The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
MEMORANDUM DECISION [Civil Case No. 2:08-cv-01097-JKS]
At Docket No. 267, Miguel Prado, appearing pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Prado is currently on supervised release. The United States ("Government") has opposed the motion. Prado has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Initially indicted in January 2002, Prado was tried in this Court on the third superceding indictment in July 2003. That trial ended in a mistrial. A fourth superceding indictment was returned, and Prado was tried a second time in February 2004. This second trial also ended in a mistrial. A fifth superceding indictment was then returned, and Prado was tried for a third time in May 2004. At his third trial, Prado was convicted by a jury of one count of Distribution of Cocaine Base [21 U.S.C. § 841(a)(1)] and one count of Possession with Intent to Distribute Cocaine [21 U.S.C. § 841(a)(1)]. On appeal, the Court of Appeals for the Ninth Circuit affirmed Pardo's conviction but vacated his sentence and remanded for re-sentencing.*fn1 On remand, Prado was sentenced to a prison term of 135 months on each count; followed by 60 months of supervised release on each count, both to be served concurrently.*fn2 Prado timely filed his motion for relief under § 2255 on May 14, 2008.
II. GROUNDS RAISED/DEFENSES
Prado has raised seven grounds for relief: (1) violation of his Sixth
Amendment rights to a speedy trail and effective assistance of
counsel; (2) violation of his Fourth Amendment right to be free of
unreasonable searches and seizures; (3) a Brady violation;*fn3
(4) denial of effective assistance of both trial and
appellate counsel; (5) jury tainted by one juror observing Prado while
shackled and handcuffed; (6) trial court erred by denying Prado's
motion to suppress; (7) the trial court erred in denying pretrial
motions to grant bail, suppress evidence, and directed acquittal. The
Government contends that, except for his ineffective assistance of
counsel and Brady claims, Prado's claims are either not cognizable in
a § 2255 motion, i.e., not subject to a collateral attack, or are
III. STANDARD OF REVIEW 28 U.S.C. § 2255 provides in part:
(a) 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) Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the
court shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto. If
the court finds that the judgment was rendered without jurisdiction,
or that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render
the judgment vulnerable to collateral attack, the court shall vacate
and set the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence as may
appear appropriate. "In determining whether a hearing and findings of
fact and conclusions of law are required, '[t]he standard essentially
is whether the movant has made specific factual allegations that, if
true, state a claim on which relief can be granted.'"*fn4
This Court need not hold an evidentiary hearing if the record
conclusively shows that Prado is either not entitled to relief or if,
in light of the record, his claims are "palpably incredible or
The motion must specify all the grounds for relief available to the movant and the facts supporting each ground.*fn6 If it plainly appears on the face of the motion that the movant is not entitled to relief, a district court must dismiss the motion.*fn7 This Court may dismiss on this basis sua sponte after initial screening and an answer has been ordered and filed.*fn8 As the Supreme Court has stated in the context of the identical rule governing 28 U.S.C. § 2254 cases:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge.
And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date."
Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ...