ORDER SUMMARILY DISMISSING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; [Doc. No. 105] DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
MICHAEL M. ANELLO, District Judge.
On October 22, 2010, Defendant Miguel Angel Garibay was charged in a five count Second Superseding Indictment with conspiracy to import methamphetamine, in violation of Title 21 of the United States Code, sections 952, 960, and 963; conspiracy to distribute methamphetamine, in violation of sections 841(a)(1) and 846; and possession of methamphetamine with intent to distribute, in violation of section 841(a)(1). See Doc. No. 23. Defendant initially entered a plea of not guilty to the charges and moved to suppress all evidence obtained by the government as a result of a search of his vehicle prior to his arrest. See Doc. No. 35. After conducting an evidentiary hearing, the Court denied the motion to suppress. See Doc. No. 45. Defendant moved for reconsideration, which the Court also denied. See Doc. Nos. 47, 50.
On July 5, 2011, pursuant to a conditional plea agreement, Defendant pleaded guilty to Count 5 of the Second Superseding Indictment, for possession of methamphetamine with intent to distribute. See Doc. No. 23. The Court sentenced Defendant on September 19, 2011 to the minimum mandatory term of imprisonment of ten years. See Doc. No. 79. Pursuant to the terms of his conditional plea, Defendant filed a direct appeal challenging the Court's denial of his motion to suppress. See Doc. No. 77. On December 20, 2012, the Ninth Circuit affirmed the Court's ruling in a memorandum disposition. See Doc. No. 104. The circuit court denied Defendant's petition for a panel rehearing or rehearing en banc. See Doc. No. 103. The Ninth Circuit issued its mandate on March 11, 2013. See Doc. No. 104. On April 29, 2013, the Supreme Court denied Defendant's petition for a writ of certiorari.
Defendant now moves to vacate his conviction pursuant to Title 28 of the United States Code, section 2255, arguing that he received ineffective assistance of trial counsel. See Doc. No. 105. For the reasons set forth below, the Court summarily DISMISSES Defendant's motion.
1. Motion to Vacate, Set Aside, or Otherwise Correct Sentence
Title 28 of the United States Code, section 2255 provides that if a defendant's motion, file, and records "conclusively show that the movant is entitled to no relief" the Court summarily may dismiss the motion without sending it to the United States Attorney for response. See 28 U.S.C. § 2255(b). The rules regarding Section 2255 proceedings similarly state that the Court summarily may order dismissal of a 2255 motion without service upon the United States Attorney only "[i]f it plainly appears from the face of the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief...." Rule 4(a), RULES-SECTION 2255 PROCEEDINGS (West 2009). Thus, when a movant fails to state a claim upon which relief can be granted, or when the motion is incredible or patently frivolous, the district court may summarily dismiss the motion. Cf. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
Here, Defendant's motion is subject to summary dismissal. Defendant alleges in a conclusory fashion that his trial counsel was ineffective. In order to prevail on an ineffective assistance of counsel claim, a defendant must show deficient performance by counsel and prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991). In the context of guilty pleas, "to satisfy the prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990).
Defendant first contends that his trial counsel was ineffective for not challenging the warrantless search of his vehicle. As an initial matter, Defendant fails to allege, much less demonstrate, that but for counsel's purported deficient performance, he would have decided not to plead guilty. Furthermore, the record of this case plainly contradicts Defendant's claim. Trial counsel prepared and filed the brief in support of Defendant's motion to suppress, in which he specifically argued that the search of the vehicle violated Defendant's Fourth Amendment rights. See Motion to Suppress, Doc. No. 35 at 14 ("[A]gents searched the car without probable cause"). At the evidentiary hearing on Defendant's motion, counsel conducted a lengthy cross-examination of the agents who conducted the search. See Transcripts, Doc. Nos. 64, 65. Even after the Court denied Defendant's motion to suppress, trial counsel continued to challenge the constitutionality of the search and seizure by seeking reconsideration of the Court's decision. See Motion for Reconsideration, Doc. No. 47.
Defendant also claims that trial counsel was ineffective for failing to challenge the use of a drug dog during the search and the drug dog's qualifications. However, the record reflects that trial counsel raised each of these issues as grounds for suppressing the contraband recovered from Defendant's vehicle. See Motion to Suppress, Doc. No. 35 at 15 ("To date, the government has produced nothing to show that the canine involved in this case, Kunta [sic], was or is reliable at detecting contraband. The government has thus failed to meet its burden of justifying its warrantless search of the car driven by Mr. Garibay."). The issues were fully heard by the Court during the evidentiary hearing, where trial counsel cross-examined the drug dog's handling agent regarding the search of Defendant's vehicle. See Transcript, Doc. No. 64. As Defendant concedes, trial counsel specifically challenged the drug dog's certification and expertise. Id. at 79-80. That this challenge was ultimately unsuccessful is insufficient to support a claim under Strickland.
In sum, this Court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The Court has reviewed the pertinent portions of the record and concludes that trial counsel's performance in this case did not fall below the objective standard of reasonableness. Further, Defendant fails to demonstrate any prejudice. Because the record "conclusively show[s] that [defendant] is entitled to no relief, " 28 U.S.C. § 2255, the Court summarily dismisses Defendant's motion. See Johnson v. United States, 539 F.2d 1241, 1245 (9th Cir. 1976).
Based on the foregoing reasons, the Court summarily DISMISSES Defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or otherwise correct his sentence. The Court DECLINES to issue a Certificate of Appealability because Defendant has not made a substantial showing of the denial of a constitutional ...