United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
[Criminal Docket No. 393]
ROGER T. BENITEZ, District Judge.
Before this Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed by Petitioner Emilio Reyes-Bosque. (Docket No. 393). For the reasons stated below, the Motion is DENIED.
Petitioner and his codefendants were arrested on December 2, 2005 in connection with the discovery of 21 undocumented aliens at a stash house in Brawley, California. (Docket No. 1). Petitioner was charged in a Superseding Indictment on February 7, 2008 with ten counts, including 1) aiding aggravated felon aliens to enter the United States; 2) conspiracy to bring in, transport and harbor aliens; 3) four counts of bringing in illegal aliens for financial gain; and 4) four counts of harboring illegal aliens. (Docket No. 279).
Approximately one year after his codefendants were separately tried and convicted, Petitioner proceeded to trial on February 12, 2008, and was convicted by a jury of all counts on February 20, 2008. (Docket No. 297). Petitioner was sentenced by this court to 210 months imprisonment on May 19, 2008. (Docket Nos. 316, 317). The conviction was affirmed by the Ninth Circuit. United States v. Reyes-Bosque, 596 F.3d 1017, 1021 (9th Cir. 2010). Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence on January 3, 2012.
II. LEGAL STANDARD
A district court may "vacate, set aside or correct" the sentence of a federal prisoner that was imposed in violation of the Constitution or a law of the United States. 28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing before denying a § 2255 motion, unless it is conclusively shown that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b). However, if it is clear the petitioner has failed to state a claim, or has "no more than conclusory allegations, unsupported by facts and refuted by the record, " a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
A. Legal Standard for Ineffective Assistance of Counsel
All of Petitioner's claims before this Court pertain to allegations of ineffective assistance of counsel.
A petitioner asserting an ineffective assistance of counsel (IAC) claim must demonstrate that (1) defense counsel's performance was deficient; and (2) this deficient performance prejudiced the petitioner's defense. Strickland v. Washington, 466 U.S. 668, 690-92 (1994). To establish performance is deficient, Petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Id. at 687-688. Because of the difficulties inherent in evaluating the performance of counsel after the fact, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To demonstrate prejudice, a defendant must show that there is a "reasonable probability" that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
A. Ineffective Assistance of Counsel - Aiding and Abetting Liability
Petitioner initially argued that his conviction was invalid because he was convicted for aiding and abetting without a corresponding conviction of a principal for violating § 1327. (Mot. at 3). He separately contended that both his trial and appellate counsel are ineffective for failing to raise this issue. ( Id. at 4) In his Reply, Petitioner stated that he "abandons" this ground. However, since Petitioner did not clarify if he was also abandoning the related ineffective assistance of counsel claim, this Court will briefly address the matter.
It is established that counsel is not ineffective for failing to argue a meritless claim. See, e.g., Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir.2012) ("It should be obvious that the failure of an attorney to raise a meritless claim is not prejudicial") (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)); Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008) (trial counsel is not ineffective for failing to raise a meritless objection). The Ninth Circuit has clearly rejected Petitioner's argument regarding aiding and abetting on multiple occasions. "[A] defendant can be convicted of aiding and abetting even if a principal is never identified of convicted." United States v. Powell, 806 F.2d 1421, 1424 (9th ...