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United States v. Leus

United States District Court, Ninth Circuit

June 25, 2013



DEAN D. PREGERSON, District Judge.

This matter comes before the court on Petitioner Joel Jareno Leus ("Petitioner")'s Motion to Vacate, Set Aside, or Correct Sentence ("Petitioner's Motion") pursuant to 28 U.S.C. § 2255. Having reviewed the materials submitted by the parties and considered the arguments advanced therein, the Court DENIES Petitioner's § 2255 motion.


On May 22, 2009, pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), Petitioner pleaded guilty to possession of child pornography, a violation of 18 U.S.C. § 2252A (a)(5)(B) ("§ 2252A"). On October 5, 2009, Petitioner was sentenced to 84 months' imprisonment. (Government's Opposition to Petitioner's Motion ("Opp'n")at 2.)

Petitioner was originally indicted for a different offense: using the internet to attempt to induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). Petitioner's counsel, Kerry Bensinger ("Counsel"), filed pre-trial motions to (1) suppress evidence due to violations of the Fourth and Fifth Amendment, and (2) dismiss the indictment. (CR Dkt. Nos. 24, 25.) At a hearing held on May 11, 2009, this court indicated that it was inclined to deny the motion to suppress and to grant the motion to dismiss. In response, the government charged Petitioner with one count of possession of child pornography in violation of § 2252A, to which Petitioner would ultimately plead guilty. (Dkt. No. 42.) Petitioner's Counsel and the government then proceeded to negotiate the plea agreement that Petitioner would later accept. (Opp'n, Ex. C at 2-3.)

During plea proceedings, Petitioner agreed to the government's Offer of Proof stating that Petitioner knowingly possessed at least 600 pictures of child pornography and gained possession of these pictures through interstate or foreign commerce by computer. (Opp'n, Ex. A, 5/22/09 RT: 17-18.) Petitioner waived his right to appeal any sentence imposed by the court and the right to collaterally attack the conviction or sentence, unless such attack was based on an ineffective assistance of counsel claim. (Opp'n, Ex. A, 5/22/09 RT: 13-14.) Petitioner indicated that he understood these rights, and was informed that such waivers are generally enforceable in court. (Id.) Petitioner further acknowledged that he reviewed the plea agreement with Counsel, that his signature, binding him to the plea agreement, was voluntary and free, and that he had not been coerced to plead guilty. (Opp'n, Ex. A, 5/22/09 RT: 4, 12, 15.)

Petitioner's instant motion claims ineffective assistance of counsel based on Counsel's alleged (1) failure to raise the unconstitutionality of the search and seizure of evidence and of Petitioner's arrest, (2) failure to allow Petitioner reasonable time to review and research the plea agreement, and use of coercion and threats to obtain Petitioner's waiver of his rights, and (3) "highly discouraging" advice that Petitioner not file a Notice of Appeal. (Mot. at 5-6).

Petitioner's motion also challenges his conviction on the basis of (1) 4th Amendment violations and (2) "the unconstitutional failure of the prosecution to disclose information and/or evidence favorable to the defendant.". (Id.)[1]


A defendant may be entitled to relief under Section 2255 if the sentence imposed: (1) violated the Constitution or the laws of the United States; (2) was given by a court without jurisdiction to do so; (3)exceeded the maximum authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If "the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, " a resolution may be reached without an evidentiary hearing. 28 U.S.C. § 2255(b); United States v. Mejia-Mesa , 153 F.3d 925, 931 (9th Cir. 1998) (district court may deny a Section 2255 motion where movant's allegations "are so palpably incredible or patently frivolous as to warrant summary dismissal." (quotation and citation omitted)). When a petitioner alleges ineffective assistance of counsel, an evidentiary hearing is necessary only if, assuming the petitioner's factual allegations as true, the ineffective assistance of counsel claim could prevail. U.S. v. Blaylock , 20 F.3d 1458, 1465 (9th Cir. 1994).


A. Ineffective Assistance of Counsel

Under the Sixth Amendment, all criminal defendants enjoy the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686-700 (1984). In Strickland, the Supreme Court held that in order to show ineffective assistance of counsel, a defendant must demonstrate (1) that counsel's performance was deficient and fell below an objective standard of reasonableness and (2) the defendant was prejudiced as a result and deprived of a fair trial. Id. at 687. This two-part standard applies to ineffective-assistance claims arising out of the plea process. Hill v. Lockhart , 474 U.S. 52, 57 (1985); Nunes v. Mueller , 350 F.3d 1045, 1052 (9th Cir. 2003). In assessing counsel's ...

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