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United States of America v. Carlos Ulises Lobo

February 29, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
CARLOS ULISES LOBO, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody and the Motion for Appointment of Counsel under 18 U.S.C. § 3006A filed by Defendant, Carlos U. Lobos. (ECF Nos. 69, 74). Defendant moves the court to vacate his conviction and grant a new trial. Defendant contends he received ineffective assistance of counsel on the following grounds:

1. Counsel failed to familiarize himself with the law regarding official restraint and move to dismiss the case or challenge the sufficiency of the evidence because defendant was not found in the United States since he was under official restraint;

2. Counsel failed to investigate regarding a duress defense and adequately advise Defendant to testify on his own behalf regarding the duress defense;

3. Counsel failed to pursue plea negotiations; and

4. Defendant's appellate counsel was ineffective for failing to raise the issues he raises in the instant motion regarding his trial counsel's representation.

Defendant moves the court to appoint counsel. Defendant contends he is "indigent . . . untrained, unskilled, and unlearn[ed] in the United States justice system . . . and understands very little English." (ECF No. 74 at 1).

APPLICABLE LAW

28 U.S.C. §2255 provides that "A prisoner 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, 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence."

RULING OF THE COURT

A. Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel, Petitioner must show that representation of counsel fell below an objective standard of reasonableness, and that any deficiencies in counsel's performance were prejudicial. See Strickland v. Washington, 466 U.S. 668, 690 (1984). Both deficient performance and prejudice are required before it can be said that a conviction or sentence resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable and thus in violation of the Sixth Amendment. See United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005).

In order to show that counsel's representations fell below an objective standard of reasonableness, Defendant must identify "material, specific errors and omissions that fall outside the wide range of professionally competent assistance." United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991) (citation omitted). The inquiry is "whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (internal quotations omitted). In making this determination, the court applies a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Strickland, 466 U.S. at 689. "The Sixth Amendment recognizes the right to assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Id. at 685. A deficient performance requires showing that "counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. at 687. "The standard for prejudice ...


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