United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is the defendant's § 2255 motion to vacate, set aside, or correct his sentence based on ineffective assistance of counsel. (Doc. # 138). The government responded. (Doc. # 140).
On December 2, 2011, defendant Jose Venegas-Sagaste (hereinafter "defendant") pleaded guilty to one count of conspiracy to distribute methamphetamine. (Doc. # 90). The plea agreement contained an appeal waiver and an extensive discussion of the factual basis for the plea. See id. That same day, the court held a change-of-plea hearing where it thoroughly discussed the plea agreement with the defendant, ensuring that his guilty plea was knowing and voluntary, that he understood the rights he was waiving by pleading guilty, and that he admitted to the facts that formed the basis of his conviction. (Doc. # 89). On March 21, 2012 the court held a sentencing hearing and gave the defendant an opportunity to allocute. (Doc. # 123). The court sentenced the defendant to the mandatory minimum incarceration term of ten years, followed by five years' supervised release. (Doc. # 109).
On June 8, 2012, the defendant filed an untimely pro se notice of appeal. (Doc # 113). Upon receiving the appeal, on June 20, 2012, the Ninth Circuit noted that the notice of appeal was untimely and ordered the defendant to show cause why the appeal should not be dismissed. (Doc. # 140). The defendant filed a response and on July 31, 2012, the Ninth Circuit held that the order to show cause was discharged, appointed the defendant counsel, and set a briefing schedule. Id. On February 15, 2013, the defendant's counsel filed an Anders brief and sought to withdraw as counsel. (Doc. # 133). On October 22, 2013, the Ninth Circuit dismissed the appeal based on the waiver in the plea agreement and granted the defendant's counsel's request to withdraw. Id.
Subsequently, the defendant filed the instant section 2255 petition, alleging that he received ineffective assistance of counsel because his counsel failed to (1) advise him of his Boykin rights, resulting in an involuntary plea; (2) argue that the plea agreement lacked an adequate factual basis; (3) ensure that he was allowed to allocute at sentencing; and (4) file a timely notice of appeal. (Doc. # 138).
II. Legal Standard
A. 28 U.S.C. § 2255 Motion, Procedural Default
A federal prisoner "may move... to vacate, set aside or correct [his] sentence" if the court imposed the sentence "in violation of the Constitution or laws of the United States...." 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where "a fundamental defect" caused "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).
Limitations on section 2255 motions are based on the fact that the movant "already has had a fair opportunity to present his federal claims to a federal forum, " whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 "is not designed to provide criminal defendants multiple opportunities to challenge their sentence." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
"When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition." United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Further, "[i]f a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, " the defendant is in procedural default. Johnson, 988 F.2d at 945; see also Bousley v. United States, 523 U.S. 614, 622 (1998).
This procedural default may be overcome by showing either (1) cause for failing to raise the issue and prejudice or (2) actual innocence. United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). But the "cause and prejudice" exception revives only defaulted constitutional claims, not nonconstitutional sentencing errors. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994). Further, ineffective assistance of counsel claims are an exception to procedural default, since the trial record is often inadequate for the purpose of bringing these claims on direct appeal. Massaro v. United States, 538 U.S. 500, 504-05 (2003) ("[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Id. at 509).
B. Ineffective Assistance of Counsel
The elements established by the Supreme Court for prevailing on an ineffective assistance of counsel claim are: (1) the defendant "must show that counsel's representation fell below an objective standard of reasonableness"; and (2) the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. ...