The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. No. 75]
Petitioner Antonio Reyes, proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court has considered the motion, Respondent's opposition, Petitioner's traverse,*fn1 and all additional supporting documents submitted by the parties. For the following reasons, the Court DENIES the motion.
On November 5, 2009, a jury convicted Petitioner of one count of importation of marijuana. [Doc. No. 53.] A mistrial was declared on a separate count of possession of marijuana with intent to distribute after the jury was unable to reach a verdict as to that count. [Id.] On April 5, 2010, the Court sentenced and committed Petitioner to 46 months in the custody of the Bureau of Prisons, to be followed by three years of supervised release. [Doc. No. 64.]Petitioner timely filed a Notice of Appeal on April 6, 2010. On May 25, 2011, the Ninth Circuit filed a memorandum order affirming Petitioner's sentence. [Doc. No. 74.]
Petitioner now moves the Court for an order vacating, setting aside, or otherwise correcting his sentence pursuant to 28 U.S.C. § 2255, setting forth multiple grounds for relief. [Doc. No. 75.] Respondent filed an opposition, and Petitioner filed a traverse. [Doc. Nos. 95 & 100.]
Under Section 2255, a court may grant relief to a federal prisoner who challenges the imposition or length of his incarceration on any of the following four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). However, a Section 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. See Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970) ("[h]aving raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under Section 2255.").
Even when a Section 2255 petitioner has not raised an alleged error at trial or on direct appeal, the petitioner is procedurally barred from raising an issue in a Section 2255 petition if it could have been raised earlier, unless the petitioner can demonstrate both "cause" for the delay and "prejudice" resulting from the alleged error. "To obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982); accord Davis v. United States, 411 U.S. 233, 242 (1973). To show "actual prejudice" a Section 2255 petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
The court may dismiss a Section 2255 petition if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Section 2255 Rules. The court need not hold an evidentiary hearing if the allegations are "palpably incredible" or "patently frivolous," or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a "district court has discretion to deny an evidentiary hearing on a Section 2255 claim where the files and records conclusively show that the movant is not entitled to relief").
Petitioner raises various claims, including three for ineffective assistance of counsel, one for abandonment of counsel, and one regarding the retroactivity of a recent Supreme Court case, United States v. Jones, 132 S. Ct. 945 (2012). Respondent argues that all claims lack merit.
For the following reasons, the Court finds Petitioner's claims to be without merit. The Court declines to hold an evidentiary hearing, as the issues can be conclusively decided on the basis of the existing record.
1. Ineffective Assistance of Trial Counsel
Petitioner raises three claims of ineffective assistance of trial counsel based on counsel: (1) failing to move to suppress cell site location information ("CSLI") under the Fourth Amendment; (2) failing to object to testimony of the cellular service provider's records custodian; and (3) failing to ...