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Lizarraga v. United States

United States District Court, S.D. California

January 30, 2014

MILTON LIZARRAGA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Criminal Docket No. 430]

ROGER T. BENITEZ, District Judge.

Before this Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Docket No. 430). For the reasons stated below, the Motion is DENIED.

BACKGROUND

Petitioner was part of a group of defendants arrested on August 25, 2010 by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in connection with a planned robbery of a stash house believed to contain large quantities of cocaine.

An ATF confidential informant told an individual, "A.M., " that he had knowledge of a cocaine stash house and was looking for someone to assist in the robbery of cocaine. The informant and an undercover ATF agent spoke to A.M. and one of Petitioner's co-defendants to form a plan to rob the stash house. On the day of the arrest, Petitioner and other co-defendants entered a Big 5 Sporting Goods store where someone purchased BB guns. Petitioner and others then proceeded to a warehouse, where they were arrested by law enforcement.

Petitioner's counsel argued that Petitioner left the store before the guns were purchased, and never saw the purchase. (Sent. Mem. at 11). Petitioner maintained that he did not know about the planned robbery until he was in a car going to the warehouse. ( Id. ) He claimed that he did not know about the BB guns until they were at the warehouse, right before everyone was arrested. (Sent. Mem. at 11).

Petitioner was tried before a jury on three counts. He was convicted of conspiracy to affect commerce by robbery and extortion, in violation of 18 U.S.C. § 1951(a). He was acquitted of possession of a firearm in furtherance of a crime of violence and a drug trafficking offense, and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2. Finally, the jury failed to reach a verdict as to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. (Jury Verdict).

At sentencing, the prosecutor and defense counsel informed this Court that Petitioner was going to forgo his right to appeal in exchange for the Government's agreement not to retry Petitioner on the drug charge. Petitioner did not sign an appellate waiver, but the Government waited to dismiss the charge until after the time to file a notice of appeal had expired.

Petitioner is a citizen of Mexico who has lived in the United States since he was nine years old. Although Petitioner indicates at various points in his Motion that he cannot speak or write in English, it is apparent from the record that Petitioner does speak and understand English. Petitioner attended school in the United States through the eleventh grade. (Sent. Mem. at 7). Petitioner has addressed this Court without an interpreter and wrote a letter to this Court before sentencing. ( See Sent. Hearing Tr. at 17:17-18:3; Sent. Mem., Ex. 6). Petitioner's filings indicate that he is capable of clearly communicating in English. His attorney swears under oath that she determined that he was fluent in speaking, writing, and understanding English. (Dobro Decl. at ¶ 3). This Court did, however, take into account that Petitioner is not a lawyer and is proceeding pro se when considering this Motion.

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).

DISCUSSION

A. Legal Standard for Ineffective Assistance of Counsel

All of Petitioner's claims before this Court pertain to allegations of ...


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