The opinion of the court was delivered by: Christina A. SnyderUnited States District Judge
ORDER DENYING PETITIONER'S REQUEST FOR A HABEAS PETITION (Docket # 61 , filed on Oct. 4, 2011)
I. INTRODUCTION AND BACKGROUND
On March 18, 2010, petitioner Lisa Mahoney pled guilty to wire fraud in violation of 18 U.S.C. § 1343. United States v. Lisa Mahoney, CR No. 09-1217 CAS, Dkt. No. 19. In her plea agreement, petitioner admitted that she participated in a ponzi scheme to trick people into investing in real estate that did not exist. See Plea Agreement, Dkt. #3, Ex. A. Petitioner represented to the victims of her scheme that she personally held a deed or lien on real estate under development, and guaranteed the victims substantial returns on their investments. Id. In reality, petitioner owned no such deed or lien, and while petitioner paid the victims "returns" on their investment, she was in truth using new investor funds to pay earlier investors. Id.
In her plea agreement, petitioner and the government stipulated that her offense level was 26. Plea Agreement ¶ 12 (base offense level 7, an 18 level enhancement for a loss over $2.5 million but not exceeding $7 million, a 4 level enhancement due to the presence of more than fifty victims, and a 3 level downward departure for acceptance of responsibility). Defendant nonetheless reserved the right to argue for a sentence outside the range provided for by the sentencing guidelines. Id. ¶ 14. The government, in turn, promised to recommend a term of imprisonment not in excess of 48 months. Id. ¶¶ 14, 18.
Additionally, pursuant to her plea agreement petitioner gave up her right to appeal any sentence imposed by the Court as long as the sentence was within the statutory maximum, was not imposed pursuant to an upward departure in offense level or criminal history category, was imposed pursuant to a determination that her total offense level was 26 or below, and was within the guidelines range corresponding to the her total offense level and criminal history category. Id. ¶ 21. Petitioner's plea agreement does, however, allow her to bring a collateral attack on her sentence or conviction based on a claim of ineffective assistance of counsel. Id.
The plea agreement also provides that if the Court finds a breach of the plea agreement, then the government is relieved of all obligations under the agreement, and further that if it elects to pursue charges dismissed or not filed because of the agreement, defendant gives up defenses based on statute of limitations, pre-indictment delay, or speedy trial claim (except to the extent those defenses existed when the plea agreement was signed). Id. ¶¶ 19 -- 20. The Court is not a party to the plea agreement and is not bound by its terms. Id. ¶¶ 15, 23.
On October 15, 2010, the Court sentenced petitioner to 48 months of imprisonment, and on January 10, 2011, the Court ordered petitioner to pay $2,928,607.43 in restitution. /
On October 4, 2011, petitioner filed a motion to reduce her sentence pursuant to 28 U.S.C. § 2255. Her petition sets out two grounds for granting this relief: (1) unjust sentence, and (2) ineffective assistance of counsel. Mot. at 15-18. On July 12, 2012, the government filed its opposition. Petitioner filed a reply on August 15, 2012. 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). A claim of ineffective assistance of counsel fails if either prong of the test is not satisfied and petitioner has the burden of establishing both prongs. Id. at 697; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
With respect to the first prong, the court's review of the reasonableness of counsel's performance is "highly deferential," and there is a "strong presumption" that counsel exercised reasonable professional judgment. Id. The petitioner must "surmount the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.
After establishing an error by counsel and thus satisfying the first prong, a petitioner must satisfy the second prong by demonstrating that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that there is a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
The Court need not necessarily determine whether petitioner has satisfied the first prong before considering the second. The Supreme Court has held that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Id. at 670. Indeed, a petitioner's failure to allege the kind of prejudice necessary to satisfy the second prong is sufficient by itself to ...