United States District Court, E.D. California
ORDER DENYING PETITIONER'S MOTION TO CORRECT, VACATE OR SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. SECTION 2255
ANTHONY W. ISHII, Senior District Judge.
This matter arises from the guilty plea of Petitioner Abel Heriberto Fabian-Baltazar ("Petitioner"). Petitioner is currently incarcerated at the Taft Correctional Institution. Petitioner brings a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 based on ineffective assistance of counsel. Petitioner lists three grounds to support his claim for ineffective assistance of counsel: (1) failure to file a notice of appeal after sentencing as expressly requested by Petitioner, (2) failure to object to the Government's breach of the plea agreement and the safety valve reduction, and (3) failure to file a motion to suppress evidence seized in an unlawful search. For the following reasons, Petitioner's motion pursuant to section 2255 will be denied.
II. FACTS AND PROCEDURAL BACKGROUND
On December 18, 2012, near Madera, California, California Highway Patrol ("CHP") officers conducted a traffic stop on a 2009 Honda Civic. The driver was identified as Abel Heriberto Fabian-Baltazar on his Mexican driver's license and passport. The CHP service canine alerted the officers to the odor of narcotics. Petitioner then consented to a search of the vehicle. A search of the trunk revealed many scented items including Bounce fabric sheets, dish soap, bleach and a bag of laundry detergent, which officers believed were being utilized as masking agents. The trunk also contained a box of Fresh Step kitty litter, which when picked up and shaken, did not feel like kitty litter, but instead bulky items shifted inside the box. Upon opening the litter box, officers found six separate Ziploc bags, all containing packaged quantities of methamphetamine. Petitioner was then placed under arrest. Officers seized the vehicle's registration confirming that the vehicle was registered to Petitioner. Officers also found travel documents revealing that Petitioner had flown into San Jose, California, from Guadalajara, Mexico, on December 13, 2012, with intentions of returning to Mexico, on December 24, 2012.
Petitioner was charged with possession with intent to distribute methamphetamine in violation of Title 21 United States Code §§ 841(a)(1) and (b)(1)(A); and a forfeiture allegation pursuant to Title 21, United States Code § 853. On August 5, 2013, Petitioner and the Government entered a plea agreement in which the Petitioner pled guilty to Count One, possession with intent to distribute 50 grams or more of methamphetamine. Doc. 21 at 2:4-6. On December 16, 2013, Petitioner was sentenced to 120 months in prison. Doc. 27. On June 23, 2014, Petitioner filed this motion pursuant to 28 U.S.C. § 2255. Doc. 29. The motion is ripe for screening.
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 section 2255 Proceedings, when a court receives a section 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).
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir.2003). Under Section 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. The court may deny a hearing if the petitioner's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996), citations omitted. Mere conclusory statements or statements that are inherently incredible in a section 2255 motion are insufficient to require a hearing. United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
A. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants the effective assistance of counsel." Yarborough v. Gentry, 540 U.S. 1, 5 (2003). The Court "must apply a strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance. The [petitioner] bears the burden of showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed [petitioner] by the Sixth Amendment.'" Gonzalez v. Wong, F.3d 965, 987 (9th Cir. 2011).
To establish a constitutional violation for ineffective assistance of counsel actionable under section 2255, petitioner must demonstrate (1) a deficient performance by counsel, and (2) prejudice to petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). To prove deficient performance of counsel, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985). To show prejudice, petitioner must demonstrate that "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. 668 at 694. In the context of a plea bargain, the prejudice requirement is met by showing that, but for counsel's alleged errors, the petitioner would have rejected the plea offer and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); United States v. Alvarez-Tautimez, 160 F.3d 573, 577 (9th Cir. 1998). A court addressing a claim of ineffective ...