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 # 10 , filed on Nov. 2, 2012)
I. INTRODUCTION AND BACKGROUND
On March 11, 2011, a jury found petitioner Timothy Gomez guilty of possession with intent to distribute at least five grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B(ii). United States v. Timothy Gomez, CR No. 10-1234 CAS, Dkt. No. 107. On December 1, 2011, petitioner and the government executed a Post-Trial Agreement setting out various terms regarding defendant's sentencing. CR No. 10-1234 CAS, Dkt. No. 111. Pursuant to this agreement, petitioner agreed to admit to a violation of his supervised release in CR No. 06-101, and the parties agreed to recommend to the Court a total sentence of 78-months imprisonment. CR No. 10-1234 CAS, Dkt. No. 111. The government also agreed to dismiss a supplemental information, CR No. 10-1234 CAS, Dkt. No. 18, that sought to increase petitioner's mandatory minimum punishment to 10 years imprisonment, based on defendant's prior felony drug conviction, pursuant to 21 U.S.C. § 851. Post-Trial Agreement ¶ 4(a). Additionally, petitioner gave up his right to appeal either of his convictions or sentence. Id. Petitioner also agreed not to bring a post-conviction collateral attack on the conviction or sentence, except those based on a claim of ineffective assistance of counsel. Id. On December 5, 2011, the Court sentenced petitioner to 78 months of imprisonment. Dkt. No. 111.
On May 2, 2012, petitioner filed an initial motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 113. On July 25, 2012, the government filed its initial opposition. Dkt. No. 116. On November 1, 2012, petitioner filed an amended motion to vacate, set aside or correct his sentence. Dkt. No. 119. His amended petition asserts that: (1) it was a violation of the Ninth and Tenth Amendments to the United States Constitution to indict him under U.S.C. §§ 841(a)(1) and 841(b)(1)(B(ii), (2) he was entitled to a "pre-indictment hearing" to address his Ninth and Tenth Amendments claims, (3) his attorneys were ineffective because they did not challenge his indictment based on the Ninth and Tenth Amendments, and (4) his conviction violated the Due Process clause because the jury was not properly instructed at his trial.
On December 3, 2012, the government filed its amended opposition, and on January 10, 2013, petitioner filed a reply. Dkt. No. 124. 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 justify a denial of a petitioner's section 2255 motion without hearing. Hill v. Lockhart, 474 U.S. 52, 60 (1985).
A. Ineffective Assistance of Counsel
Petitioner argues that the deputy federal public defenders ("petitioner's counsel") who represented him at trial rendered ineffective assistance by failing to challenge his indictment on the basis that it violated the Ninth and Tenth Amendments. In response, the government contends that petitioner's indictment does not violate the Ninth and Tenth Amendments because the federal narcotics statutes, including those underlying petitioner's convictions, were constitutionally enacted pursuant to Congress's authority under the Commerce Clause. Accordingly, the ...