FINDINGS AND RECOMMENDATIONS
Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Therein, movant claims that he received ineffective assistance from both his trial and appellate counsel. In opposing the motion for relief, respondent argues that movant's claims are without merit. Movant has filed a traverse.
Having considered all the papers filed by the parties and the record in this action, for the reasons set forth below, the court will recommend that the motion be denied.
On January 25, 2002, a criminal complaint was filed in this court alleging that movant imported and conspired to import controlled substances into the United States and that he laundered money to promote and carry on the importation of those controlled substances in violation of 21 U.S.C. §§ 952, 963 and 18 U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(2)(A).*fn1 (Doc. No. 1.) Movant's initial appearance before the court took place that same day, counsel was appointed to represent him and a preliminary hearing was scheduled for February 8, 2002. (Doc. No. 2.) On February 7, 2002, a federal grand jury for the Eastern District of California indicted movant on those same charges. (Doc. No. 10.) On February 8, 2002, movant was arraigned on that indictment. (Doc. No. 11.)
On May 2, 2002, a superseding indictment was returned, charging movant with conspiracy to distribute heroin and methamphetamine in violation of 21 U.S.C. §§ 841, 846, and conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h).*fn2 (Doc. No. 19.) Movant was arraigned on the superseding indictment on May 21, 2002. (Doc. No. 20.) On September 3, 2002, at movant's request, his appointed counsel was relieved and new counsel was appointed to represent him. (Doc. No. 24.) On September 25, 2003, the government filed an information alleging that movant had suffered a prior felony conviction for a drug related offense. (Doc. No. 36.)
Movant's trial commenced on October 8, 2003. (Doc. No. 48.) On October 23, 2003, a jury found movant guilty on all counts. (Doc. No. 60.) On February 24, 2004, movant appeared before the court and was sentenced to imprisonment in the custody of the U.S. Bureau of Prisons for 240 months.*fn3 (Doc. No. 84.)
Movant filed an appeal from his judgment of conviction in the Ninth Circuit Court of Appeals on February 26, 2004. (Doc. No. 85.) On June 10, 2005, that court affirmed the judgment, but remanded the matter to this court for re-sentencing proceedings consistent with the decision in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), and to consider whether movant's sentence would have been materially different in light of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). (Doc. No. 124.) On January 10, 2006, the assigned district judge affirmed the sentence originally imposed and ruled that his previously issued judgment would remain in effect. (Doc. No. 142.) On January 18, 2006, movant again appealed. (Doc. No. 143.) On December 11, 2006, the Ninth Circuit filed a memorandum decision affirming the district court's judgment and sentence. (Doc. No. 158.)
On February 22, 2008, movant filed on his own behalf a § 2255 motion with this court seeking to vacate, set aside, or correct his sentence. (Doc. No. 162 (hereinafter "Motion").) Respondent filed a response opposing the motion on July 25, 2008. (Doc. No. 173 (hereinafter "Response").) Movant filed a traverse on August 28, 2008. (Doc. No. 177 (herein after "Reply").)
On March 3, 1999, agents for the United States Customs Service arrested Jack Perkett, Frank Sandoval, and Travis Phillips at the Calexico California Port of Entry for attempting to smuggle approximately 2.8 pounds of heroin and 9.4 pounds of methamphetamine across the border in a 1989 Jeep Wagoneer.*fn4 (Reporter's Transcript ("RT") at 53-54, 77-83.) After interviewing Travis Phillips and Jack Perkett, agents learned that the group had intended to transport the drugs to Stockton, California. (Id. at 81-82.)
After the arrests, IRS agents identified approximately 320 money transfers, using either Western Union or MoneyGram, totaling approximately $612,000 from Stockton to a small group of individuals in Mexico. (Id. at 713-15.) Movant was among that small group of individuals, with money transfers to him exceeding $261,000. (Id. at 720.)
At movant's trial, Sandoval testified that on March 2, 1999, Jaime Rios Vizcarra asked him to transport the Jeep Wagoneer to Mexico. (Id. at 195-96.) Jaime Rios Vizcarra then picked Sandoval up in the Wagoneer and the two traveled to Perkett's house, where Perkett and Phillips were waiting. (Id. at 197-99.) Sandoval, Perkett and Phillips then drove the Wagoneer to Mexico. (Id. at 199.)
Upon arriving in Mexicali, Mexico Sandoval took the Wagoneer to movant's home. (Id. at 200.) Movant then dropped Sandoval off at a hotel and kept the vehicle for several hours. (Id. at 201.) Movant eventually returned the Wagoneer to Sandoval, Perkett and Phillips at a McDonald's. (Id. at 202.) Sandoval, Perkett and Phillips departed in the Wagoneer for the border. (Id. at 203.) When the group attempted to cross the border from Mexico into the United States, Sandoval knew there were drugs in the vehicle. (Id.) Sandoval had transported drugs across the border at Jaime Rios Vizcarra's request on three or four prior occasions. (Id. at 205.)
Christina Cloward testified that she was involved in the "day-to-day operations" of "selling drugs" at movant's request. (Id. at 4001-07.) Cloward testified that she wired money to movant in Mexico. (Id. at 413-16.) Veronica LeFebre also testified that she wired money to Mexico at movant's request. (Id. at 537.)
Movant alleges that he received ineffective assistance from his trial counsel. In this regard, he argues that his counsel was ineffective because she failed to object to the introduction of prior testimony by Perkett, after Perkett refused to testify on behalf of the government. (Motion at 19-17.*fn5 ) Movant asserts that his trial counsel was also ineffective for failing to "fully inform" movant that he could have received "a sentence as low as 121 months by simply pleading guilty and demonstrating remorse." (Id. at 23-27.) Movant also argues that his trial counsel was ineffective for failing to object to movant's sentence because that sentence was based "on a multi-object conspiracy," whereas the jury delivered a general verdict that did not specify which offense was the target of the conspiracy. (Id. at 27-30.) Finally, movant argues that his appellate counsel was ineffective for failing to raise a "Lopez" claim on appeal, arguing that a prior conviction used to enhance his sentence was "based on his prior simple possession" which was not a felony under the Controlled Substance Act. (Id. at 30-33.)
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution of laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
In reviewing a motion brought pursuant to § 2255, a federal court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S. C. § 2255. See also United States v. ZunoArce, 339 F.3d 886, 889 (9th Cir. 2003). However, to be entitled to an evidentiary hearing the movant must provide specific factual allegations which, if true, state a claim on which relief under § 2255 could be granted. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003); United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
As noted above, all of movant's claims involve allegations that he recieved ineffective assistance of counsel. Below, the court will address the legal standards governing such claims before turning to each of movant's specific claims.
I. Legal Standards Governing Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)); United States v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996). Thus, under the Sixth Amendment a defendant is entitled to "a reasonably competent attorney, whose advice is within the range of competence demanded of attorneys in criminal cases." United States v. Cronic, 466 U.S. 648, 655 (1984) (internal quotations omitted). The purpose of the effective assistance of counsel guarantee is "to ensure that criminal defendants receive a fair trial." Strickland, 466 U.S. at 689. Toward that end, the Sixth Amendment requires that an accused be assisted by an attorney "'who plays the role necessary to ensure that the trial is fair.'" Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 685).
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, 466 U.S. at 688. Movant must therefore 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.; Wiggins v. Smith, 539 U.S. 510, 521 (2003). "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. See also Williams v. Taylor, 529 U.S. 362, 391 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "'need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness ...