The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Defendant-Petitioner Jose Chavez Huerta ("Petitioner") filed this Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ("Motion") on September 22, 2010. (Doc. No. 507.*fn1 ) On October 15, 2010, the Government filed its Opposition to the Motion ("Opposition"). (Doc. No. 509.)
Petitioner did not file a reply. For the reasons set forth below, the Court DENIES the Motion.
On February 2, 2009, Petitioner pled guilty before the Court, the Honorable Stephen G. Larson presiding, to one count of violating 21 U.S.C. §§ 846, 841(a)(1). On September 14, 2009 the Court imposed a sentence of 240 months imprisonment and ten years of supervised release, and on September 23, 2009, the Court issued its Judgment and Commitment Order. (Doc. No. 485.) Petitioner did not file a direct appeal from his conviction or sentence.
28 U.S.C. § 2255 permits federal prisoners to file motions to vacate, set aside, or correct a sentence on 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[.]" 28 U.S.C. § 2255. The Supreme Court has "repeatedly stressed the limits of a § 2255 motion . . . [and] cautioned that § 2255 may not be used as a chance at a second appeal." United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (citing United States v. Addonizio, 442 U.S. 178, 184 (1979)).
Petitioner asserts two grounds in his Motion: (1) his defense attorney "failed to conduct a thorough investigation into the continuing legality of the wire taps" in his underlying criminal case, and thus his conviction was based upon faulty evidence (Mot. at 3); and (2) prison officials have violated his rights under the First and Fifth Amendments by stealing his legal papers and denying him legal assistance to research and prepare his petition (id. at 4). The Government argues neither claim is cognizable under § 2255.
A. Petitioner's First Claim
In his first claim, Petitioner challenges his sentence on the basis that he was convicted based upon evidence gained from wiretaps and that his counsel "failed to conduct a thorough investigation into the continuing legality of the wire taps." (Mot. at 3.) Petitioner cannot bring his first claim because it is procedurally barred.
"[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (citations and internal quotation marks omitted). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice' or that he is actually innocent." Id. at 622 (internal citations omitted); see also United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (sentencing errors not raised on direct appeal are waived and may not be reviewed by § 2255 motion).
A petitioner may demonstrate "cause" by showing "that 'some objective factor external to the defense impeded his adherence to the procedural rule.'" United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A petitioner can demonstrate "prejudice" by showing "not merely that the errors at . . . 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." United States v. Frady, 456 U.S. 152, 170 (1982); United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007).
As Petitioner brings his first claim under the Sixth Amendment and challenges the actions of his attorney, he appears to assert a claim for ineffective assistance of counsel. A successful claim for ineffective assistance of counsel can satisfy the "cause" requirement. United States v. Withers, 638 F.3d 1055, 1064 (9th Cir. 2011); cf. Murray, 477 U.S. at 492 ("Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default[.]"). To establish an ineffective assistance claim, a petitioner must "show that his 'counsel's representation fell below an objective standard of reasonableness,' and that there is a 'reasonable ...