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United States of America v. Winston George Ross

August 24, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
WINSTON GEORGE ROSS, DEFENDANT.



The opinion of the court was delivered by: United States District Judge Manuel L. Real

JS-6

ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255

I. INTRODUCTION

Defendant Winston George Ross is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He seeks post conviction relief on the grounds of ineffective assistance of counsel. Specifically, Defendant contends that his attorney, Pedro Castillo, rendered ineffective assistance of counsel by (1) misrepresenting to Defendant that a defense witness would appear, (2) misrepresenting to Defendant that an expert witness would testify as to financial records, (3) failing to call any defense witnesses, and (4) failing to adequately prepare for trial. The Court has carefully considered the record and the applicable law, and for the reasons set forth below, finds that the motion must be denied.

II. LEGAL STANDARD

In a petition for writ of habeas corpus alleging ineffective assistance of counsel, courts must consider two factors. First, the petitioner must show that counsel's performance was deficient, falling below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the petitioner must demonstrate that he was prejudiced by counsel's performance. Id. at 694. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

The Ninth Circuit has advised that courts do not need to determine whether counsel's performance was deficient before analyzing the alleged prejudice suffered by the defendant. Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002). In fact, a court should dispose of an ineffectiveness claim based upon a lack of sufficient prejudice when it is easier to do so than on the basis of counsel's alleged deficient performance. Id. This is because "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). Likewise, there is a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). Finally, conclusory claims that are not supported by a statement of specific facts do not warrant relief. Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995).

III. DISCUSSION

Defendant claims he was prejudiced by counsel in four ways. As outlined in more detail below, Defendant has failed to demonstrate either a deficient performance or any prejudice with respect to his allegations. Moreover, Defendant has not overcome the strong presumption that Castillo's performance was within the wide range of acceptable professional assistance.

A. Failure to Advise Defendant that Jeff Mischler Would Testify at Trial Defendant first contends that his attorney misrepresented to him that Jeff Mischler would testify at trial. Defendant states that he did not become aware that the subpoena of Mischler was denied until after the trial, and that such misrepresentation resulted in prejudice. Respondent argues that Plaintiff cannot satisfy either prong of Strickland and that defense counsel never advised Defendant that Mischler would testify.

The Court agrees with Respondent. Defendant has failed to demonstrate either a deficient performance by counsel or any resulting prejudice. First, assuming that Plaintiff's allegations are true, there is no evidence that counsel's acts fell below any objective standard of reasonableness. Counsel was free to make tactical decisions in the case without obtaining Defendant's prior approval. Moreover, Castillo claims to have communicated to Defendant that the Mischler subpoena was denied. (Defense Counsel's Answers to Government's First Set of Interrogatories ("Counsel's Answers to Interrogatories"), ¶ 1).

Additionally, Defendant has failed to show any prejudice. Defendant does not articulate what Mischler would have testified to, or how such testimony would have resulted in a different result at the trial. Defendant has therefore failed to demonstrate how Castillo's alleged miscommunication constituted a deficient performance, and has not overcome the presumption that Carillo exercised acceptable professional guidance.

B. Misrepresenting that an Expert Witness Would Testify to Financial Statements

Defendant next contends that he was greatly prejudiced by counsel's misrepresentation that an expert witness was hired to analyze financial statements and to testify at trial. Respondent again states ...


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