The opinion of the court was delivered by: Alicemarie H. Stotler U.S. District Judge
ORDER DENYING: (1) PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255, AND (2) REQUEST FOR EVIDENTIARY HEARING
On April 22, 2005, defendant Laureano Barragan Santana ("Petitioner") entered guilty pleas to conspiracy to possess with the intent to distribute 1,800 grams of methamphetamine, in violation of 21 U.S.C. § 846, and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a). On August 1, 2005, Petitioner was sentenced to 120 months imprisonment, to be followed by five years of supervised release.
Petitioner timely appealed his sentence on various grounds, including the district court's: (1) failure to comply with Fed R. Crim. P. 32(i)(3)(B), (2) denial of minor role adjustment and downward departure based on alien status; and (3) imposition of an unreasonable sentence. Petitioner also challenged certain terms of supervised release. In a mandate issued on May 26, 2008, the U.S. Court of Appeals for the Ninth Circuit declined to disturb petitioner's sentence and affirmed the judgment in full. On October 8, 2008, Petitioner's petition for writ of certiorari was denied by the U.S. Supreme Court.
On September 18, 2009, Petitioner filed pro se a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("2255 motion"). On March 2, 2009, the government filed opposition to Petitioner's 2255 motion. On March 29, 2010, Petitioner filed a reply.
By this Order, the Court denies Petitioner's 2255 motion and request for evidentiary hearing.
II. SUMMARY OF PARTIES' CONTENTIONS
Petitioner seeks relief under § 2255 and requests an evidentiary hearing in support of two claims of ineffective assistance of counsel. In his first ineffective assistance claim, Petitioner alleges that counsel forced him to enter a guilty plea "that led to a sentence that was twice the sentence promised by his counsel." (Motion at 6.) Petitioner acknowledges that counsel told him the government offered 10 years in exchange for the guilty plea, and that counsel warned him that if he did not take the plea offer, he would face a sentence of 25 years to life, with a lower sentence of 20 years being "very hard" to get. (Motion at 9.)
Petitioner alleges that counsel told him the 10 year term in the plea agreement was a "mere formality" because counsel "was going to get him a sentence between 48 to 54 months." (Motion at 9-10.) Based on counsel's "offer" of a 48-54 month sentence, compared with the possibility of at least 20 years in prison, Petitioner accepted the plea deal. (Motion at 10.)
Petitioner claims that but for counsel's erroneous promise of a shorter sentence and failure to explain that he would in fact be sentenced to at least 10 years under the plea agreement, he would not have plead guilty. Petitioner points out that when the Court advised him of the 10 year statutory minimum, Petitioner responded, "If that's the case, I will not plead guilty." (Id.) However, after conferring with counsel and allegedly being reassured he would get 4-4.5 years, Petitioner again confirmed his desire to plead guilty. (Id.)
Petitioner argues that although he stated that his plea was free and voluntary and that no promises had been made to him regarding sentence length, it was his counsel who told him what to say and it is "customary" in these proceedings that defendants do not understand what is going on. (Motion at 11.)
In his second ineffective assistance of counsel claim, Petitioner alleges that counsel "abandoned the Motion to Suppress that could have helped [Petitioner] suppress all statements elicited from federal agents after his arrest," which were used to secure his conviction. (Motion at 6.) After Petitioner was taken into custody and invoked his right to counsel, government agent Manna interrogated Petitioner and discovered incriminating facts and information regarding evidence in Petitioner's apartment.
(Motion at 14.) Petitioner alleges that until co-defendant Sosa pled guilty, the government could rely only on the illegally obtained statements. (Motion at 16.) Petitioner argues that if counsel would have insisted that the Court rule on the suppression motion, Petitioner could have intelligently decided whether to try his case with the expectation that the government could use only Sosa's testimony, not the post-arrest statements, during trial. (Id.) Petitioner contends that counsel's decision to forego the suppression motion, as a result of the guilty plea, "was not a tactical decision or the fruit of a reasoned legal strategy." (Motion at 17.)
B. Government's Opposition
The government opposes Petitioner's 2255 motion, arguing first that Petitioner's claims are barred due to procedural default because Petitioner failed to raise the claims in either the district court or on direct review, and he cannot show just cause for the default or resulting actual prejudice. The government points out that Petitioner could have alerted (and had a duty to alert) the Court of counsel's purported sentence promise at his change of plea hearing. (Opp. at 11.) Petitioner also could have alerted the Court during his sentencing hearing. (Id.)
The government argues that, even if the Court considers the merits of Petitioner's claims, they must be denied because counsel's performance was not deficient and it in no way prejudiced Petitioner. Petitioner has not shown a complete ...