The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255
On October 18, 2010, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.§ 2255. On October 26, 2010, petitioner filed a second, identical motion under 28 U.S.C. § 2255. The government filed its opposition on November 29, 2010. Petitioner did not file a reply. The motions are currently before the Court.
On March 31, 2009, the parties filed a binding plea agreement pursuant Fed. R. Crim. Pro. 11(c)(1)(C) in which petitioner agreed to plead guilty to one count of Illegal Alien Found in the United States Following Deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The binding plea agreement provided that petitioner's total offense level was 17, which included a 16-level enhancement for a prior drug trafficking conviction, plus a 4-level reduction for early disposition pursuant to U.S.S.G. § 5K3.1. Specifically, the 16-level enhancement was based on petitioner's prior conviction for Possession for Sale of Cocaine Hydrochloride, in violation of California Penal Code § 11351, and Possession for Sale of Methamphetamine, in violation of California Penal Code § 11378, for which petitioner was sentenced to six years imprisonment and ultimately deported on December 20, 1999. Exhibit A to Opp.
As part of the plea agreement, the parties agreed that petitioner should be sentenced to the low end of the applicable Guidelines range for an offense level 17 and the criminal history category to be determined by the Court.
On May 6, 2009, petitioner pled guilty to the single count information. On October 22, 2009, petitioner, through his prior counsel, filed his sentencing petition, requesting a sentence of 27 months imprisonment, which represented the low end of the Guidelines range for an offense level 17 and a criminal history category of II. On November 3, 2009, the government filed its sentencing position, also recommending a 27-month sentence based upon a total offense level of 17 and criminal history category II. On November 23, 2009, the Court sentenced petitioner to 27 months imprisonment.
In deciding a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, a court must 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; Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989). Furthermore, § 2255 motions based on alleged occurrences outside the record often require an evidentiary hearing. E.g. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). However, when a movant's credibility is at issue, no evidentiary hearing is required if the issue of credibility can be "conclusively decided on the basis of documentary testimony and evidence in the record." United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1989).
B. Ineffective Assistance of Counsel
To the extent petitioner claims ineffective assistance of counsel, petitioner must meet the standard for evaluating a Sixth Amendment ineffective assistance of counsel claim set forth in Strickland v. Washington, 466 U.S. 668 (1984). A lawyer's performance is constitutionally deficient only when it "so undermines the proper functioning of the adversarial process that the [proceedings] cannot be relied upon as hav[ing] produced a just result." Strickland, 466 U.S. at 687. A petitioner claiming ineffective assistance of counsel bears the burden of demonstrating that, under all the circumstances of his case, (1) his counsel's performance was so deficient that it fell below an "objective standard of reasonableness" and (2) his counsel's deficient performance prejudiced him, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir. 1995). Furthermore, "[r]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. 1987).
Petitioner argues that he received ineffective assistance of counsel in violation of the Sixth Amendment and therefore, his sentence should be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. Petitioner lists six reasons in support of his position: (1) his counsel, Jennifer J. Uyeda, "failed to argue for [defendant's] minimum security confinement, drug program and prelease [sic] custody as a result of his status as a deportable alien;" (2) the disparity of sentencing between "american [sic] inmates and aliens" violates the Equal Protection Clause of the Fourteenth Amendment and peitioner's sentence should be "corrected with a two points downward departure from his sentence;" (3) the Sentencing Guidelines were incorrectly applied, resulting in an improper sentence; (4) petitioner's sentence is greater than necessary to "meet the ...