United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [DOC. 68] AND CERTIFICATE OF APPEALABILITY
THOMAS J. WHELAN, District Judge.
Petitioner Pascual Francisco-Pascual ("Petitioner"), a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the "Motion"). The United States of America ("Respondent") opposes.
The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1 (d)(1). For the reasons discussed below, the Court DENIES Petitioner's motion. ( See Mot. [Doc. 68].)
On November 18, 2009, a one-count Indictment was filed in the Southern District of California, charging Petitioner with violations of 8 U.S.C. § 1326 (a) and (b). ( Opp'n [Doc. 76] at 1:24-26.) Prior to trial, Petitioner was offered a plea deal of 57 months, which he subsequently refused. On August 11, 2010, a jury found Petitioner guilty on all charges. ( Opp'n. at 2:1-2.) On January 12, 2011, this Court sentenced Petitioner to a term of 77 months in prison. ( Mot. [Doc. 68] at 2.)
On July 12, 2013, Petitioner filed the Motion, claiming ineffective assistance of counsel. Respondent opposes the Motion.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal sentencing court is authorized to discharge or re-sentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. This statute is intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. See United States v. Addonizio , 442 U.S. 178, 185 (1979); Hernandez v. Campbell , 204 F.3d 861, 864 n.4 (9th Cir. 1999).
The remedy available under section 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. See United States v. Addonizio , 442 U.S. 178, 184-85 (1979). But this remedy does not encompass all claimed errors in conviction and sentencing. Id. at 187. A mere error of law does not provide a basis for collateral attack unless the claimed error "resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States , 67 F.3d 761, 763-64 (9th Cir. 1995) (quoting United States v. Timmreck , 441 U.S. 780, 783-84 (1979)).
Petitioner argues that he is entitled to vacate, set aside, or correct his sentence due to ineffective assistance of counsel. Respondent contends that Petitioner fails to establish the elements of an ineffective-assistance-of-counsel claim due to lack of factual support. ( Opp'n at 6.)
In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court established a two-prong test to determine whether counsel's assistance was so defective as to require reversal of a conviction. First, petitioner must show that counsel's performance was deficient. Id. at 687. This prong requires petitioner to demonstrate that counsel "made errors so serious that counsel was not functioning as the counsel' guaranteed to the defendant by the Sixth Amendment." Id . In other words, petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances presented in a particular case. Id. at 688. The Supreme Court further elaborated that there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 699.
Strickland's second prong requires petitioner to prove that counsel's deficient performance prejudiced the defense. Strickland , 466 U.S. at 687. In order to prove prejudice, petitioner must demonstrate that counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id . Otherwise stated, the petitioner must demonstrate that there is a reasonable probability that, but for counsel's defective assistance, the result of the proceeding would have been different. Id. at 694.
Petitioner argues that his counsel's ineffectiveness arose from (1)advising him proceed to trial in the face of overwhelming evidence of his guilt and without any viable defense; and (2) advising him to decline the plea while failing to visit him more than twice during the pretrial ...