United States District Court, N.D. California
ORDER RE (1) SECTION 2255 AND GOVERNMENT RESPONSE,
(2) RECONSIDERATION, AND (3) APPOINTMENT OF COUNSEL RE: DKT.
NOS. 572, 576
DONATO, UNITED STATES DISTRICT JUDGE.
Mendoza Rodriguez is currently serving a sentence in a
federal prison after pleading guilty to one count of
conspiracy to distribute, and to possess with intent to
distribute, a controlled substance, and one count of
possession of a firearm in furtherance of a drug trafficking
crime. Rodriguez pled guilty under a “C” plea
agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). Dkt. No. 252. Among other terms in the
agreement, he admitted that the total amount of controlled
substances attributable to him for the purposes of his
relevant conduct was twelve pounds of methamphetamine
(actual) and 528 grams of cocaine. Id. ¶ 2.
Rodriguez also agreed to accept a term of imprisonment
between 180 and 360 months, or 15 to 30 years. Id.
conspiracy count carried a mandatory minimum prison term of
10 years, and the firearm count carried a mandatory
consecutive prison term of 5 years. Id. ¶ 1.
After a detailed colloquy at the sentencing hearing, the
Court accepted the C plea agreement, and imposed a term of
200 months in custody based on 140 months for the conspiracy
count and 60 months for the firearm count, to be served
consecutively. Dkt. No. 558. This sentence was just 20 months
longer than the low end of custody Rodriguez agreed to in his
days before the limitations period lapsed, Rodriguez filed
pro se a motion to vacate or set aside the sentence under 28
U.S.C. Section 2255. Dkt. No. 564. He filed an amended motion
several weeks later. Dkt. No. 572. He did not clear the
amended motion with the Court before filing it, but in light
of his pro se status, the Court accepts the new motion for
consideration here. Overall, it is substantively the same as
the original motion. Rodriguez has also asked for
reconsideration of the order declining to appoint counsel for
him in this post-conviction proceeding. See Dkt.
Nos. 575, 576.
SECTION 2255 MOTION
2255 provides, in pertinent part, that a federal prisoner may
ask the sentencing court to vacate, set aside or correct his
sentence if it was imposed in violation of the Constitution
or laws of the United States. 28 U.S.C. § 2255(a).
Rodriguez says that his lawyer was ineffective with respect
to her advice on the plea agreement and potential sentences,
and her failure to file a motion to suppress a search warrant
and a notice of appeal.
prevail on an ineffective assistance of counsel claim,
Rodriguez must show (1) that his representation fell below
objectively “reasonabl[e] effective assistance”
and (2) a reasonable probability that the result was
prejudiced by counsel's actions. Strickland v.
Washington, 466 U.S. 668, 687-688 (1984). Deficient
performance requires a demonstration that his lawyer made
mistakes so serious that she could not be said to be acting
like an attorney guaranteed by the Sixth Amendment.
Id. at 687. The inquiry is not what counsel might
have done, but whether her actual choices were reasonable.
Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.
1998). These are high standards, and there is a “strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Allegations that are
merely conclusory are insufficient to support a claim for
ineffective assistance of counsel. United States v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The
Strickland tests apply to claims of ineffective
assistance of counsel during a guilty plea. Hill v.
Lockhart, 474 U.S. 52, 58 (1985).
when liberally construed, most of Rodriguez's claims do
not warrant relief under Section 2255. To start, Rodriguez
says that his plea agreement was involuntary or uninformed
because his attorney made promises about sentencing that did
not pan out. Nothing in the motion, or in the Court's
independent review of the record, shows anything that might
amount to a constitutional deprivation of effective counsel
on this claim. Getting a sentence that exceeded what
Rodriguez hoped for or expected is not a per se indicator of
ineffective assistance. See Doganiere v. United
States, 914 F.2d 165, 168 (9th Cir. 1990). Rodriguez
does not allege that his lawyer failed to disclose, or misled
him about, the mandatory minimum term, or the possibility of
a sentence beyond that, when providing advice on taking a
Rodriguez had alleged that, the result would not be
different. That is because the Court expressly advised
Rodriguez before accepting his guilty plea that (1) he faced
a combined 15-year mandatory minimum sentence for the two
counts, and (2) he might get a sentence he was not expecting
but would not be able to withdraw his plea for that reason if
it was within the agreed-upon range of 15 to 30 years. Plea
Tr., Dkt. No. 560 at 16-19. The Court also advised Rodriguez
before accepting his plea that “any estimates of how
much time you might spend in prison or any estimates about
the rest of your sentence that you have in your mind, that
you either come up with independently or that you have
discussed with other people, may not be accurate. However,
you will not be allowed to withdraw your guilty plea if the
sentence I ultimately impose is consistent with your plea
agreement, but different from any predictions or estimates
you currently have in mind.” Id. at 19.
