The opinion of the court was delivered by: The Honorable David O. Carter, Judge
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Before the Court is pro se Petitioner Gabriel Bernardo Sanchez's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("Motion"). Mot. (Dkt. 1). After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby DENIES the Motion.*fn1
On March 9, 2004, Petitioner Gabriel Bernardo Sanchez ("Petitioner") was convicted by a jury of thirty-three counts of mail fraud, in violation of 18 U.S.C. § 1341, and eleven counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Mot. (Dkt. 1) at 2. The Court sentenced Petitioner to 180 months imprisonment.
Petitioner appealed his sentence to the Ninth Circuit in 2006, which affirmed on all grounds but remanded for the limited purpose of determining whether the court would have imposed the same sentence had it considered the sentencing guidelines to be advisory rather than mandatory, pursuant to United States v. Ameline, 409 F.3d 1073, 1078-79 (9th Cir. 2005) (en banc) (holding that to determine whether a sentence based on then-mandatory sentencing Guidelines constitutes error, the case must be remanded to the district court to determine "whether the sentence would have been different had the court known that the Guidelines were advisory."); United States v. Lyons, 453 F.3d 1222 (9th Cir. 2006). Petitioner then petitioned for certiorari, which was denied. Sanchez v. United States, 550 U.S. 937, 127 S.Ct. 2285 (2007). On remand, this Court concluded that it could not take Petitioner's post-rehabilitative efforts into account to answer the sole question placed before it on remand. This Court also determined that it would have imposed the same sentence had it considered the guidelines to be advisory rather than mandatory. Petitioner again appealed and in 2009 the Ninth Circuit affirmed. United States v. Sanchez, 569 F.3d 995 (9th Cir. 2009). The Petitioner petitioned for certiorari, which was again denied on November 30, 2009. Sanchez v. United States, 130 S. Ct. 761, 175 L.Ed.2d 531 (2009).
On November 8, 2010 Petitioner lodged the present Motion and the Motion was filed on December 1, 2010. Mot. (Dkt. 1).*fn2
A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that ... there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S .C. § 2255(b). If the motion combined with the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id .
The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F.Supp.2d 1181, 1187 (D.Kan.2001) (citation omitted). In a successful § 2255 motion, the "defendant must show a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
In his motion, Petitioner seeks to invalidate his sentence on the following grounds:
(1) the government failed to disclose to the defense information
regarding a witness; (2) the court failed to disclose the existence of
the information regarding the witness upon learning that the defense
was unaware of its existence; (3) the court failed to give proper jury
instructions regarding the witness; (4) Petitioner was convicted on an
unlawful theory of fraud; (5) Petitioner's counsel rendered
ineffective assistance by failing to advise Petitioner that the
percentage of funds paid to fundraisers would be admissible evidence;
(6) Petitioner's counsel rendered ineffective assistance by failing to
arrange for testimony of any defense witnesses, failing to assist in
preparing defense exhibits, and failing to prepare defense witnesses;
(7) Petitioner's counsel rendered ineffective assistance by failing to
prepare jury instructions; (8) Petitioner's counsel ...