United States District Court, C.D. California
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
VIRGINIA A. PHILLIPS, District Judge.
I. SUMMARY OF PROCEEDINGS
On September 25, 2013, Matthew Carl Berry ("Movant") filed a "Motion Under U.S.C. § 2255 To Vacate, Set Aside Or Correct A Sentence By A Person In Federal Custody." ("Motion" or "Mot.") ([Civ.] Doc. No. 1.) Respondent filed an Opposition to the Motion on December 6, 2013. ([Civ.] Doc. No. 9.) On January 9, 2014, Movant filed a Reply. ([Civ.] Doc. No. 12.)
II. BACKGROUND FACTS
After a jury trial, Movant was found guilty of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of willfully filing false tax returns, in violation of 26 U.S.C. § 7206(1). ([Crim.] Doc. Nos. 252 (April 17, 2008 Jury Trial Minutes); 256 (Jury Verdict Form).) Movant was sentenced to 60 months imprisonment on the conspiracy count and 16 months of imprisonment for each count of willfully filing a false tax return, for a total of 108 months, to be served consecutively. ([Crim.] Doc. No. 366 (Second Amended Judgment).)
Movant filed a Notice of Appeal on June 28, 2009. ([Crim.] Doc. No. 359.) On December 5, 2011, the Ninth Circuit Court of Appeals affirmed Movant's conviction. ([Crim.] Doc. No. 489; United States v. Berry, 460 F.Appx. 684 (9th Cir. 2011).) The Supreme Court denied Movant's petition for writ of certiorari on October 1, 2012. (See Berry v. United States, 2012 WL 1945723 (U.S. Oct. 1, 2012).)
Section 2255 authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck , 441 U.S. 780, 783-84 (1979). If the record clearly indicates that a movant does not have a claim or that he has asserted "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); see also United States v. Chacon-Palomares , 208 F.3d 1157, 1159 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, the district court must grant an evidentiary hearing [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255)).
A. Grounds for Relief
Movant raises two grounds for relief:
1. Movant's sentence for conspiracy to defraud the United States and for willfully filing a false tax return are based on the same conduct, and therefore, to the extent his sentences on those counts were imposed consecutively, they violated the Double Jeopardy Clause of the Fifth Amendment (Mot. P & A at 12-15);
2. Movant's trial counsel and appellate counsel rendered ineffective assistance of counsel by failing to object on double jeopardy grounds to the imposition of consecutive sentences against him. This ineffective assistance of counsel should excuse him from procedural default on his first ground for relief (Id. at 8-12).
B. Procedural Default
Generally, claims not raised on direct appeal may not be raised in a motion pursuant to § 2255 unless the petitioner shows cause and prejudice, "actual innocence, " or if the claim is related to an ineffective assistance of counsel claim. Massaro v. United States , 538 U.S. 500, 504-05 (2003) ("We hold that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal."); see also Bousley v. United States , 523 U.S. 614, 621-622 (1998). As Movant alleges that he was deprived of ...