The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255.
I. INTRODUCTION AND BACKGROUND
On October 6, 2009, petitioner Lucio Aquiles-Zamora pled guilty to violations of 21 U.S.C. §841(a)(1) and §841(b)(1)(A), for possession with intent to distribute five or more kilograms of cocaine. He was sentenced to 120 months imprisonment on July 29, 2010. The plea agreement contained a waiver of the right to appeal the sentence imposed and the manner in which the sentence was determined as well as a waiver of the right to collaterally attack the sentence or conviction. Case No. CR 08-1162, Dkt. No. 195 ¶ 24.*fn1 On May 31, 2011, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255. Petitioner bases his petition on four grounds: (1) petitioner's lawyer provided ineffective assistance of counsel because he refused to file an appeal on petitioner's behalf; (2) petitioner received a lengthier sentence of imprisonment than his co-defendants and his lawyer failed to bring this fact to the Court's attention; (3) the government improperly charged petitioner; and (4) petitioner received a lengthier sentence of imprisonment than his co-petitioners.
On August 30, 2011, the government filed an ex parte application requesting an order (1) authorizing disclosure of certain attorney client communications; and (2) establishing procedures for obtaining such attorney client communications. Case No. CR 08-1162, Dkt. No. 410. On September 2, 2011, the Court found that petitioner had waived his attorney-client privilege with respect to communications relevant to his petition. Case No. CR 08-1162, Dkt. No. 411. The Court ordered petitioner either to provide notice of his election to withdraw his ineffective assistance of counsel claims or to provide the interrogatory responses prepared by Michael Roger McDonnell ("McDonnell"), petitioner's counsel in the underlying matter, and any objections to those interrogatories by October 31, 2011. Id.
On February 9, 2012, the Court found that petitioner had effectively withdrawn his request for relief based on ineffective assistance of counsel by failing to timely file the interrogatory responses and any objections. Case No. CV 11-4681, Dkt. No. 9. The Court found that petitioner's remaining arguments failed due to his waiver of his right to appeal or collaterally attack the sentence. Id. Accordingly, the Court denied petitioner's motion for a reduction of sentence pursuant to 28 U.S.C. §2255. Id.
On February 17, 2012, petitioner filed a motion for reconsideration, in which he stated that he sent objections to U.S. Attorney Andre Birotte Jr. on October 31, 2011. Case No. CR 08-1162, Dkt. No. 416. The government filed an opposition on February 28, 2012, in which it asserted that it has not received any such objections. Case No. CV 11-4681, Dkt. No. 12. On March 30, 2012, petitioner filed a reply reasserting that he did, in fact, send both the interrogatory answers and his objections on October 31, 2011. Case No. CV 11-4681, Dkt. No. 12. Petitioner asked the Court to permit him to resend the material and to allow him another opportunity to contest his sentence. Id. On April 9, 2012, the Court vacated its February 9, 2012 order and directed petitioner to resubmit a copy of both McDonnell's responses to the interrogatories and petitioner's objections thereto. Case No. CV 11-4681, Dkt. No. 13. On July 17, 2012, the government filed a further opposition to petitioner's motion. Case No. CV 11-4681, Dkt. No. 16. After considering the parties' arguments, the Court finds and concludes as follows.
A petition pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "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." Sanders v. United States, 373 U.S. 1, 2 (1963).
Ineffective assistance of counsel constitutes a violation of the Sixth Amendment right to counsel, and thus, if established, is grounds for relief under section 2255. To establish ineffective assistance of counsel, a petitioner must prove by a preponderance of the evidence: (1) the assistance provided by counsel 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). The petitioner carries the burden of establishing both prongs. Id. at 697; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
A. Ineffective Assistance of Counsel
(1) Consultation Regarding Sentence and Appellate Rights
Petitioner claims that McDonnell failed to advise him of his appellate rights. Mot. at 3. Petitioner also argues that "[McDonnell] never advised this movant that he faced a ten year mandatory minimum as part of the plea agreement." Id.
The government argues that petitioner cannot demonstrate that he received ineffective assistance of counsel because McDonnell in fact advised petitioner of his sentence and his limited right to appeal, and because petitioner ...