The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING § 2255 MOTION
Mario Esparza-Cruz pleaded guilty to importing methamphetamine, and the Court sentenced him to 75 months' imprisonment, followed by five years' supervised release. Esparza-Cruz then took an appeal, which was unsuccessful. On May 12, 2011, he filed a motion raising an issue not raised on appeal, i.e., that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The motion did not explain under what provision of law it was being brought, and was accepted by a discrepancy order that directed the clerk to docket it as a motion under 28 U.S.C. § 2255.
The Court then on May 13 issued an order giving the warning required in Castro v. United States, 540 U.S. 375, 382--83 (2003). That order gave Esparza-Cruz the option of withdrawing his motion, filing an amended motion containing all § 2255 claims he believed he had. Petitioner has now filed his amended § 2255 motion (Docket no. 49, the "Motion"). No response from the government is required, because it is clear Esparza-Cruz is not entitled to relief. § 2255(b). Among other problems, most of Esparza-Cruz's claims are procedurally defaulted because he could have raised them on direct appeal, but failed to do so, and has not shown cause and prejudice. See Massaro v. United States, 538 U.S. 500, 504 (2003) (giving general rule concerning procedural default, but excepting ineffective assistance of counsel claims). As to all claims, the ineffective assistance of counsel claims and the others, the record makes clear they are meritless.
The Motion attempts to raise numerous grounds for relief. While Esparza-Cruz has made some effort to number them, the separately numbered topics run together or are duplicative, and the headings do not accurately identify the information under them. In this order, the Court addresses each of Esparza-Cruz's substantive claims in the order raised, although they do not correspond exactly to the Motion's numbering scheme.
Claim 1: Ineffective Assistance of Counsel
It is apparent much of the Motion's text has been cut and pasted from other pleadings, because most of the claims have no relationship to Esparza-Cruz's case and are not cognizable on § 2255 review. This claim is an example of that: Esparza-Cruz in detail attacks his attorney's performance at trial, accusing the attorney of six legal errors. (Motion at 4.) The claims have no factual basis because Esparza-Cruz did not go to trial; he pleaded guilty. His counsel therefore had no occasion to move to suppress evidence during the trial, to object to misleading testimony, and so forth.
Only two claims have any possible basis in reality. First, Esparza-Cruz argues his attorney failed to investigate witnesses that "would have revealed a factual basis of minimal participation in this offense." Even assuming there were any such witnesses, the Court's denial of minor role adjustment was affirmed on the basis of the large quantity of methamphetamine he was importing, and Esparza-Cruz admitted the fact of the quantity. No witnesses could have rebutted this evidence.
Second, he argues his attorney failed to make unspecified objections to the presentence report and to request a downward departure. This fails, however, because the plea agreement recommends a downward departure for fast-track disposition, as does his own attorney's sentencing memorandum, which Esparza-Cruz received. Both the plea agreement and sentencing memorandum also recommend other downward adjustments and reductions. Defendant's counsel also requested downward departures on other bases, citing United States v. Cook, 938 F.2d 149 (9th Cir. 1991) and United States v. Mendoza, 121 F.3d 510 (9th Cir. 1997).
Esparza-Cruz does not allege he was eligible for any other departures nor does he identify anything in the presentence report that would have been objectionable.
Claim 2: Court's Failure to Consider Fast-Track Disparity
Esparza-Cruz argues the Court should have acknowledged his argument at sentencing for a below-guidelines sentence based on fast-track disparity in this district. No such argument was raised, however, and for two good reasons. First, the Court is forbidden to take such disparities into account. United States v. Ortega-Lopez, 2011 WL 1594797, slip op. at *1 (9th Cir. April 28, 2011) (quoting United States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir. 2009)). More importantly, Esparza-Cruz benefitted from a fast-track departure, so his complaint about disparity is a non-starter.
Claim 3: Court's Failure to Explain Its Sentence
This very generalized claim asserts the district court failed to discuss § 3553(a) factors, failed to explain why it rejected his attorney's arguments, and "did not explain why it chose the 75-months middle-range sentence it imposed." (Motion at 5.) This claim is belied by the record, as well as by Esparza-Cruz's brief on appeal, which details his disagreement with the Court's reasoning for imposing the sentence it did and for rejecting his counsel's arguments. (See, e.g., United States v. Esparza-Cruz, 09-50150, Defendant-Appellant's Opening Brief (Docket no. 12) at 7--15 (discussing sentencing proceeding); see also id. at 15 ("After discussing Mr. Esparza's case and going through the statutory sentencing factors, the court settled on a 75-month sentence . . . .")
The Motion raises these same claims using similar wording more than once, but the ruling on ...