The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S REQUEST FOR A HABEAS PETITION (Docket # 346, filed on July 9, 2012)
I. INTRODUCTION AND BACKGROUND
On July 13, 2011, petitioner Claude Bood pled guilty to conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846. United States v. Claude Bood, CR No. 10-851 CAS, Dkt. No. 225. In his plea agreement, petitioner admitted that he conspired to knowingly and intentionally distribute at least 100 kilograms of a mixture or substance containing a detectable amount of marijuana. Plea Agreement, Dkt. No. 223, ¶¶ 5, 12. Petitioner managed a drug stash house, packed and stored marijuana, sold marijuana to customers, and collected proceeds from the sale of marijuana. Id. ¶ 12.
In his plea agreement, petitioner and the government stipulated that his base offense level based on the drug amount was 26. Id. ¶ 14. Petitioner and the government reserved the right to argue that additional specific offense characteristics, adjustments, and departures under the sentencing guidelines were appropriate. Id. Petitioner also reserved the right to argue for a sentence outside the range provided for by the sentencing guidelines. Id. ¶ 16.
Furthermore, pursuant to his plea agreement, petitioner gave up his right to appeal his conviction except for an appeal based on a claim that his guilty plea was involuntary. Id. ¶ 18. Petitioner also gave up his right to appeal any sentence imposed by the Court, and the manner in which the sentence is determined, provided that the term of imprisonment did not exceed 120 months. Id. ¶ 19. Moreover, petitioner's plea agreement barred him from bringing a collateral attack on his sentence or conviction based on any claim other than ineffective assistance of counsel. Id. The plea agreement also provides that petitioner may not seek to withdraw his guilty plea on any basis other than a claim that his entry into it was involuntary.
On September 19, 2011, the United States Probation Office issued petitioner's Presentence Investigation Report ("PSR"), which calculated a guideline range of 100 to 125 months based on a total adjusted offense level of 25 and a criminal history category of V. PSR, Dkt. No. 257 at 3 (base offense level 26, a two-level enhancement for the firearm possessed by petitioner's house mate and co-conspirator, and a three-level downward departure for acceptance of responsibility). The probation officer found that the co-conspirator's possession of the loaded handgun was "a reasonably foreseeable act of a co-conspirator in furtherance of the jointly undertaken criminal activity." Id. at 37.
The PSR also set forth the roles of the co-conspirators. Three of the co-conspirators were grow house operators, and one distributed between 40 to 50 kilograms of marijuana. The PSR also listed the sentences imposed on the four co-conspirators. One of the co-conspirators received a sentence of 36 months while the other three received 60 months. Id. at 5. However, the PSR distinguished petitioner from his co-conspirators and stated that petitioner "played an essential role in the functioning of the stash house and in the distribution of over 100 kilograms of marijuana with which he was directly involved." Id. ¶ 43.
On November 16, 2011, the Court sentenced petitioner to 90 months of imprisonment and ordered him to pay a special assessment of $100. Upon release from imprisonment, petitioner is to be placed on supervised release for four years. The Court agreed with the PSR's total offense level calculation and criminal history category for petitioner.
On July 9, 2012, petitioner filed a motion for relief from his sentence pursuant to 28 U.S.C. § 2255. His petition sets out two grounds for granting this relief: (1) ineffective assistance of counsel, and (2) violation of due process. Mot. at ¶ 12, Dkt. No. 346. On October 1, 2012, the government filed its opposition. Petitioner failed to file a reply. 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).
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. Strickland, 466 U.S. at 689. The petitioner must "overcome 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, ...