ORDER DENYING HABEAS RELIEF PURSUANT TO 28 U.S.C. § 2255 [Docket No. 1]
DEAN D. PREGERSON, District Judge.
Petitioner Roberto Garcia has filed for habeas relief pursuant to 28 U.S.C. § 2255. (Docket No. 1.) In August 2010, Petitioner was sentenced in state court for sale or transportation of methamphetamine. (United States Probation Office Presentence Report ("PSR") ¶ 52, Government's Opposition ("Opp'n") Ex. I (under seal).) In December 2011, this Court sentenced Defendant to 46 months imprisonment for being an illegal alien who entered the United States following deportation, in violation of 8 U.S.C. § 1326(a). Petitioner states that at the time he was arraigned for his federal charge, April 2011, he had nine months remaining on his August 2010 state court sentencing. (Mot. attachment at 1.) Petitioner seeks habeas relief because his counsel failed to request that his federal sentence run concurrently with his state sentence.
II. Legal Standard
A petitioner may move to vacate, set aside, or correct his/her sentence "upon the ground 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). If any of these grounds exist, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, [u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock , 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255) (emphasis and alternation in original). "The district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Mejia-Mesa , 153 F.3d 925, 931 (9th Cir. 1998) (quoting United States v. Burrows , 872 F.2d 915, 917 (9th Cir.1989)).
Sentencing Guideline § 5G1.3(c) states:
(Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
The amended application notes for § 5G1.3(c) state that "the court should consider the following" in determining whether to order concurrent or consecutive sentences:
(I) The factors set forth in 18 U.S.C. 3584 (referencing 18 U.S.C. 3553(a)); (ii) The type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) The time served on the undischarged sentence and the time likely to be served before release; (iv) The fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) Any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
Because this Court did not address the issue, Petitioner's federal sentence runs consecutive to his state court sentence. 18 U.S.C. § 3584. Petitioner asks for habeas relief on grounds that this Court committed plain error by not considering his prior sentence and his counsel provided ineffective assistance by not alerting this court to the prior sentence, and, thus, the possibility of concurrent sentencing.
A. Plain Error
To show plain error, Petitioner ...