Rodriguez said he understood this statement, and the facts of
a 10-year mandatory minimum term followed by a consecutive
5-year mandatory term. Id. at 17, 19. These
mandatory minimums and the Court's discretion to sentence
Rodriguez within the agreed-upon 15 to 30-year range were
also disclosed in the written plea agreement, which Rodriguez
said he understood before he signed it. Id. at 10;
Dkt. No. 252 ¶¶ 1, 7-8.
Section 2255 relief on this basis is denied. There are no
grounds for an ineffective assistance claim in these
circumstances. Gonzalez v. United States, 33 F.3d
1047, 1051-52 (9th Cir. 1994). An evidentiary hearing is not
required in light of this record. Doganiere, 914
F.2d at 168.
other plea-related claims are also unavailing. He says that
his lawyer passed up a better plea offer, and didn't tell
him about other offers. See Dkt. No. 572 at 9, 15.
But the Court expressly confirmed before accepting his plea
that his lawyer had shared with him “all the formal
plea offers by the government.” Dkt. No. 560 at 12.
Nothing in the record or the motion suggests otherwise.
Rodriguez also says he was prejudiced by not getting the plea
agreement in Spanish, but the record shows that he had a
Spanish language interpreter at every step of the relevant
proceedings, including when reading the plea agreement before
signing it and in court. See Dkt. No. 252 at 10;
Dkt. No. 560 at 2, 5, 10-12. That forecloses a language-based
challenge to his plea or sentence. United States v.
Martinez, 143 F.3d 1266, 1271 (9th Cir. 1998).
next contends his lawyer was ineffective for not challenging
a search warrant used to obtain firearms, drugs and other
evidence from his residence. To prevail on a claim of
ineffective assistance of counsel for failing to file a
motion to suppress evidence seized in an unlawful search, a
prisoner must also prove that (1) his Fourth Amendment claim
was meritorious, and (2) there is a reasonable probability
that the result of the proceeding would have been different
absent the excludable evidence. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986).
has not satisfied either requirement. The only argument he
makes is that the warrant was “tainted” because
it listed his address as “unit #2, ” when in fact
he resided in “unit #3, ” which is where the
search actually happened. Dkt. No. 572 at 6, 8. Even if this
is fully credited as true, such a minor technical error is
not inherently enough to invalidate a search. See United
States v. Mann, 389 F.3d 869, 876-77 (9th Cir. 2004),
cert. denied, 125 S.Ct. 1719 (2005); United
States v. Turner, 770 F.2d 1508, 1511 (9th Cir. 1985).
The record shows that law enforcement agents had surveilled
Rodriguez's residence, and monitored his phone calls and
GPS location records, for months prior to executing the
warrant. Dkt. No. 1 (DEA affidavit for criminal complaint);
Dkt. No. 252 ¶ 2. In light of the totality of these
circumstances, it cannot reasonably be said that the warrant
lacked sufficient particularity, or that Rodriguez would have
prevailed at a suppression hearing. See Bailey
v. Newland, 263 F.3d 1022, 1029 (9th Cir.
2001). It is also worth noting that Rodriguez joined
a motion to suppress electronic surveillance evidence, which
he dropped out of after pleading guilty. See Dkt.
Nos. 230, 241, 266 at 1 n.1. While not a dispositive fact by
any means, this indicates that his lawyer was engaged and
active in evaluating challenges to the government's
surveillance and search evidence.
Section 2255 result is different for the notice of appeal
issue. In the amended motion, Rodriguez says that he
expressly asked his lawyer to file a notice of appeal, and
had received assurances that she was handling it. In fact,
she did not file a notice, and Rodriguez was left to file his
own approximately nine ...