The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. 99], [DOC. 128], AND CERTIFICATE MOTION TO AMEND ISSUES OF APPEALABILITY
On November 14, 2008, Petitioner Noe Orgaz-Vega ("Petitioner"), a federal prisoner proceeding pro se, commenced this Section 2255 habeas corpus proceeding. On July 7, 2009, Respondent United States of America ("Respondent") filed its opposition. After numerous extensions of time, on May 24, 2010, Petitioner filed his response. Along with the response, Petitioner also filed a motion to amend the issues presented in the petition (Doc. 128).
The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1 (d.1). For the reasons stated below, the Court DENIES the petition (Doc. 99), and DENIES the motion to amend (Doc. 128).
On November 12, 2004, at approximately 7:30 p.m., a seismic sensor alarm was set off at the United States-Mexico border in the area of Andrade, California. (Doc. 31.*fn1 ) In response, Border Patrol agents stationed themselves on a road approximately one mile north of the sensor. They waited there until approximately 7:45 p.m., at which time they observed two vehicles approaching from the south. Following a short chase, the agents apprehended the 36 occupants of the two vehicles, including Petitioner.
Petitioner was charged with and convicted of Re-entry after Deportation in violation of 8 U.S.C. § 1326. (See Doc. 4 (indictment); Doc. 68 (verdict); Doc. 76 (judgment).) On November 14, 2008, Petitioner filed his motion to vacate based on the claim that he was denied effective assistance of counsel in violation of his Sixth Amendment rights (the "Petition"). On July 7, 2009, Respondent filed its opposition, and on May 24, 2010, Petitioner filed his response and motion to amend the issues presented.
To prevail on an ineffective assistance of counsel claim, Petitioner must prove that his defense was prejudiced by his attorney's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner bears the burden of establishing both elements: his attorney's deficient performance, and prejudice. U.S. v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
Given the "distorting effects of hindsight," in evaluating an ineffective assistance of counsel claim, courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Petitioner may establish prejudice only by demonstrating a reasonable probability that but for his attorney's error, the outcome of his trial would have been different. Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
Petitioner advances two theories in support of his ineffective assistance of counsel claim: (1) that his counsel failed to raise a defense of United States citizenship prior to trial; and (2) that counsel failed to adequately raise a defense of "official restraint." Respondent contends that neither claim has merit. For the following reasons, the Court agrees.
A. Petitioner's Alienage was Effectively Litigated
Petitioner alleges that his counsel was ineffective because his defense of citizenship was raised during, but not prior to, trial. This claim, however, is inaccurate. Petitioner's counsel filed a pre-trial motion under § 1326(d) challenging the validity of Petitioner's deportation. (See Mt. in Limine [Doc. 25]; see also Memo of Ps & As [Doc. 26], 25:20-28:23.)
Additionally, on November 30, 2004, over a year before trial, a detention hearing was held to determine the history and characteristics of the Petitioner. After the presentation of evidence as to Petitioner's citizenship, the Magistrate Judge determined Petitioner to be a citizen of Mexico and that he was "[p]reviously deported from the United States and has no legal right to remain or work in the United States." (Doc. 5 at 2.)
Furthermore, the trial transcript confirms that Petitioner's counsel called witnesses who testified that Petitioner was born in the U.S. (See e.g. 4/12/06 Trial Transcript, Vol. II [Doc. 86], 163:7--166:17; 189:17--190:10; 199:22--202:4.) ...