The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. No. 456]
Petitioner Paul Yates, proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court has considered the motion, Respondent's opposition, Petitioner's traverse, and all additional supporting documents submitted by the parties. For the following reasons, the Court DENIES the motion.
On November 14, 2003, a jury convicted Petitioner on nine counts of mail fraud and six counts of wire fraud. [Doc. No. 270.] On April 28, 2004, the Court sentenced Petitioner under the then mandatory sentencing guidelines to 78 months in the custody of the Bureau of Prisons, to be followed by three years of supervised release.*fn1 [Doc. No. 303, amended by Doc. No. 304.] Petitioner timely filed a Notice of Appeal on May 5, 2004 [Doc. No. 309], and self-surrendered to begin serving his time in custody on July 1, 2004. On November 16, 2004, Petitioner was released on bond pending the outcome of his direct appeal. [Doc. No. 339.] On November 21, 2007, the Ninth Circuit Court of Appeal filed a memorandum order affirming Petitioner's convictions, but remanding for re-sentencing pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), for consideration of whether Petitioner's sentence would have been materially different in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) (holding that the sentencing guidelines are advisory only). [Doc. No. 409.]
On April 14, 2008, the Court again sentenced Petitioner to 78 months in custody. [Doc. No. 416.] The Court found that it would not have imposed a different punishment even if the guidelines had been merely advisory at the time of Petitioner's original sentencing hearing. On April 23, 2008, Petitioner filed a timely Notice of Appeal. [Doc. No. 417.] On July 1, 2008, Petitioner self-surrendered to serve the remainder of his time in custody. [Doc. No. 423.] On July 1, 2009, the Ninth Circuit filed a memorandum order affirming Petitioner's sentence. [Doc. No. 438.]
Petitioner now moves the Court for an order vacating, setting aside, or otherwise correcting his sentence pursuant to 28 U.S.C. § 2255, setting forth multiple grounds for relief. [Doc. No. 456.] Respondent filed an opposition to the motion, and Petitioner filed a traverse. [Doc. Nos. 460 & 463.]
Under Section 2255, a court may grant relief to a federal prisoner who challenges the imposition or length of his incarceration on any of the following four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). However, a Section 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. See Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970) ("[h]aving raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under Section 2255.").
Even when a Section 2255 petitioner has not raised an alleged error at trial or on direct appeal, the petitioner is procedurally barred from raising an issue in a Section 2255 petition if it could have been raised earlier, unless the petitioner can demonstrate both "cause" for the delay and "prejudice" resulting from the alleged error. "To obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982); accord Davis v. United States, 411 U.S. 233, 242 (1973). To show "actual prejudice" a Section 2255 petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
The court may dismiss a Section 2255 petition if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Section 2255 Rules. The court need not hold an evidentiary hearing if the allegations are "palpably incredible" or "patently frivolous," or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a "district court has discretion to deny an evidentiary hearing on a Section 2255 claim where the files and records conclusively show that the movant is not entitled to relief").
Petitioner raises multiple claims, including ineffective assistance of trial and appellate counsel. Respondent argues that certain of Petitioner's claims have been procedurally defaulted because the claims should have been, but were not, raised on direct appeal; certain claims were previously raised on direct appeal, rejected, and are barred; and, that all claims are without merit.
For the following reasons, the Court finds Petitioner's claims to be barred, defaulted, and/or without merit. The Court declines to hold an evidentiary hearing, as the issues can be conclusively decided on the basis of the existing record.
1. "New" Relevant Evidence
Petitioner previously alleged on direct appeal subsequent to re-sentencing that the Court erred by failing to consider "new" evidence relating to his family obligations, conduct, and personal characteristics that arose after his original sentencing. The Ninth Circuit rejected this argument, holding that "[b]ecause the limited Ameline remand requires only that the district court determine what it would have done 'at the time' of the original sentencing, the district court was ...