United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Before the Court is Edwin Fuentes-Enamorado's ("Petitioner") Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence ("Motion") filed by counsel Dan Winder. (Dkt. no. 75.) The Court ordered the government to respond and permitted Petitioner to file a reply. (Dkt. nos. 76 & 79.) Pursuant to the Court's instruction, the government filed a response. (Dkt. no. 78.) Petitioner did not file reply in further support of the Motion.
On August 7, 2012, the Grand Jury indicted Petitioner on one count of Illegal Alien in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(5)(A) an 924(a)(2). (Dkt. no. 1.) On February 28, 2013, the Court granted Petitioner's request for a thirty (30) day continuance of trial to permit Petitioner to secure the attendance of a witness, Sophie Goodell, at trial. (Dkt. no. 21.) Petitioner's counsel represented that Ms. Goodell was back in town and was willing to talk to Petitioner's counsel, which prompted the request for continuance.
Trial was held on March 26, 2013. (Dkt. no. 35.) The main issue presented involved the first element of the offense - whether Petitioner knowingly possessed a firearm. The parties stipulated to the remaining two elements of the offense: (1) the firearm had been shipped or transported in interstate commerce and (2) Petitioner was an alien illegally or unlawfully present in the United States on the date alleged in the indictment, July 12, 2012. (Dkt. no. 65 at 166.)
At trial, the government presented evidence to establish the discovery of the firearm and Petitioner's possession of the firearm. On July 12, 2012, during the course of executing a search of a residence, law enforcement personnel found a firearm, a Heckler & Koch 9 millimeter handgun, underneath a pillow on the bed in one of the bedrooms. (Dkt. no. 65 at 100-101.) They found articles in the bedroom associated with a male occupant and other items in the bedroom belonging to Petitioner, including his driver's license and a copy of his immigration paperwork (application for temporary protective status). ( Id. at 103-107.) Petitioner arrived at the house around 1:00 a.m, while the search was still in progress. ( Id. at 108, 132.) Petitioner admitted that the bedroom in question belonged to him and that he had been renting the room for about seven (7) months. ( Id. at 110.) Petitioner also admitted to officers on the scene that the firearm belonged to a friend and he kept it under his pillow for protection although he knew he should not possess the firearm because of his status. ( Id. )
Petitioner did not call any witness but he elected to testify. Petitioner testified that Ms. Goodell had a separate room, but she stayed in his room after they became involved romantically. (Dkt. no. 65 at 131.) Petitioner testified that there were people constantly showing up to the house who were on narcotics and he did not trust them. ( Id. ) According to Petitioner, he and Ms. Goodell got into an argument so he left the house for a couple of days to give her space. ( Id. ) Ms. Goodell called him earlier in the day to tell him that some of the people they distrust were coming over and "she grabbed the pistol [from another bedroom], and she put it underneath the pillow" in his bedroom. ( Id. at 133, 141.) He initially was not concerned about her having the firearm, but later decided to return home and had planned to ask her to remove the firearm from his bedroom. ( Id. 147-49.) When he arrived and saw that Ms. Goodell was in handcuffs, he told law enforcement officers that he was in possession of the firearm because of his impulse to protect his girlfriend. ( Id. at 142-45.) He testified that he knew that given his illegal alien status, he was not supposed to possess a firearm. ( Id. at 143-151.)
The jury returned a guilty verdict. (Dkt. no. 41.) Petitioner appealed and the Ninth Circuit Court of Appeals affirmed. See United States v. Fuentes-Enamorado, 13-10387, 2014 WL 2024856, at *1 (9th Cir. May 19, 2014); (dkt. no. 69).
Petitioner's Motion asserts two grounds for ineffective assistance of counsel. In his first ground, Petitioner argues that counsel was ineffective for failing to: (1) "preserve the sufficiency ground;" and (2) "call the girl friend... who would have testified that it was her weapon and that [Petitioner] was actually innocent." (Dkt. no. 75 at 3.) In his second ground, Petitioner contends that counsel was ineffective for failing to "research, investigate and prepare the defense that there was an application for relief pending with Immigration at the time of the seizure." ( Id. at 3-4.)
"[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970). Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that: (1) counsel's performance was unreasonably deficient; and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-91 (2000) ( citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id . Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an objective standard of reasonableness, ... under prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation marks and citations omitted). Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.
Petitioner fails to satisfy Strickland 's second prong ("prejudice prong") ...