FINDINGS AND RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. He was convicted by a jury in the Eastern District of California on March 22, 2004, on all three counts of the federal indictment charging him with: (1) conspiring to manufacture at least 1,000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1); (2) manufacture of at least 1,000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924 (c)(1)(A)(i). On June 7, 2004, the then-assigned District Judge sentenced petitioner to 121 months in the custody of the Bureau of Prisons on each of Counts 1 and 2, to be served concurrently, and 60 months in the custody of the Bureau of Prisons on Count 3, to be served consecutively to the sentences imposed on Counts 1 and 2. In addition, the court imposed five-year terms of supervised release on each count, all to run concurrently.*fn1
The evidence and testimony introduced at petitioner's trial were that a commander
with the Modoc County Interagency Narcotics Task Force observed a marijuana garden during an aerial reconnaissance flight on September 27, 2002. The garden was exposed, not indoors, in a remote, forested area. The garden grew on private property known as the Sage Creek Ranch (also referred to at trial as the Jennings Ranch, for its owner, Richard Jennings) and spread into the Modoc National Forest. It was approximately the size of a football field. RT 151-52.*fn2
It appears Jennings kept a home on the ranch property, but from the record excerpts and evidence submitted in support of and opposition to the pending § 2255 motion, it is not entirely clear where the marijuana garden was located in relation to that residence. The government, relying on transcript excerpts from the trial, describes the layout of the property as follows:
Careful reconnaissance of the area surrounding the garden found no paths or trails of ingress or egress, except a dirt road that was controlled by a locked gate at the Jennings Ranch complex. This dirt road continued about three to four miles beyond the gate near the Jennings ranch house and stopped near the stock water tank. An all terrain vehicle ("ATV") trail branched off from the dirt road and led to the marijuana garden. The officers concluded that all of the massive amount of supplies, equipment, food, and workers that were used to grow the marijuana passed through the locked gate and were transported into the garden by vehicle driven on that dirt road and ATV trail.
Answer at 6 (Doc. No. 186) (record citations omitted).
Drug enforcement officers entered the ranch property without a warrant on September 27, the same day the marijuana garden was discovered. They seized 6,451 marijuana plants over the next two days. RT 319:10-11. Law enforcement officers discovered a nearby campsite with a kitchen area; there were also sleeping areas strewn with sleeping bags on opposite sides of the garden. RT 186:16-187:8; 255:5-256:7. They also found a loaded Ruger, Model10-22, .22 caliber rifle resting against a tree near the marijuana garden. RT 193:7-24; 530:14-531:22.
Quesada-Garcia, the movant, was the manager at the Jennings Ranch when
drug enforcement authorities raided it. RT 1287:4-5. He did not live
on the ranch property but resided in town with his wife. Answer (Doc.
No. 186), Appendix 1- Declaration of Dwight M. Samuel at 3.*fn3
After Quesada-Garcia was indicted, Dwight M. Samuel was
appointed as his counsel. Samuel has submitted a declaration under
penalty of perjury wherein he states that he discussed alternatives to
trial, in the form of plea agreements with the government, with his
client "[o]n many occasions" but the alternative he proposed were all
rejected by movant. Id. at 6. Quesada-Garcia went to trial, testified
on his own behalf, and was found guilty on all three charges brought
against him. As the district court summarized at movant's first
sentencing hearing, "the evidence was overwhelming that
[Quesada-Garcia] was actively involved" in supplying water, equipment
and communication necessary to maintain the marijuana garden. RT
1286:25-1287:8. The district court also observed that "[t]he evidence
seemed to be . . . pretty clear that this grow would never have taken
place without [Quesada-Garcia]." RT 1287:8-1287:10.
Movant Quesada-Garcia now seeks to have his conviction and sentence vacated pursuant to 28 U.S.C. § 2255, alleging three claims of ineffective assistance of counsel: (1) failure to move to suppress the contraband evidence (the marijuana and a rifle) that formed the basis of the prosecution's case; (2) failure to obtain an English/Spanish interpreter to aid movant's understanding of the criminal proceedings and his communication with his lawyer;*fn4 and (3) inadequate advice concerning alternatives to standing trial, especially the option of making an "open plea," untethered to any promise to cooperate with the government in its case against other charged defendants. The government has filed an answer in opposition to the motion, and Quesada-Garcia has filed a traverse.
II. Standards under § 2255
Title 28 U.S.C. § 2255(a) states that "[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 . . . may move the court which imposed sentence to vacate, set aside or correct the sentence." A court that receives a motion filed under § 2255 "must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and files and records of the case conclusively show that the petitioner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing on such a motion if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotations omitted). To earn the right to a hearing, therefore, a movant must make specific factual allegations that, if true, would entitle him to relief. Id. Merely conclusory statements are insufficient to warrant a hearing under § 2255. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
For the reasons that follow, the court finds that the motion, record and arguments presented conclusively establish that movant Quesada-Garcia is not entitled to relief. Therefore, the court need not hold a hearing under § 2255.
III. Ineffective Assistance of Counsel
The U.S. Supreme Court has clearly defined the elements necessary to establish that a criminal defendant's legal representation was so ineffective it violated the defendant's right to counsel under the Sixth Amendment:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. A defendant claiming ineffective assistance of counsel bears the burden of establishing counsel's performance as unreasonable. It is a fairly high threshold of proof, since a court must presume "that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Id. at 689.
It also is petitioner's burden to establish prejudice. "A defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack ...