United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Movant is a federal prisoner proceeding without counsel. Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 On May 22, 2012, movant pled guilty to conspiracy to distribute, and to possess with intent to distribute, methamphetamine. (ECF No. 176.) Movant seeks post-conviction relief alleging that defense counsel was ineffective at sentencing. Respondent's motion to dismiss the § 2255 motion is pending.
Factual Basis for the Plea
Beginning no later than August 6, 2008 and continuing thereafter to on or about August 8, 2008, in the Eastern District of California, the defendant Dimas Manuel Torres Barraza (aka Manual Torres and "Titi"), agreed with co-defendants Jose Miguel Garcia and Maria Ramirez to distribute and to possess with intent to distribute a prohibited controlled substance.
On August 8, 2008, the Sacramento Police Department (SPD), Drug Enforcement Narcotics Team (DENT) learned from a reliable Confidential Informant (CI) that a drug deal was going to happen on a particular day at the Home Depot on Meadowview Rd. in Sacramento. The CI met Ramirez the day before Ramirez told the CI that she could get the CI 5 lbs. of a prohibited controlled substance for $24, 000, but she had to contact her source of supply (SOS) in Stockton. Ramirez confirmed from her source that they would deliver the controlled substance to the Home Depot in Sacramento the following day.
On the following day, Ramirez told the CI that the SOS wanted to do the deal at a residence on 21st Ave. because the vehicle bringing the drugs had a hidden compartment and the source didn't want to do it in an open parking lot. The CI agreed but wanted to see at least a 1 lb. "sample" of the controlled substance before the CI agreed to purchase all 5lbs. Ramirez confirmed with the SOS that this new plan would work out.
Moments later, a Jeep pulled into the parking lot. Ramirez and the CI got into the back seats of the Jeep. The driver of the Jeep was the defendant Dimas Manuel Torres Barraza. Jasmine Vargas, Dimas's girlfriend, was in the passenger seat. A Ford Fusion pulled up in the Home Depot parking lot.
The driver of the Fusion was the co-defendant, Jose Miguel Garcia. Garcia got out of the Fusion, and walked toward the passenger side of the Jeep, carrying an object wrapped in a shirt. Garcia handed Vargas the object.
The arrest signal was given and the police arrested all of the individuals and seized the one pound of controlled substance in the Jeep. The police located in the Ford Fusion approximately 4 lbs of a controlled substance in a hidden dashboard compartment. A laboratory tested the 5 pounds of the controlled substance, which tested positive for methamphetamine, a prohibited controlled substance. The defendant stipulates that he knew the controlled substance was prohibited.
(ECF No. 165 at 10.)
Movant was charged by two-count indictment with conspiracy to distribute and to possess with intent to distribute methamphetamine, and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), for the time frame August 6, 2008, to August 8, 2008. (ECF No. 1.) The two-count superseding indictment also charged movant with conspiracy to distribute, and to possess with intent to distribute, methamphetamine, and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), but for the expanded time frame of June 23, 2007, to August 8, 2008. (ECF No. 110.)
On December 20, 2011, at a change of plea hearing, movant pled guilty to count one of the original indictment on ...