had observed, Officer Stallman testified that he wondered whether the defendant might be hiding something in the car, so he asked a series of questions to determine whether Murillo was carrying alcohol, weapons, or narcotics. Murillo looked directly at the Officer in denying that his car held alcohol or weapons. He looked down and away when asked about the presence of narcotics in his car. Officer Stallman repeated the same series of questions and Murillo twice gave the same suspicious response by looking away from the officer when asked whether there were drugs in the car.
Officer Stallman asked Murillo for his consent to search the rental car. Using a pre-printed consent to search form written in English and Spanish, Stallman explained the provisions of the form in English since his contact with defendant had confirmed that Murillo was capable of understanding and conversing in English. However, Officer Stallman directed Murillo's attention to the lower half of the consent form written in Spanish to ensure that Murillo knew his rights and what he was signing. Murillo then signed the consent form authorizing the search of his car.
Officer Stallman noticed during the search that two screws on the rear door panel appeared to have been recently removed. The defendant, who had been staring across the freeway during the first portion of the search, turned completely away when Officer Stallman inspected the rear doors of the rental car. By coincidence, a California Highway Parole Canine Unit from the nearby Williams Area Office arrived to back up Officer Stallman. Based upon his observations concerning the screws on the rear door panel, Officer Stallman asked the canine officer to have his dog examine the interior and rear portions of the car. The dog alerted to the presence of narcotics in the right rear door panel both inside and outside the vehicle. At this point, Officer Stallman asked the defendant, who had been standing unfettered about twenty feet away outside the patrol car, to get into the rear of his police car while other officers removed the right rear door panel of the sedan. They discovered several packages of suspected narcotics which later analysis showed were 3.8 kilograms of methamphetamine and 2.5 kilograms of cocaine, valued at over one million dollars. Murillo was then placed in handcuffs and told that he was under arrest.
United States v. Murillo, 255 F.3d at 1172-73.
Movant alleges that he received ineffective assistance from his trial and appellate counsel in three respects. First, he argues that his trial counsel was ineffective during the evidentiary hearing on his motion to suppress evidence because she failed to argue that movant's consent to the search of his car was involuntary due to his limited education. (P. & A. at 7.) In this regard, movant contends that he was 38-years old at the time of his arrest, had only a fifth grade education in Mexico, and was unfamiliar with the criminal process. (Id.) Based on these circumstances, movant argues that his consent to the search of his rental vehicle was involuntary and that the subsequent search was conducted in violation of his Fourth Amendment rights. (Id.) Movant contends that his trial counsel's failure to challenge the voluntariness of his consent and to obtain the suppression of the evidence seized pursuant to that illegal search, constituted ineffective assistance of counsel. (Id. at 8.) In addition, movant argues that his trial counsel's failure to argue that the search of his rental car was illegal under the United States Supreme Court's holding in Knowles v. Iowa, 525 U.S. 113 (1998), constituted ineffective assistance.*fn6
Second, movant claims that his trial counsel was ineffective in failing to challenge the bringing of charges against him in federal rather than state court. (P. & A at 9.) In this regard, movant argues that although the charges involved a "substantial amount of methamphetamine and cocaine," they should have been pursued in a state court prosecution in light of his lack of prior record and the absence of an ongoing federal investigation into his conduct. (Id. at 10.) He also contends that because his vehicle was stopped by a California Highway Patrol officer and he was booked into county jail upon his arrest by the Colusa County narcotics task force officers on state charges, the U.S. District Court lacked jurisdiction over the trial of his case. Accordingly, movant concludes, his trial counsel was ineffective in failing to challenge the federal nature of his prosecution. (Id. at 10-11.)
Third, movant argues that on appeal, his counsel was ineffective by failing to challenge the five year term of supervised release imposed as part of his sentence based on the decision in Jones v. United States, 526 U.S. 227 (1999). (Id. at 12.)*fn7 Movant contends that he should have received a three year term of supervised release, rather than five years because the issue of the quantity of drugs he possessed was not submitted to the petit jury and he was therefore found guilty under 21 U.S.C. § 841(b)(1)(A) rather than 21 U.S.C. § 841(b)(1)(C). (Id.) Although trial counsel objected to the error at sentencing, movant contends that counsel failed to include this issue in the appeal which resulted in a longer term of supervised released being imposed as part of his sentence. (Id. at 14.)
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in ...