United States v. Najera-Gordillo, 2:05-cr-0383 MCE DAD P
| Decision Date | 17 November 2014 |
| Docket Number | No. 2:05-cr-0383 MCE DAD P,2:05-cr-0383 MCE DAD P |
| Parties | UNITED STATES OF AMERICA, Respondent, v. FRANCISCO MIGUEL ANGEL NAJERA-GORDILLO, Movant. |
| Court | U.S. District Court — Eastern District of California |
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 On June 21, 2007, following his entry of guilty plea pursuant to a plea agreement, movant was convicted of conspiracy to possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine. Movant now seeks post-conviction relief on the grounds that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.
On May 31, 2006, pursuant to a written plea agreement, petitioner entered a plea of guilty to count three of the indictment in which he was charged with possession of at least 50 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §841(a)(1). (ECF No. 29.) Movant was sentenced by United States District Judge William B. Shubb on October 17, 2006, to 292 months imprisonment in the custody of the United States Bureau of Prisons. (ECF No. 46.)2 He thereafter appealed his conviction and sentence to the Court of Appeals for the Ninth Circuit. (ECF No. 47.) The Court of Appeals dismissed movant's appeal on September 18, 2008, in light of the waiver of the right to appeal set forth in his plea agreement. United States v. Najera-Gordillo, 285 Fed. Appx. 461 (2008). (ECF No. 104.)
On February 9, 2009, movant filed a motion on his own behalf seeking to set aside his guilty plea and sentence pursuant to 28 U.S.C. § 2255. (ECF No. 123.) Therein, he claimed that the trial court in its plea colloquy had misrepresented to him the maximum possible statutory penalty he faced, in violation of Rule 11(b)(1)(H) of the Federal Rules of Criminal Procedure. (Id.) Movant also argued that his trial counsel rendered ineffective assistance by failing to properly advise him of the potential sentencing range he faced and in failing to review the Pre-sentence Investigation Report with him prior to his sentencing hearing. (Id.) By order filed August 25, 2009, District Judge William B. Shubb granted movant's § 2255 motion, vacated his guilty plea and sentence, and placed the matter on the court's calendar for trial setting. (ECF No. 150.)3 Judge Shubb subsequently recused himself and the case was reassigned to United States District Judge Edward J. Garcia. (ECF No. 151.)
On April 22, 2010, a superseding indictment was filed charging movant with one count of conspiracy to possess with intent to distribute at least 500 grams of a mixture or substancecontaining a detectable amount of methamphetamine and one count of possession with intent to distribute at least 50 grams of actual methamphetamine. (ECF No. 174.) On September 9, 2010, movant pled guilty to both charges set forth in the superseding indictment. (ECF No. 174.) There was no plea agreement.4 On December 10, 2010, movant was sentenced to 324 months imprisonment in the custody of the Bureau of Prisons to be followed by a 120 month term of supervised release. (ECF No. 225.) Movant subsequently filed a timely appeal from his sentence. (ECF No. 224.) On March 5, 2012, the Ninth Circuit Court of Appeals affirmed his sentence, finding that it was substantively reasonable. United States v. Najera-Gordillo, 470 Fed. Appx. 668, 669 (9th Cir. 2012), cert. denied ___ U.S. ___, 133 S. Ct. 797 (2012).
Movant filed the instant motion pursuant to 28 U.S.C. § 2255 on June 7, 2013. (ECF No. 236.)
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. United States v. Monreal, 301 F.3d 1127, 1130 (9th Cir. 2002). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) () Relief is warranted only where a petitioner has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Davis, 417 U.S. at 346. See also United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
Under § 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 movant'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) (internal quotation marks omitted). See also United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Withers, 638 F.3d at 1062; McMullen, 98 F.3d at 1159. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
Movant raises five separate claims of ineffective assistance of trial counsel. After setting forth the applicable legal principles, the court will analyze each of these claims in turn below.
The clearly established federal law governing ineffective assistance of counsel claims is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 787-88 (2011) (quoting Strickland, 466 U.S. at 687).
A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. See also Richter,131 S. Ct. at 789 (same). Reviewing courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).
Prejudice is found where "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. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792.
Petitioner's first claim for relief is based on his contention that his appointed trial counsel rendered ineffective assistance in recommending to him that he enter an "open" plea of guilty to both of the superseding indictment's charges against him, instead of "putting the government to its burden at trial." (ECF No. 236 at 17.) In this regard, movant argues that the only loss he would have suffered had he chosen to proceed to trial is the two-point reduction in his sentencing guideline calculation that he received pursuant to United States Sentencing Guidelines (USSG) § 3E1.1 for acceptance of responsibility. (Id. at 18.) He describes this as a "thirty three (33) month gamble." (Id.) Movant notes that he did not plead guilty early enough in the process to receive an additional point off his sentencing guideline calculation for early acceptance of responsibility pursuant to USSG § 3E1.1(b). (Id. at 18, 19.) In short, movant asserts that his appointed trial counsel should have advised him to go forward with a trial instead of pleading guilty, in light of the fact...
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