The opinion of the court was delivered by: Hayes, Judge
The matters before the Court arethe Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 [Doc. No. 87] and Motion for Default Judgment pro se Petitioner Arturo Torres-Castillo [Doc. No. 105].
In February 2005, Petitioner, a Mexican citizen with a previous deportation from the United States, was found, along with two other individuals, in the trunk of a car at the Otay Mesa Port of Entry into the United States. On October 12, 2005, Petitioner was indicted in a superseding indictment under 8 U.S.C. § 1326 for attempted entry after deportation. [Doc. No. 22.] After a jury trial, Petitioner was found guilty of the charge in the superseding indictment. [Doc. No. 42.] On September 5, 2006, the Court held a sentencing hearing at which the Court found that the total offense level was 22, and Petitioner fell in Criminal History Category VI, for an advisory sentencing guidelines range of 84 to 105 months in custody. (See Tr. Sept. 5, 2006 at 484-85.) The Court sentenced Petitioner to 84 months in custody, to be followed by three years of supervised release. [Doc. No. 61.]
Petitioner appealed. [Doc. No. 62.] In an unpublished memorandum decision dated November 1, 2007, the Ninth Circuit affirmed Petitioner's conviction and sentence. (Resp't Mem. of P. & A., Ex. 3.) On February 15, 2008, the Ninth Circuit denied Petitioner's Petition for Rehearing and Petition for Rehearing En Banc. [Doc. No. 79.]
On May 14, 2009, Petitioner moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 87.] Petitioner filed a separate Memorandum of Fact and Law in support of his Petition on August 13, 2009. [Doc. No. 93.] Petitioner thereafter filed an Amended Memorandum of Points and Authorities on December 21, 2009. [Doc. No. 99.] Respondent filed a Response in Opposition on February 2, 2010. [Doc. No. 101.] Petitioner filed a Traverse on February 22, 2010. [Doc. No. 103.] On March 2, 2010, Petitioner filed the pending Motion for Default Judgment. [Doc. No. 105.]
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). The scope of collateral attack is more limited than on direct appeal. United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
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 basis that he received ineffective assistance of counsel. Specifically, Petitioner offers two grounds in support of his ineffective assistance of counsel claim against trial counsel Bader: (1) counsel was ineffective for failing to look into a 60 month plea offer by the Government and/or advise movant to plead guilty with or without a plea agreement and; and (2) counsel was ineffective for advising Petitioner to proceed to a trial impossible to win. (Pet. Am. Mem. of P. & A. 2.)
"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. "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).
In Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002), the Court of Appeals for the Ninth Circuit stated: "The Sixth Amendment guarantees criminal defendants the constitutional right to be represented by counsel at all critical stages of the prosecution, including the plea proceedings. We have held that the decision to reject a plea bargain offer and plead not guilty is also a vitally important decision and a critical stage at which the right to effective assistance of counsel attaches. Thus, Strickland's two-prong test applies to ineffectiveness claims arising from the plea process." Id. at 879 (quotations and citations omitted). As a result, Petitioner must satisfy the two-prong Strickland standard in order to succeed on his claims that his counsel was ineffective in failing to advise him properly at the plea proceeding.
The record in this case conclusively shows that the Government's plea offer to Petitioner expired on October 11, 2005, two days before Petitioner's third counsel was appointed, and ten days before Bader made her first appearance in the case. (See Tr. October 6, 2005 at 59-60.) Petitioner makes no allegations with respect to the first two attorneys assigned to represent him. Given this evidence that the plea offer was unavailable at the time of the third counsel's appointment, Petitioner cannot satisfy either prong of the Strickland standard with respect to his claim that counsel was ineffective for failing to investigate the offer. "A defendant does not have a constitutional right to a plea bargain." King v. Brown, 8 F.3d 1403, 1408 (9th Cir. 1993) (citation omitted). "The government is under no obligation to reoffer an agreement that was ...