United States District Court, N.D. California
ORDER TO SHOW CAUSE RE: DKT. NO. 482
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
the court is the motion of defendant John Devalier Daniels,
appearing pro se, for an order under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence. For the reasons
set forth below, the court orders the government to show
cause why relief should not be granted on Ground Three of the
§ 2255 motion.
is currently serving a sentence imposed by this court. On
June 18, 2015, a grand jury returned a 27-count superseding
indictment charging Daniels and three codefendants with
racketeering conspiracy in violation of 18 U.S.C. §
1962(d) (Count One), which was initially charged against two
of the codefendants in the original 23-count indictment filed
July 19, 2012. The superseding indictment also charged
Daniels and the third codefendant with murder in aid of
racketeering in violation of 18 U.S.C. §§
1959(a)(1) and 2 (Count 24); use of a firearm in furtherance
of a crime of violence causing death in violation of 18
U.S.C. § 924(j)(1) (Count 25); and use of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count 26).
initial codefendants entered into plea agreements and were
convicted and sentenced on March 6, 2018. A second
superseding indictment was filed January 25, 2018, against
defendant Daniels and his remaining codefendant which charged
Daniels with the same substantive offenses charged against
them in the first superseding indictment. On May 2, 2018,
Daniels's codefendant entered a change of plea pursuant
to a written plea agreement under Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. The court proceeded with
a pretrial conference only as to Daniels and issued written
rulings on the disputed pretrial matters on May 4, 2018.
7, 2018, Daniels entered a plea of guilty to the racketeering
conspiracy charged in Count One of the Second Superseding
Indictment pursuant to a Rule 11(c)(1)(C) plea agreement.
Dkt. no. 410 (“Plea Agr.”). On September 5, 2018,
the court sentenced Daniels to a term of imprisonment of 168
months; 5 years of supervised release; a $100 special
assessment; and $3, 069.00 in restitution, jointly and
severally with his codefendant. The remaining counts against
Daniels were dismissed on the government's motion.
September 3, 2019, Daniels, appearing pro se, filed a motion
under 28 U.S.C. § 2255 to vacate, set aside or correct
the sentence. Pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts, 28 U.S.C. foll. § 2255, the court proceeds with
a preliminary review of the § 2255 motion.
asserts the following grounds for relief pursuant to §
2255: (1) the sentence is based on a miscalculated guideline
range that incorrectly assigned criminal history points to
prior convictions that formed part of the pattern of
racketeering underlying the RICO offense; (2) the judgment
fails to reflect the time served on the predicate acts under
RICO which were part of the same course of conduct; (3)
counsel provided ineffective assistance by failing to
challenge the sentence that counted the prior convictions for
predicate acts in the criminal history calculation, failing
to apply the time served on the predicate offenses toward the
sentence on the offense of conviction, and failing to offer
Daniels's psychiatric history in mitigation.
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
Sixth Amendment right to counsel guarantees effective
assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 686 (1984). A successful claim of ineffective
assistance has two components. First, a defendant must show
that counsel's performance was deficient. Id. at
687. Deficient performance is representation that falls below
an objective standard of reasonableness. Id. at 688.
Second, having established deficient performance, the
defendant must show he was prejudiced by counsel's
errors; that is, there must be a reasonable probability that
but for counsel's unprofessional errors, the result of
the proceeding would have been different. Id. at
694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
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 ...