The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL
Before the Court is Wesley Francis Bates' ("Bates" or "Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. § 2255, and Request for Appointment of Counsel. The Court has considered the Motions, Respondent's Response in Opposition, Petitioner's Reply, and all supporting documents submitted by the parties. Having considered these documents, this Court DENIES Bates' Motions and dismisses the case with prejudice.
On May 14, 2003, Petitioner was indicted following a superseding indictment under 21 U.S.C. §§ 841(a)(1) and 841(c)(2), and 18 U.S.C. § 2 for conspiring to aid and abet the manufacture of a controlled substance and to distribute and possess a listed chemical. [Doc. No. 35.] On February 18, 2004, Petitioner pled guilty to Count 1 of the indictment pursuant to a plea agreement. [Doc. No. 64.] Under the terms of the plea agreement, Petitioner pled guilty to conspiracy to distribute and possess listed chemicals (iodine) knowing they would be used to manufacture methamphetamine, an offense that carries a 10-year maximum and no mandatory minimum sentence, in exchange for dismissal of the remaining counts. (Resp't Opp'n, App. at 2.) The plea agreement recommended the following Base Offense Level and Adjustments under the Guidelines: "1) Base Offense Level . . . 28; 2) Upward Departure for Quantity [cf. § 2D1.1 comment (n.16) . . . ; 3) Hazardous Waste [§ 2D1.11(b)(3)] . . . ; 4) Acceptance of Responsibility [§ 3E.1.1(a)] . . . -2." (Id. at 7.) The plea agreement also contained a waiver of "any right to appeal or to collaterally attack the conviction and sentence . . . unless the court imposes a custodial sentence greater than the high end of the guideline range . . . recommended by the Government pursuant to this plea agreement at the time of sentencing." (Id. at 9.)
Sometime around June 2004, Petitioner and his wife absconded from supervision. [See Doc. No. 78.] A bench warrant was issued, and Petitioner was arrested on July 29, 2005. [Doc. No. 91.] Petitioner filed a motion for new counsel, which the Court granted. [Doc. No. 98.] Petitioner thereafter filed motions to withdraw his guilty plea and to dismiss the indictment for lack of jurisdiction, which the Court denied. [Doc. Nos. 102, 103, 125, 131, 153.] On January 12, 2006, the Court sentenced Petitioner to 120 months in custody followed by supervised release for three years. [Doc. No. 162.]
Petitioner appealed. [Doc. No. 169.] The Ninth Circuit affirmed Petitioner's conviction and sentence in an unpublished memorandum decision filed February 22, 2007. [Doc. No. 188; 2007 WL 580679 (9th Cir. Feb. 22, 2007). On June 25, 2007, the Supreme Court denied certiorari. 551 U.S. 1153 (2007).
A sentencing court is authorized to "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). Claims for relief under § 2255 must be based on constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783 (1979). Additionally, the scope of collateral attack is much more limited than on direct appeal. United States v. Addonizio, 442 U.S. 178, 184-85 (1979). Further, if a petitioner has procedurally defaulted by not raising a claim on direct review, he will be barred from raising it on collateral review unless he can meet one of the exceptions excusing procedural default, such as cause and prejudice or a fundamental miscarriage of justice. See Bousley v. United States, 523 U.S. 614, 623-24 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982).
If the record clearly indicates that a petitioner does not have a claim or that a petitioner has asserted "no more than allegations unsupported by the facts or refuted by the record," a district court can deny a § 2255 motion without holding an evidentiary hearing. See United States v. Quan, 789 F.2d 711 (715 (9th Cir. 1986).
Petitioner seeks to have his sentence corrected on the grounds that he had ineffective assistance of counsel, the sentence enhancements applied by the Court are illegal, and the supervised release portion of his sentence is illegal.
I. Ineffective Assistance of Counsel
Petitioner offers three grounds in support of his ineffective assistance of counsel claim: 1) Trial and appellate counsel failed to object to the two-level upward adjustment related to disposal of waste; 2) Trial and appellate counsel failed to object to the two-level adjustment based on the quantity of iodine; 3) Trial and appellate counsel ...