The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
VAP ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
I. SUMMARY OF PROCEEDINGS
On November 10, 2011, Petitioner Jason Wilson ("Petitioner") filed a "Motion for Relief under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." ("Mot." (Doc. No. 40).)*fn1 On December 21, 2011, the Government filed its Opposition to Petitioner's Motion ("Opp'n"). On January 19, 2012, Petitioner filed his Reply.
II. PROCEDURAL BACKGROUND
On August 12, 2009, a federal grand jury in this district returned a six-count indictment against Petitioner, charging him with: two counts of sex trafficking of children, in violation of 18 U.S.C. § 1591(a)(1); and four counts of transporting minors into prostitution, in violation of 18 U.S.C. § 2423(a). (Doc. No. 1.)
On August 19, 2010, the United States Attorney's Office ("USAO") filed a first superseding information against Petitioner, charging him with one count of transporting a minor into prostitution, in violation of 18 U.S.C. § 2423(a). (Doc. No. 21.) Also on August 19, 2010, Petitioner entered into a plea agreement with the USAO, wherein Petitioner agreed to plead guilty to the single-count first superseding information. (Doc. No. 24.) On September 8, 2010, the Court held a change of plea hearing. At that hearing, Petitioner entered, and the Court accepted, a guilty plea to the single-count first superseding information. (Doc. No. 28.)
On November 5, 2010, the United States Probation Office ("USPO") filed a Presentence Report ("PSR") as to Petitioner. (Doc. No. 30.) Petitioner and the USAO each filed their responses to the PSR. (Doc. Nos. 31 - 34.) After the parties filed their responses, the USPO filed an addendum to the PSR addressing the arguments and objections advanced in Petitioner's PSR response. (See Doc. No. 35.)
On December 13, 2010, the Court sentenced Petitioner to 96 months imprisonment and five years of supervised release. (See J. & Conviction Order (Doc. No. 38).)
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 States 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)).
Petitioner contends he received ineffective assistance of counsel because his counsel, Jeffrey Aaron, failed to object to certain of the criminal history calculations in Petitioner's PSR. (Mot. at 5.) Moreover, Petitioner contends that had Mr. Aaron objected, Petitioner would have been placed in criminal history category III, not category IV, which would, in turn, have reduced his sentence from 96 months to 87 months. (Id.)
A. Petitioner's Ineffective Assistance of Counsel Claim
To establish ineffective assistance of counsel, a defendant must prove (1) "counsel's representation fell below an objective standard of reasonableness," and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Franklin v. Johnson, 290 F.3d 1223, 1237 (9th Cir. 2002) (quoting Strickland). But, the "likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 792 (2011).
A claim of ineffective assistance of counsel requires proof of both of these elements. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697. Moreover, a defendant must "overcome the presumption that, under the circumstances, the challenged action ...