The opinion of the court was delivered by: Hon. Christina A. Snyder United States District Judge
ORDER DENYING PETITION FOR HABEAS CORPUS RELIEF
I. INTRODUCTION & BACKGROUND
On June 11, 2007, petitioner Jeffrey Goodin was sentenced to a total of 70 months of imprisonment for violations of 18 U.S.C. § 1324 (wire fraud); 18 U.S.C. § 1037(a)(3), (b)(1)(A)(4) (knowing and material falsification of email headers); 18 U.S.C. § 1029(a)(2) (aiding and abetting use of unauthorized access devices); 18 U.S.C. § 1029(a)(3) (possession of unauthorized access devices); 18 U.S.C. § 1028A(a)(1) (identify theft); 18 U.S.C. § 2320 (use of counterfeit mark); 18 U.S.C. § 1512(d)(1) (witness harassment); and 18 U.S.C. § 3146(a), (b)(1)(A)(iii) (failure to appear).
Petitioner violated federal law when he sent Internet Service Provider ("ISP") America Online ("AOL") users unsolicited e-mails that falsely purported to be from the AOL Billing Department and prompted them to update their personal and credit or debit card information. Petitioner sent these spam e-mails from fraudulently created e-mail accounts from ISP Earthlink. The spam e-mails contained weblinks to phony AOL webpages, where users would input their personal and financial information. Petitioner embedded a computer code in the phony AOL webpages directing the information inputted by the AOL users to e-mail accounts controlled by petitioner.
Petitioner appealed from the judgment of the conviction to the Ninth Circuit and the sentence was affirmed on December 17, 2008. Mot. at 3.
On August 11, 2009, petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of counsel. Id. at 5. Respondent United States ("government") filed its answer on February 25, 2010. Petitioner's motion is presently before the Court.
A petition pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "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." Sanders v. United States, 373 U.S. 1, 2 (1963).
Ineffective assistance of counsel constitutes a violation of the Sixth Amendment right to counsel, and thus, if established, is grounds for relief under § 2255. To establish ineffective assistance of counsel, a petitioner must prove by a preponderance of the evidence: (1) the assistance provided by counsel fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A claim of ineffective assistance of counsel fails if either prong of the test is not satisfied and petitioner has the burden of establishing both prongs. Id. at 697; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
With respect to the first prong, the court's review of the reasonableness of counsel's performance is "highly deferential," and there is a "strong presumption" that counsel exercised reasonable professional judgment. Id. The petitioner must "surmount the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.
After establishing an error by counsel and thus satisfying the first prong, a petitioner must satisfy the second prong by demonstrating that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that there is a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. Strickland at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
The Court need not necessarily determine whether petitioner has satisfied the first prong before considering the second. The Supreme Court has held that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Id. at 670. Indeed, a petitioner's failure to allege the kind of prejudice necessary to satisfy the second prong is sufficient by itself to justify a denial of a petitioner's § 2255 motion without hearing. Hill v. Lockhart, 474 U.S. 52, 60 (1985).
Petitioner claims that his trial counsel provided ineffective assistance by (1) failing to object at trial to a jury instruction defining "commercial e-mail;" (2) failing to object at sentencing on causation grounds to inclusion of the cost of Earthlink's servers in the loss amount; and (3) failing to object at sentencing on causation grounds to inclusion of the cost of ...