United States District Court, E.D. California
ORDER ON 28 U.S.C. § 2255 MOTION
LAWRENCE J. O'NEILL, District Judge.
Defendant Steven Charles Laubly ("defendant") is a federal inmate and proceeds pro se to seek 28 U.S.C. § 2255 ("section 225") and related relief based on ineffective assistance of counsel and other unsupported grounds. This Court considered defendant's papers on the record and DENIES defendant section 2255 and other relief.
After a jury trial during which defendant was represented by counsel, defendant was convicted of several counts of tax evasion and failure to file tax returns and received an eight-year sentence. Defendant appealed his sentence, which the Ninth Circuit Court of Appeals upheld with its December 10, 2012 decision and January 2, 2013 order of mandate. On March 3, 2014, defendant filed his papers comprising 81 pages to assert what this Court construes as unsupported claims of ineffective assistance of counsel and prosecution and Court errors.
Ineffective Assistance Of Counsel
Although defendant's papers include dozens of pages, their main thrust appears to be criticism of trial counsel, including mishandling incriminating and mitigating evidence.
When considering an ineffective assistance of counsel claim, a court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842 (1983); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994), cert. denied, 513 U.S. 1001 , 115 S.Ct. 513 (1995). The first factor is whether the counsel's performance fell below an objective standard of reasonableness considering all of the circumstances. Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2064; Bloom v. Calderon, 132 F.3d 1267, 1270 (9th Cir. 1997), cert. denied, 494 U.S. 1039 , 118 S.Ct. 1856 (1998). A defendant must demonstrate that counsel's performance was deficient and that counsel made errors so serious as not to function as "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A defendant must identify counsel's alleged acts or omissions that were not the result of reasonable, professional judgment considering the circumstances. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 , 117 S.Ct. 135 (1996). There is a strong presumption that counsel's performance fell within the wide range of professional assistance. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586 (1986) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065); Bloom, 132 F.3d at 1270; Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). Judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 677-678, 104 S.Ct. at 2063; Quintero-Barraza, 78 F.3d at 1348; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
The second factor for court consideration is whether the petitioner has affirmatively proven prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067; Bloom, 132 F.3d at 1271. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2066. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2066. In addition, the court can find prejudice only when the outcome would have been different without counsel's errors. See Lockhart, 506 U.S. at 369-370, 113 S.Ct. at 842-843. A court must also evaluate whether the entire proceeding was fundamentally unfair or unreliable because of counsel's ineffectiveness. See Lockhart, 506 U.S. at 369-370, 113 S.Ct. at 842-843; Quintero-Barraza, 78 F.3d at 1345; United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994). A defendant may be granted a windfall, to which he is not entitled, if his/her conviction or sentence is set aside solely because the outcome may have been different but for counsel's errors. Lockhart, 506 U.S. at 369-370, 113 S.Ct. at 842. Thus, if a court finds that counsel's performance fell below an objective standard of reasonableness, and that but for counsel's unprofessional errors, the result of the proceeding would have been different, the court must determine despite the errors and prejudice, whether the proceeding was fundamentally fair and reliable.
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since it is necessary to prove prejudice, any deficiency that does not result in prejudice must necessarily fail.
Generally, trial counsel has the "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. "Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. If an attorney is not aware of facts that would alert him to the need to conduct a particular investigation, a failure to investigate is not deficient performance. Alcala v. Woodford, 334 F.3d 862, 893 (9th Cir.2003)
Moreover, difference in opinion as to trial tactics does not constitute denial of effective assistance, United States v. Mayo, 646 F.2d 369, 375 (9th Cir.), cert. denied sub. nom., Dondich v. United States, 454 U.S. 1127 (1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been ...