United States District Court, S.D. California
ORDER (1) DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (2) DENYING CERTIFICATE OF APPEALABILITY
(3) DENYING AS MOOT UNITED STATES' MOTION TO EXTEND TIME TO RESPOND [Civil
Docket No. 1, Criminal Docket No. 74]
ROGER T. BENITEZ, District Judge.
Before this Court is Petitioner Alfredo Sepulveda-Iribe's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Docket No. 74). Petitioner now raises four claims, all related to his contention that he was not competent to stand trial. For the reasons stated below, the Motion is DENIED. The United States' Motion to Extend Time to Respond is DENIED AS MOOT.
On June 4, 2008, Petitioner was indicted with a single count of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. (Docket No. 1). Petitioner was deemed competent by U.S. Magistrate Judge Nina L. Stormes on July 22, 2008, and a forensic evaluation report was filed. (Docket No. 13).
This Court scheduled Petitioner's jury trial for December 9, 2008. (Docket No. 26). On the date of trial, Petitioner refused to exit his cell. (Opp'n, Exh. A, Tr. of Proceedings from December 9, 2008 [Dec. 9 Tr.], at 2:6-8). This Court ordered Petitioner removed from his cell. ( Id. at 2:11-12). When Petitioner appeared, this Court noted that he was disheveled and in a wheelchair, and that he was slumped in the chair and not looking at the court. ( Id. at 6:11-15). It further noted that he had been "standing and very much willing to communicate" the day before. ( Id. at 6:16-17). When addressed, Petitioner did not respond to the Court. ( Id. at 6:18-19). The Court referred the matter for further evaluation. ( Id. at 7:9-23). Counsel stated that he had never seen Petitioner in this condition, and that although he had been "lacking in communication" with Petitioner, he believed it had to do with Petitioner's other concerns. ( Id. at 7:24-8:6). At a hearing later that day, this Court noted that a camera in Petitioner's holding cell indicated that Petitioner was doing fine and moving around that afternoon. ( Id. at 19:12-17). Although this Court expressed the view that Petitioner was malingering, it granted defense counsel's request that an additional competency exam be conducted, and that a different psychologist be used. ( Id. at 22-23; Docket No. 28).
A competency hearing was held on January 13, 2009. (Opp'n Exh. B, Tr. of Proc. on Jan. 13, 2009). The psychologist's report concluded Petitioner was competent to stand trial. ( Id. at 2). This Court reviewed all the information submitted and concluded that it was "pretty evident" that he was competent to stand trial. ( Id. at 4:6). The Court stated that Petitioner did attempt to manipulate the system to his benefit and advantage, but that the report concluded that it was "volitional" and that there was no contrary evidence. ( Id. at 4:9-13).
The jury trial commenced on January 14, 2009, and Petitioner was found guilty of the sole count on January 15, 2009. (Docket No. 38). He was sentenced by this Court to 92 months of imprisonment and three years of supervised release on July 6, 2009. (Docket Nos. 49, 51).
Petitioner signed the instant Motion on May 15, 2011. He claims that his counsel was ineffective for failing to move for a new trial because Petitioner was not competent (Ground 1), that this Court erred in allowing the trial to begin (Ground 2), that his counsel should not have proceeded because Petitioner was not competent to begin trial (Ground 3), and the counsel was ineffective for failing to pursue or consider a plea bargain (Ground 4).
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. Procedural Default
The Government points out that Petitioner failed to raise his arguments about competence on direct appeal. (Opp'n at 5-6). Where a petitioner fails to raise an argument on direct appeal, he may not normally raise the issue in a habeas petition. See Bousely v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). This procedural default can be excused if he can show "cause" and "prejudice, " or actual innocence. See Bousely, 523 U.S. at 622. Petitioner has not attempted to make either showing. He has therefore procedurally defaulted this claim. He did not attempt to make such a showing in his reply brief after the Government raised the issue in its response. Additionally, the Court notes that he did not contend he was incompetent on appeal, and admits it was a "cut and dry" case against him. (Memo at 7).
As such, Petitioner has procedurally defaulted on Ground Two, in which he claims it was error for this Court to begin trial. Petitioner's other grounds pertain to accusations of ineffective assistance of counsel (IAC), which he may raise in a Section 2255 motion without first pursuing the issue on direct ...