United States District Court, E.D. California
ORDER DISMISSING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
ANTHONY ISHII, Senior District Judge.
This matter arises from the guilty plea of Petitioner Francheska Brizan ("Petitioner"). On November 11, 2014 Petitioner brought a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. Section 2255. Petitioner's complaint alleges three grounds for relief. The first two grounds allege ineffective assistance of counsel prior to entering into her plea agreement. The third ground is a freestanding claim of factual innocence.
On or about January 1, 2000 and continuing to on or about May 22, 2006 Petitioner had actual knowledge of the fact that her husband and co-defendant, Phillip Brizan, and others had conspired to distribute and possess with intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine. Doc. 485. During that time period, law enforcement officers intercepted calls during wiretaps of cellular telephones used by the Petitioner and her husband. During one of the intercepted phone calls, Petitioner, with knowledge of a 38.5 kilogram cocaine transaction, attempted to conceal the transaction by telling her husband that he "should really change" phones and the other phone has a "totally different address." Doc. 485. at 8.
On August 10, 2006 Petitioner was charged in a twenty-three count Third Superseding Indictment with (1) Conspiracy to Distribute and to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846; and (2) Attempted Possession with Intent to Distribute Cocaine and Aiding and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and 18 U.S.C § 2. Doc. 98. Petitioner was also charged in a single count Superseding Information with Misprision of a Felony, in violation of 18 U.S.C. § 4. Doc. 488. On October 10, 2009 Petitioner and her then counsel signed a plea agreement to plead guilty to Misprision of a Felony in violation of 18 U.S.C. § 4. Doc. 485 at 2. On August 29, 2011 Petitioner was sentenced to four months custody and 12 months supervised release. Doc. 634. As a result of that plea agreement, the government moved to dismiss the charges alleged in the Third Superseding Indictment as to Petitioner. Doc. 684 at 14.
On November 11, 2014 Petitioner brought a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Doc. 687. Petitioner asserts three grounds for relief: (1) that her attorney failed to advise her, in contravention of her Sixth Amendment right to counsel, that the superseding information was defective; (2) that her attorney failed to advise her, in contravention of her Sixth Amendment right to counsel, of her Fifth Amendment privilege against self-incrimination as it relates to the offense of Misprision of a Felony; and (3) that she is actually and factually innocent of the offense Misprision of a Felony.
III. Legal Standard
Title 28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Under Rule 4(b) of the Rules Governing § 2255 Proceedings, when a court receives a § 2255 motion, the court must initially screen it, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief. See United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986). Summary dismissal pursuant to Rule 4 is appropriate only where the allegations of the petitioner are "vague [or] conclusory, " "palpably incredible" or "patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76.
A. Ineffective Assistance of ...