The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY [DOC. 1249]
On August 13, 2009, Petitioner Dennis Louis Alba, a federal prisoner proceeding pro se, commenced this Section 2255 habeas corpus proceeding. On May 18, 2010, Petitioner filed a First Amended § 2255 Motion to Vacate, Set Aside or Correct Sentence (the "Amended Petition" [Doc. 1200]*fn1 ). Respondent United States of America opposed the motion, and on November 18, 2011, this Court denied the Petition. Petitioner now seeks a certificate of appealability ("COA"). For the reasons stated below, the Court DENIES Petitioner's motion for a COA [Doc. 1249].
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) ("AEDPA"), a federal prisoner may not appeal the denial of a section 2255 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2255 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue certificates of appealability under the AEDPA). In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To meet this standard, Petitioner must show that:
(1) the issues are debatable among jurists of reason; (2) a court could resolve the issues in a different manner; or (3) the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000)); Barefoot v. Estelle, 463 U.S. 880 (1983). Petitioner does not have to show "that he should prevail on the merits. He has already failed in that endeavor." Lambright, 220 F.3d at 1025 (citing Barefoot, 463 U.S. at 893 n.4).
Petitioner argued that his sentence should be vacated and corrected because he was denied effective assistance of counsel in violation of the Sixth Amendment.
To prevail on an ineffective assistance of counsel claim, a petitioner must prove that the performance of his or her attorney was grossly deficient, and that the defense was prejudiced by the attorney's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner bears the burden of establishing both elements. U.S. v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
Given the "distorting effects of hindsight," in evaluating an ineffective assistance of counsel claim, courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. A petitioner may establish prejudice only by demonstrating a reasonable probability that but for his attorney's error, the outcome of his trial would have been different. Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
Here, Petitioner raised numerous theories supporting his ineffective assistance of counsel claim. The Court will address each separately.
A. The Continuing Criminal Enterprise charge.
Petitioner argued that his attorney failed to challenge the Continuing Criminal Enterprise ("CCE") charge (Count 1 of the Second Superseding Indictment), which Petitioner contended was defective for a number of reasons. (See Amended P&A in Support of Amended Petition ("Amended P&A") [Doc. 1200-5]6--17.) Petitioner first argued that the CCE charge failed to allege the violations underlying the § 848(a) offense and therefore lacked a necessary element. (Id. 11-13.)Petitioner was wrong.
The indictment asserted violations of 21 U.S.C. §§ 846, 843(b), and 841(a)(1) as the predicate violations supporting the CCE charge:
Beginning at a date unknown to the grand jury and continuing up to and including October 18, 2001, within the Southern District of California, and elsewhere, defendant DENNIS LOUIS ALBA, did knowingly and intentionally engage in a continuing criminal enterprise by violating various provisions of the Controlled Substances Act (Title 21, United States Code, Sections 846, 843(b) and 841(a)(1)), which offenses were part of a continuing series of violations of the Controlled Substances Act, and were undertaken by defendant DENNIS LOUIS ALBA with at least five other persons, with respect to whom defendant DENNIS LOUIS ALBA occupied a position as organizer, supervisor, and leader, and ...