The opinion of the court was delivered by: Hon. Christina A. Snyder United States District Judge
ORDER DENYING PETITION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
I. INTRODUCTION & BACKGROUND
On October 5, 2009, petitioner Charles Trigilio moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner is currently serving a 96-month sentence following his April 2, 2008 plea of guilty to two violations of 18 U.S.C. § 1343 (wire fraud) and a violation of 18 U.S.C. § 401 (contempt). In his plea agreement, petitioner admitted to using fraudulent misrepresentations regarding his qualifications as an investor to solicit innocent third party victims to invest with him, as part of what they later learned was in fact a Ponzi scheme. Opp'n at 1, Exh. D at 16. Petitioner invested only a portion of the funds he received, incurring approximately $2 million in market losses, and transferred approximately $4 million of the investors' funds into personal or business accounts. Id., Exh. D at 19-20. Petitioner pled guilty pursuant to the plea agreement on April 14, 2008, and acknowledged that he entered his plea of guilty because he was in fact guilty and not because of any coercion of promise outside the agreement. Id. at 2, Exh. E at 25. Petitioner further admitted that his fraudulent conduct violated this Court's order previously entered in Securities Exchange Commissions v. Charles P. Trigilio and Razel Trigilio, Case No. CV 07-6260 (CAS).*fn1 Id. at 1-2, Exh. D at 20. The 96-month sentence imposed by the Court constituted a downward variance from the applicable guideline range of 121 to 151 months, as well as the 121 month sentence recommended by both the government and United States Probation Officer. Id. at 1, Exh. C at 3; Exh. G at 41. The Court also imposed a restitution order of $5,604,451.44, a special assessment of $200, and three years of supervised release under specified conditions. Id. at 7, Exh. G at 42.
Petitioner's motion is based on the theory that he was denied effective assistance of counsel. In particular, petitioner contends that his counsel, DFPD Yasmin Cader, withheld a number of relevant facts during sentencing which, petitioner argues, would have resulted in a lower sentence. Mot. at 5. Such facts identified by petitioner include: (i) he did not recognize any financial gain as a result of the offense; (ii) that his breach of the Court's order was motivated by a need to pay ransom on his life; (iii) his attorney represented his actions to the Court as being motivated by greed; and (iv) that the brokerages used by petitioner failed to implement sufficient asset protections. Id. at 7. The government filed its opposition on February 4, 2010. Petitioner filed his reply on March 2, 2010. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.
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 section 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 section 2255 motion without hearing. Hill v. Lockhart, 474 U.S. 52, 60 (1985).
Petitioner argues that "he has been denied effective assistance of counsel by: defense attorney's withholding of salient 3553 motion information; defense attorney's misrepresentations to the court; and defense attorney's refusal to correct material representations by the prosecution." Mot. at 5 (reverse side). Petitioner contends that the actions of his public defender, which amounted to ineffective assistance of counsel, include the following facts: "(1) I have not recognized any financial gain as a result of my offenses; prosecuting attorneys accused me of using the money to support my lifestyle, when in essence, I have suffered a large financial loss by paying money to clients from my own personal finances . . . (my attorney refused to correct this misconception made to the court by the prosecution); . . . (2) I notified my attorney on several occasions, including the Pre-Sentencing Interview, regarding an individual who put undue pressure upon me, by threatening my life and that of my family if I didn't repay him. . . . My actions to continue to raise funds at this point [in contempt of Court] were a direct result of this threat against my life; . . . (3) despite my suffering a large financial loss, my attorney represented my action to the court as being motived by 'greed' . . . and repeatedly insisted that I use the word 'greed' in my own statement to the court at sentencing; [and] (4) my attorney failed to mention . . . that the brokerages involved, on some occasions, froze client accounts and did not let anyone (including clients) have access to their account . . . [preventing] protection of option strategies [that] could have been implemented to preserve capital." Id.
The government responds by arguing that the Court should deny petitioner's motion because "the facts that petitioner claims should have been presented earlier were in fact presented at sentencing, would have little impact on the sentence, or do not show deficient performance by defense counsel." Opp'n at 8. The government further responds by addressing the four mitigating facts identified ...