The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY [Doc. No. 29 in 10cr3090]
Petitioner, a federal inmate proceeding pro se, submitted a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 46 months in custody, resulting from his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. He seeks relief on two grounds: (1) ineffective assistance of counsel, and (2) qualification for United States citizenship under 8 U.S.C. § 1431. Having considered the parties' arguments, and for the reasons set forth below, the Court DENIES Petitioner's motion to vacate, set aside, or correct his sentence.
Petitioner was charged with, and ultimately pleaded guilty to, being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b). [Doc. Nos. 1, 18.] As part of his Plea Agreement, Petitioner stated that he understood that he was pleading guilty to a count, which had as one of its elements that "Defendant was not a citizen of the United States," (Plea Agr't ¶ II.A.1 [Doc. No. 18]), and he agreed that this fact was "true and undisputed," (id. ¶ II.B.1). In his Plea Agreement, Petitioner also indicated that he "had a full opportunity to discuss all the facts and circumstances of this case with defense counsel, and has a clear understanding of the charges and the consequences of this plea." (Id. ¶ VI.A.) Finally, as part of the Plea Agreement, Petitioner expressly "waive[d], to the full extent of the law, any right to appeal, or to collaterally attack the conviction and sentence." (Id. ¶ XI.) On April 4, 2011, the Court sentenced Petitioner to 46 months of custody, followed by 3 years of supervised release. [Doc. No. 27.]
Petitioner filed the present motion on July 14, 2011. [Doc. No. 29.] Petitioner first contends that he was denied effective assistance of counsel because his court-appointed counsel:
(1) failed to file timely objections to the Pre-Sentence Report ("PSR"); (2) failed to properly investigate the case or request Petitioner's background history to determine if Petitioner qualified for 8 U.S.C. § 1431; (3) failed to file a timely notice of appeal or preserve issues for appellate review; and (4) failed to argue for the application of 8 U.S.C. § 1431, where the record would have demonstrated that Petitioner's father was a United States citizen. In the alternative, Petitioner contends he is actually innocent of being a deported alien found in the United States in violation of 8 U.S.C. § 1326 because he can demonstrate that he qualifies for application of 8 U.S.C. § 1431, and therefore was erroneously classified as an illegal alien. Following the Court's Order to Show Cause, [Doc. No. 30], the Government filed a response in opposition to the motion, [Doc. No. 32]. The Court decides this motion without oral argument pursuant to the Civil Local Rule 7.1(d)(1).
Section 2255 authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979). If the record clearly indicates that a petitioner does not have a claim or that he has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record," a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United Stats v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, the district court must grant an evidentiary hearing 'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255)).
I. Ineffective assistance of counsel
The Sixth Amendment to the United States Constitution guarantees the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). In order to succeed on an ineffective assistance of counsel claim, the petitioner must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Id. at 687. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id. at 689, and the petitioner bears the burden of establishing both prongs of the standard, see Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002).
To show that his counsel's performance was deficient, the petitioner must show that it "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. In this regard, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the petitioner must overcome a strong presumption "that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citation omitted).
To establish prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
A. Failure to file timely objections to the PSR
Petitioner first contends that his counsel was ineffective because he failed to file timely objections to the PSR. Even assuming the objections were untimely filed, Petitioner has failed to show any resulting prejudice. The docket demonstrates that on February 14, 2011, Petitioner's counsel filed a motion for a downward departure based on cultural assimilation. [Doc. No. 21.] The docket further demonstrates that Petitioner's counsel did file a sentencing memorandum one week before sentencing, objecting to the PSR's recommendation that Petitioner be sentenced to 51 months in custody. [See Doc. No. 24.] At the sentencing hearing, the Court considered both of these documents, although it ultimately denied the motion for a downward departure. [Doc. No. ...