FINDINGS AND RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 He seeks post-conviction relief on the grounds that: (1) his trial counsel rendered ineffective assistance; and (2) his Fourth and Fifth Amendment rights were violated during the traffic stop which culminated in his arrest. Movant has also filed a motion to supplement his § 2255 motion to add an additional claim of ineffective assistance of trial and appellate counsel. Upon careful consideration of the record and the applicable law, the court finds that both motions must be denied.
On February 11, 1999, the grand jury returned an indictment charging movant with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On April 1, 1999, movant's attorneys J. Tony Serra, James Bustamante, and Alexandra Clay filed a motion to suppress statements and a motion to suppress evidence obtained as a result of a traffic stop conducted on January 13, 1999, along with a request for an evidentiary hearing on those motions. Answer, Exs. 1, 2. Neither motion was supported by a factual declaration from movant describing movant's version of the events. Id. However, the motions were supported by a declaration from counsel, which stated, in full: "It is my information and belief that the facts and statements set forth in the accompanying document are true and correct to the best of my knowledge and belief." Id.
On April 15, 1999, the government filed an opposition to both motions contending that the factual allegations contained in the motions to suppress were "unsupported" and had no basis in the record. Answer, Ex. 3 at 14, 17, 20. On April 22, 1999, movant filed a reply, Answer, Ex. 4, which included a declaration of counsel that listed the factual issues disputed by movant but did not present movant's own version of the facts. Answer, Ex. 5. Also on April 22, 1999, a superseding indictment was filed charging movant and several co-defendants with conspiracy to manufacture and possess methamphetamine with the intent to distribute, 21 U.S.C. § 846, and possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1).
By order dated May 25, 1999, the district court denied movant's motions to suppress. Answer, Ex. 6. The court also denied movant's request for an evidentiary hearing, finding that counsel's declaration--which was not based on personal knowledge and therefore had little, if any, probative value--was insufficient to warrant a hearing. Answer, Ex. 1 to Ex. 8, at 32-35. On August 5, 1999, movant filed a motion to reconsider both motions to suppress and the request for an evidentiary hearing. Answer, Ex. 7. The motion for reconsideration included a declaration signed by movant, which set forth, in detail, his version of the events at the traffic stop. Id. The district court denied movant's motion for reconsideration by order dated September 3, 1999.
On June 9, 2000, following a jury trial, movant was found guilty on all counts. On September 15, 2000, movant was sentenced to 240 months incarceration. Movant filed a timely appeal of his conviction, and respondent filed a cross-appeal of movant's sentence. In an unpublished disposition, the Ninth Circuit affirmed movant's conviction. United States v. Olivera, 52 Fed.Appx. 364 (9th Cir. 2002). Movant's petition for rehearing was denied on March 4, 2003.
The instant motion, seeking relief pursuant to 28 U.S.C. § 2255, was filed on February 24, 2004.
A. Motions pursuant to 28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides, in part, as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
B. Movant's Claim of Ineffective Assistance of Counsel
To support a claim of ineffective assistance of counsel, a movant seeking relief under § 2255 must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). To this end, movant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. "There is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Second, movant must affirmatively prove prejudice. Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989).
A. Ineffective Assistance of ...