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United States v. Bermudez

United States District Court, N.D. California, San Jose Division

May 20, 2014



EDWARD J. DAVILA, District Judge.

Presently before the Court is a Motion to Vacate, Set Aide, or Correct a Sentence by filed by federal prisoner Nicole Bermudez ("Petitioner") pursuant to 28 U.S.C. § 2255. See Docket Item 69. Petitioner challenges her sentence on the grounds that she did not receive effective assistance of counsel at trial and sentencing, that her sentence is substantively unreasonable, and that she is actually innocent.

This Motion will be denied for the reasons discussed below.


On February 24, 2010, Petitioner was indicted on one count of conspiracy in violation of 18 U.S.C. §§ 1341 and 1343; five counts of wire fraud in violation of 18 U.S.C. § 1343; and six counts of engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957(a). See Docket Item 1. Count one carried a maximum penalty of five years imprisonment, counts two through six 20 years imprisonment, and counts seven through twelve 10 years imprisonment, respectively. Id . In addition, the charges carried up to a $250, 000 fine, three years supervised release, and $100 special assessment. Id.

Petitioner's initial appearance was before Magistrate Judge Trumbull on April 1, 2010. See Docket Item 82, Ex. A. Petitioner appeared without counsel and indicated that she intended to represent herself. Id. at 8. The court then inquired into Petitioner's mental health history, educational background and her understanding of the risks of self-representation. Id. at 12-14. The court read the entire indictment against Petitioner aloud, including potential maximum penalties. Id. at 17-29. Petitioner again reiterated a desire to represent herself. Id. at 35.

Petitioner's trial began on August 31, 2010, before Judge James Ware after the court denied Petitioner's request for a continuance based on typographical changes to the indictment. Id. at 12, Ex. C. Petitioner represented herself at trial. A jury returned convictions on all counts. Id. at Ex. D.

Petitioner appeared without counsel for sentencing on December 6, 2010. Id. at Ex. F. The court asked Petitioner if she was comfortable continuing to represent herself for sentencing, but Petitioner proceeding with the hearing. Id. at 28. Petitioner was sentenced to 151 months imprisonment and 3 years supervised release, and was ordered to pay $2, 488, 613.38 in restitution and a $1, 200 special assessment. See Docket Item 57. An Amended Judgment was filed on December 14, 2010. See Docket Item 59.

Petitioner did not appeal from the Amended Judgment. She filed this motion on December 9, 2011.


A Motion pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that... there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, [u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock , 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C.§ 2255) (emphasis omitted). A court need not hold an evidentiary hearing where the prisoner's allegations, when viewed against the records, either do not state a claim for relief or are so palpably incredible as to warrant summary dismissal. United States v. McMullen , 98 F.3d 1155, 1159 (9th Cir. 1996); Shah v. United States , 878 F.2d 1156, 1158 (9th Cir. 1989), cert. denied, 493 U.S. 869 (1989). "Merely conclusory statements in a § 2255 motion are not enough to require a hearing." United States v. Johnson , 988 F.2d 941, 945 (9th Cir. 1993); see also United States v. Howard , 381 F.3d 873, 877, 879 (9th Cir. 2004). While a petitioner is not required to allege facts in detail, he or she must make factual allegations. United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir. 1980). Accordingly, an evidentiary hearing is required only if: 1) a petitioner alleges specific facts which, if true, would entitle him to relief; and 2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. Howard , 381 F.3d at 877.


Petitioner offers three grounds in support of her motion. In the first, Petitioner argues that, as a criminal defendant representing herself, she received ineffective assistance of counsel. In a related argument, she contends that the trial court failed to properly conduct a competency hearing, and that it erred in finding her competent to represent herself and in declining to appoint her advisory counsel. In the second ground, Petitioner argues that her sentence is substantively unreasonable because it is longer ...

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