MEMORANDUM AND ORDER RE: FIRST AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 LU,
Defendant Bao Lu was convicted and sentenced as an adult in federal district court for crimes committed when he was sixteen years old. The facts and procedural background of the case are well known to the parties and do not bear repeating.
Defendant moves for the court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 due to: (1) alleged violations of his Fifth Amendment right to due process; (2) alleged violation of his Sixth Amendment right due to ineffective assistance of counsel; (3) the court's alleged lack of subject matter jurisdiction due to the government's failure to certify defendant for adult proceedings pursuant to the Juvenile Justice and Delinquency Act ("JDA"), 18 U.S.C. § 5031 et seq.; and (4) alleged violation of his Eighth Amendment right to be free from cruel and unusual punishment due to the court's sentence of life without parole.
I. Fifth Amendment Claims Involving the Hobbs Act Under 28 U.S.C. § 2255, a prisoner "in custody under
sentence of a court established by Act of Congress" may move the court that imposed his sentence to vacate, set aside, or correct the sentence on the grounds 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." 28 U.S.C. § 2255.
"A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default." United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)); see also Massaro v. United States, 538 U.S. 500, 504 (2003) ("[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.") "The procedural-default rule is neither statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro, 538 U.S. at 504.
Defendant contends that his Fifth Amendment right to due process was violated when: (1) the jury convicted him of a Hobbs Act robbery conspiracy in the face of a trial record that allegedly demonstrated that no Hobbs Act robbery was planned or committed; (2) the prosecutor allegedly misstated the law concerning the elements of a Hobbs Act violation; and (3) the trial court allegedly failed to instruct the jury on the element of intent. Defendant concedes that these claims were available on appeal but were not raised.*fn1 (See Def.'s Mot. at 41 , 47 n.11 (Docket No. 1567); Def.'s Reply at 7, 16 (Docket No. 1596).) Therefore, these claims are barred absent a showing of cause and prejudice or actual innocence.
The Ninth Circuit has noted that "[c]onstitutionally ineffective assistance of counsel constitutes cause sufficient to excuse a procedural default." Ratigan, 351 F.3d at 964-65. For the reasons discussed in Section II below, defendant has failed to show constitutionally deficient representation of counsel for purposes of establishing cause to excuse his procedural default. He has also failed to show actual innocence.
"'Actual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (internal quotation marks and citation omitted). "[T]he mere fact of an improper instruction is not sufficient to meet the test for actual innocence." See Stephens v. Herrera, 464 F.3d 895, 899 (9th Cir. 2006) ("[T]he mere fact of an improper instruction is not sufficient to meet the test for actual innocence.").
Here, defendant fails to satisfy his burden of showing actual innocence. Thus, because defendant failed to raise his Fifth Amendment claims on appeal and no exception has been established, defendant has procedurally defaulted and cannot now raise those claims in his § 2255 motion. Accordingly, to the extent defendant's motion based is upon these claims, it will be denied.
II. Sixth Amendment Claims for Ineffective Assistance of Counsel While the procedural default rule is designed to "conserve judicial resources" and to "respect the law's important interest in the finality of judgments," the Supreme Court has held that "requiring a criminal defendant to bring ineffective-assistance-of-counsel claims on direct appeal does not promote these objectives." Massaro, 538 U.S. at 504. Accordingly, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not petitioner could have raised the claim on direct appeal." Id.
"Under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial." Id. at 505. Under the first prong, a defendant must show that a counsel's representation falls "below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 687-88. There is a "strong presumption that counsel's performance falls within the wide range of professional assistance."* Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland." Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).
As for the second prong, "Strickland asks whether it is 'reasonably likely' the result would have been different." Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696). "This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.'" Id. (quoting Strickland, 466 at 693, 697). "The ...