The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255.
On December 29, 2009, Juan Asencion Garcia-Lopez ("Petitioner"), a prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his federal prison sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 24.) On February 16, 2010, Respondent filed a response in opposition. (Doc. No. 29.) On March 29, 2010, Petitioner filed a reply. (Doc. No. 30.) After due consideration, the Court denies Petitioner's motion.
On June 25, 2009, Petitioner pled guilty to a two-count information charging him with a misdemeanor and felony illegal entry in violation of 8 U.S.C. §1325. (Doc. No. 12.) Petitioner pled guilty pursuant to a plea agreement. (Doc. No. 15.) Petitioner reviewed and initialed each page of the plea agreement, signed the last page, underwent a Fed. R. Crim. P. 11 plea colloquy with a magistrate judge, and the district court adopted the plea. (Doc. Nos. 13, 18.) Under the plea agreement, Petitioner waived his right "to appeal or to collaterally attack the guilty plea, conviction, and sentence . . . unless the Court imposes a custodial sentence above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or statutory mandatory minimum term, if applicable." (Doc. No. 15 at 3.) On June 29, 2009, Respondent recommended a sentence of 30 months in accordance with the plea agreement. (Doc. No. 16.) On July 29, 2009, Petitioner recommended a 24 month sentence. (Doc. No. 19.) On July 31, 2009, the Court sentenced Petitioner to 24 months imprisonment. (Doc. No. 22.)
On December 29, 2009, Petitioner requested the Court to vacate, set aside, or correct his federal prison sentence because he allegedly received ineffective assistance of counsel during his sentencing hearing. (Doc. No. 24.) Specifically, Petitioner asserts his counsel was ineffective because he failed to present mitigating evidence regarding Petitioner's poor eyesight. (Doc. No. 24 at 6.) On February 16, 2010, Respondent filed a response in opposition. (Doc. No. 29.) Respondent argues that Petitioner waived his right to bring this motion as part of his plea agreement and that his counsel's performance was not constitutionally ineffective. (Doc. No. 29.) On March 29, 2010, Petitioner filed a reply. (Doc. No. 30.)
A sentencing court may "vacate, set aside or correct the sentence" of a federal prisoner if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a) (2008). Claims for relief under § 2255 must be based on constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or one which is "inconsistent with the rudimentary demands of fair procedure." See United States v. Timmreck, 441 U.S. 780, 783-84 (1979). A district court may deny a § 2255 motion without holding an evidentiary hearing if the record clearly indicates that a petitioner does not have a claim or that a petitioner has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record." United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
The Sixth Amendment guarantees a criminal defendant the right to the "effective assistance of counsel" during sentencing proceedings. Strickland v. Washington, 466 U.S. 668, 686 (1984); Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). To sustain a claim of ineffective assistance of counsel, Petitioner must demonstrate that: (1) his counsel's performance was deficient; and (2) his counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 690-692. A counsel's performance is deficient if it was not "within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56 (1985). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Prejudice may be established if Petitioner shows "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
Here, the Court denies Petitioner's motion because the record directly refutes his claim and his counsel performed effectively. Strickland, 466 U.S. at 686; Quan, 789 F.2d at 715. Contrary to Petitioner's claim, Petitioner's counsel presented an abundance of evidence to the Court regarding Petitioner's poor eyesight. (Doc. No. 28.) Prior to the sentencing hearing, Petitioner's counsel submitted to the Court a letter from Petitioner which stated, "my eyesite [sic] is getting worse . . . my right eye [has] zero visability [sic] and my left [eye] is gradually getting worse." (Doc. No. 20 at 3.) The Court read this letter, and Petitioner's counsel discussed the letter with the Court during the sentencing hearing. (Doc. No. 28 at 3-4.) The Court and Petitioner's counsel also discussed the results of Petitioner's eye surgery. (Id. at 4.) Moreover, Petitioner's counsel explicitly argued Petitioner's eye problems were a "mitigating factor" the Court should consider. (Id. at 8.) Lastly, the Court notes that Petitioner's counsel successfully argued for a 24 month sentence, as opposed to the 30 months recommended by Respondent, and the 46-57 months authorized by the guidelines. (Doc. Nos. 16, 19, 22.) Therefore, the Court concludes Petitioner's counsel performed effectively at the sentencing hearing. Strickland, 466 U.S. at 686; Quan, 789 F.2d at 715. Accordingly, the Court denies Petitioner's motion.
For the reasons stated above, the Court denies Petitioner's motion under 28 U.S.C. 2255. As the Court denies Petitioner's motion on the merits, the Court declines to address Respondent's claim of waiver.
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