United States District Court, N.D. California
ORDER DENYING IN PART SECTION 2255 MOTION; ORDER REQUIRING RESPONSE FROM GOVERNMENT AS TO SPECIFIC ISSUE
YVONNE GONZALEZ ROGERS, District Judge.
Now before the Court is the motion of defendant Michael Singletary ("petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255. Petitioner argues the following in support of said motion: (1) ineffective assistance of counsel in failing to apprise him of the length of his sentence and the elements of his offenses, and (2) failing to file a notice of appeal as requested; and (3) alleging that the Court applied the sentencing guidelines in error. (Dkt. No. 73.) For the reasons set forth below, the motion is DENIED as to two of these three arguments. As to the single remaining issue, ineffective assistance of counsel for failure to file a direct appeal, the Government is ORDERED to respond.
On December 11, 2013, in conjunction with defendant's filing of a consent to entry of his guilty plea before a magistrate judge (Dkt. No. 57), defendant pleaded guilty to counts one and two of the superseding indictment pursuant to Rule 11(c)(1)(c) (Dkt. No. 56; Dkt. No. 58 ("Plea Agreement")). Those counts charged violations of 18 U.S.C. section 922(g)(1) (felon in possession of a firearm and ammunition) and 18 U.S.C. section 1512(c)(2) (obstruction of justice). Based thereon, Judge Ryu issued a report and recommendation to the undersigned, to which defendant filed no objection. (Dkt. No. 60.) Thereafter, the undersigned sentenced defendant to a term of 144 months, and judgment was entered accordingly. (Dkt. Nos. 66, 67.) Defendant then filed the instant motion on March 26, 2015.
I. LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside, or correct a sentence on the grounds 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(a). A prisoner filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).
Section 2255 provides in part as follows:
(a) 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, 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto [...].
The court conducts an initial review of this motion to determine whether it presents a cognizable claim for relief and requires a response by the government. A district court must summarily dismiss a Section 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
In view of the standard set forth above, the undersigned reviews each of petitioner's three claims and finds two to be without merit. Only petitioner's ineffective assistance claim as to whether his counsel failed to file a direct appeal in this case is not plainly without merit. Each finding is discussed in turn below.
A. WAIVED CLAIMS
Based on the language of the plea agreement, Petitioner has waived his right to petition under Section 2255 on any basis other than ineffective assistance of counsel. Thus, petitioner's challenge to the Court's application of the sentencing guidelines fails.
Petitioner contends that "the Court applied the sentencing guidelines in error and did not consider the appropriate individual sentencing factors under 18 U.S.C. section 3553." (Pet. at 4 (attachment).) Petitioner does not explain what such error was. A correct application of the guidelines is separate and distinct from the further analysis involved in the sentencing factors set forth in Section 3553. Further, petitioner does not indicate how it could have altered his ultimate sentence, given the nature of the plea. The entirety of this argument consists of the single sentence cited above. Regardless, even construing the claim liberally, the Court finds such claim to have been waived. Specifically, petitioner's plea agreement states:
I knowingly and voluntarily agree to waive any right I may have to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. section 2255 or 28 U.S.C. section 2241, except that I reserve my right to claim that my counsel was ineffective in connection with the negotiation of this Agreement or the entry of my guilty plea.
(Plea Agreement ¶ 5.) Petitioner's claim as to the application of the sentencing guidelines has thus been waived. His motion for relief on this basis is therefore DENIED.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner advances two primary arguments under an ineffective assistance of counsel theory. First, petitioner claims that his counsel failed to apprise him of the elements of his offenses, specifically the second count, and relatedly, that his counsel failed to explain to him the sentences attendant to each of his offenses. Second, petitioner contends his counsel failed to provide effective assistance of counsel where counsel did not file a notice of direct appeal, as requested by petitioner. As explained above, these claims were not waived pursuant to his plea agreement. The Court first sets forth the legal standard for claims of ineffective assistance of counsel, and then considers each of petitioner's arguments in turn.
1. Legal Standard
The Sixth Amendment right to counsel guarantees effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a movant must prove both incompetence of counsel and prejudice to movant's case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. Calderon, 52 F.3d 1465, 1469 (9th Cir. 1995). The Strickland two-part test also applies to challenges of guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The movant bears the burden of showing both prongs. Strickland, 466 U.S. at 687. Failure to make the required showing on either the "incompetence" prong or the "prejudice" prong "defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. Put differently, there is no need to evaluate the counsel's performance if the movant fails to show that prejudice resulted from the counsel's alleged errors. Strickland, 466 U.S. at 697; Hill, 472 U.S. at 54.
In order to demonstrate deficient performance, a habeas petitioner is required to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. The relevant query is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. To show prejudice in the context of guilty pleas, the petitioner must demonstrate ...