Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rodriguez-Rodriguez v. United States

United States District Court, S.D. California

May 8, 2018

GABRIEL RODRIGUEZ-RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING CERTIFICATE OF APPEAL ABILITY

          HON THOMAS J. WHELAN UNITEA STATES DISTRICT JUDGE

         Order On February 23, 2018, this Court denied Petitioner Gabriel Rodriguez-Rodriguez's motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States Code, Section 2255 (the “Petition” [Doc. 29]). (See Order Denying Mt. to Vacate, Set Aside, or Correct Sentence [Doc. 42].) On April 16, 2018, Petitioner appealed the order and filed a motion for a certificate of appealability (“COA”). (See Notice of Appeal & Mt. for COA [Docs. 43, 44].) On May 3, 2018, the Court of Appeal ordered this court to decide Petitioner's motion. (See USCA Order [Doc. 46].) For the reasons that follow, the Court DENIES Petitioner's request for a COA.

         I. Background

         On or about January 30, 2016, United States Border Patrol agents arrested Petitioner, an alien previously removed from the United States, for re-entering the United States in violation of 18 U.S.C. § 1326. On February 25, 2016, Petitioner agreed to waive indictment to an information charging him with being a removed alien found in the United States in violation of 18 U.S.C § 1326(a) and (b). (See Complaint [Doc. 1]; Waiver of Indictment [Doc. 9].)

         On March 28, 2016, Petitioner plead guilty pursuant to a plea agreement for being a removed alien found in the United States in violation of 18 U.S.C. § 1326. (See Plea Agreement [Doc. 14].[1]) As part of the plea agreement, Petitioner agreed to waive his right to appeal. (Id. ¶ XI.) On July 5, 2016, this Court sentenced Petitioner to 37 months in custody followed by two years of supervised release. (See Judgment [Doc. 22].)

         Petitioner appealed the sentence on October 12, 2016, contending that his trial counsel failed to object to certain factors used to determine his sentence, and failed to file a notice of appeal pursuant to his request. (See Notice of Appeal [Doc. 23].) The Ninth Circuit dismissed the appeal as untimely. (See 1/11/17 USCA Order [Doc. 27].)

         On March 14, 2017, Petitioner filed the Petition alleging ineffective assistance of counsel. On June 6, 2017, Respondent filed a motion for a limited waiver of the attorney-client privilege for the purpose of responding to the Petition. (See Mot. [Doc. 36].) On June 9, 2017, the Court granted Respondent's motion as it found Petitioner waived the attorney-client privilege with respect to claims asserted in the Petition, ordered Petitioner's trial counsel to provide a declaration addressing the claims, and issued an amended briefing schedule on the Petition. (See Waiver Order [Doc. 37].)

         On September 22, 2017, Respondent filed its opposition, including Petitioner's trial counsel's declaration as an exhibit. On October 16, 2017, Petitioner filed his reply. On February 23, 2018, this Court denied the Petition. Petitioner now requests a COA.

         II. Legal Standard

         Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) (“AEDPA”), a federal prisoner may not appeal the denial of a section 2255 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2255 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue certificates of appealability under the AEDPA). In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a “substantial showing” of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To meet this standard, Petitioner must show that: (1) the issues are debatable among jurists of reason; (2) a court could resolve the issues in a different manner; or (3) the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000)); Barefoot v. Estelle, 463 U.S. 880 (1983). Petitioner does not have to show “that he should prevail on the merits. He has already failed in that endeavor.” Lambright, 220 F.3d at 1025 (citation omitted).

         III. Analysis

         Petitioner moved to vacate, set aside, or correct his sentence on the ground that his attorney provided ineffective assistance by: (1) failing to review the plea agreement with Petitioner; (2) failing to file an appeal; and, (3) failing to object to a 12 level sentencing enhancement for a previous state law drug conviction and the validity of his deportation pursuant to that conviction.[2] (Pet. 5, 14.)

         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. In order to prove deficient performance, petitioner must demonstrate that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed 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.

         The second prong of the Strickland test 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.