UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 10, 2010
UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
WESLEY FRANCIS BATES, DEFENDANT/PETITIONER.
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 failed to object to the Court's imposition of supervised release. (Pet'r Mem. of P. & A. 3.)
A. Standard for Ineffective Assistance of Counsel Claims
"It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To succeed on an ineffective assistance of counsel claim, Petitioner must make two showings. First, he must demonstrate that "counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Then, Petitioner must show that his counsel's deficient performance "prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. A court may deny a claim if it determines either counsel's performance was not deficient or that counsel's performance did not prejudice the defense. Id. at 700. Moreover, "[r]review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986) (citations omitted). Further, the Court is cognizant that "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689.
B. Sentence Adjustments
Petitioner alleges that his counsel was ineffective for failing to challenge the Court's imposition of sentence enhancements for disposal of waste and quantity of iodine. (Pet'r Mem. of P. & A. 3-4.) Petitioner is unable to satisfy either prong of the Strickland standard with respect to this claim.
Petitioner has provided no evidence that his counsel's performance was deficient. Petitioner agreed to the sentence enhancements as part of his plea agreement. (Resp't Opp'n, App. at 7.) Further, Petitioner's claim is contradicted by the record. Petitioner's counsel explicitly objected to the imposition of the enhancements in Defendant's Objections to the Presentence Report and Request for Downward Departures, filed with the Court prior to sentencing. (Id. at 41, 49-50.) Given this evidence, Petitioner cannot overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable representation." Ferreira-Alameda, 815 F.2d at 1253.
Further, Petitioner has not demonstrated prejudice. Again, Petitioner agreed to the sentence enhancements, as well as the factual basis underlying them, in his plea agreement.
(Resp't Opp'n, App. at 7.) Because of this, there is no reason to believe that, had Petitioner's counsel objected to the imposition of the enhancements in a different manner, the Court would have sentenced Petitioner any differently.
C. Supervised Release
Petitioner alleges that both his trial and appellate counsel were ineffective for failing to challenge the Court's imposition of a term of supervised release in its sentence. (Pet'r Mem. of P. & A. 3-4.) Petitioner alleges that counsel should have objected because the imposition of supervised release was "clearly illegal, since the Court had already sentenced defendant to the statutory maximum incarceration term of 120 months." (Id.) Petitioner's argument is unavailing, as the Ninth Circuit has clearly rejected this argument. See, e.g., United States v. Liero, 298 F.3d 1175, 1177-78 (9th Cir. 2002) (holding that supervised release is not part of the term of imprisonment, so its imposition does not violate statutory maximum). Because this argument lacks merit, Petitioner is unable to prove that the result of the proceeding would have been different had counsel raised the argument.
Petitioner has not met the Strickland standard for ineffective assistance of counsel claims. Accordingly, the Court DENIES his ineffective assistance of counsel claim.
II. Sentence Enhancements
Petitioner alleges that the sentence enhancements imposed by the Court for disposal of waste and iodine quantity were illegal because they were "not authorized by the judgment of conviction" and "in violation of the Constitution." (Pet'r Mem. of P. & A. 6.)Petitioner claims that he never agreed to these enhancements; however, this assertion is clearly contradicted by the record. The plea agreement explicitly provided that the "parties will jointly recommend" the base offense level and adjustments, which included the enhancements at issue. (See Resp't Opp'n, App. at 7.)Petitioner also admitted to the factual basis supporting the enhancements in the plea agreement. (Id. at 3-4.)
Petitioner alsosuggeststhat the enhancements violated the rule announced in Apprendi v. New Jersey, 530 U.S. 46, 490 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Pet'r Mem. of P. & A. 7.) In Blakely v. Washington, the Supreme Court announced, "[T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. 296, 303 (2004). In the present case, Petitioner admitted the facts that served as the basis for the sentence enhancements. (See Resp't Opp'n, App. at 3-4 ("The amount of iodine involved in the offense . . . was at least 295 pounds. . . . The offense involved the unlawful disposal of hazardous waste. . . .").) Because of Petitioner's factual admissions in the plea agreement, the imposition of the enhancements did not violate Apprendi or Blakely. Therefore, the Court DENIES Petitioner's illegal sentence claim.
III. Supervised Release
Petitioner claims that the Court's imposition of supervised release in addition to the maximum custodial sentence resulted in a sentence in excess of the statutory maximum. (Pet'r Mem. of P. & A. 11.) As discussed above, this argument is unavailing, as it has been expressly rejected by the Ninth Circuit. See Liero, 298 F.3d at 1177-78. Accordingly, the Court DENIES this claim.
IV. Evidentiary Hearing
In the present case, no evidentiary hearing is merited because Petitioner's petition rests on legal arguments that do not require resolution of any factual disputes. In order for Petitioner to qualify for an evidentiary hearing, he must "make specific factual allegations which, if true, would entitle him to relief." Bauman v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Petitioner has not made any new factual allegations or provided new factual evidence to contest his conviction. Therefore, Petitioner is not entitled to an evidentiary hearing.
V. Appointment of Counsel
Petitioner has requested appointment of counsel. [Doc. No. 192.] "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Because the legal issues presented in this petition are not complex, and there is no likelihood of success on the merits, the Court DENIES Petitioner's request for appointment of counsel.
For the foregoing reasons, this Court DENIES the Petition for Writ of Habeas Corpus, DENIES the Request for Appointment of Counsel, and dismisses the action with prejudice.
IT IS SO ORDERED.
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