LARRY R. HICKS, UNITED STATES DISTRICT JUDGE
Before the court is defendant Darin Jerome French’s (“French”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #402. The United States filed an opposition (Doc. #404) to which French replied (Doc. #406).
Also before the court is French’s motion for leave to file an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #421. The United States filed an opposition (Doc. #424) to which French replied (Doc. #428).
I. Facts and Background
On April 29, 2009, French, along with his then-wife and co-defendant Jennifer Lynn, was charged in a superseding indictment with thirty-two (32) counts of mail fraud in violation of 18 U.S.C. § 1341; twenty-five (25) counts of wire fraud in violation of 18 U.S.C. § 1343; three (3) counts of money laundering in violation of 18 U.S.C. § 1957; and one (1) count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(1) for his participation in an alleged scheme to defraud customers of his on-line appliance business. Doc. #60.
After a nine-day jury trial, French was convicted of twenty-two (22) counts of mail fraud in violation of 18 U.S.C. § 1341; eleven (11) counts of wire fraud in violation of 18 U.S.C. § 1343; and three (3) counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(1) and 1957. Doc. #269. French was then sentenced to one hundred and fifty (150) months incarceration. Doc. #317.
French appealed both his conviction and sentence. Doc. #318. On October 12, 2012, the Ninth Circuit reversed two of French’s convictions for money laundering, but affirmed the remaining thirty-four (34) counts of conviction as well as the one hundred and fifty (150) month sentence. See United States v. French, 494 Fed.Appx. 784 (9th Cir. 2012). Thereafter, on January 14, 2014, French filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #402.
II. Legal Standard
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if “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; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 41.3b (5th ed. 2005).
The Sixth Amendment to the Constitution provides that criminal defendants “shall enjoy the right to have the assistance of counsel for his defense.” U.S. Const. Amend. VI. To establish ineffective assistance of counsel, a petitioner must show that his counsel’s performance was deficient, and that petitioner was prejudiced as a result of counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel’s performance was deficient, the court must examine counsel’s overall performance, both before and at trial, and must be highly deferential to the attorney’s judgments.” Quintero-Barraza, 78 F.3d at 1348 (citing Strickland, 466 U.S. at 688-89) (internal quotations omitted). Once a petitioner has established that counsel’s performance was deficient, the petitioner “must then establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In his motion, French argues that he is entitled to post-conviction relief under Section 2255 due to the ineffective assistance of his appellate counsel, attorney Robert Story (“Attorney Story”). See Doc. #402. French contends that Attorney Story was constitutionally ineffective for two reasons: (1) he failed to challenge the court’s factual finding at sentencing that there were more than 250 victims of French’s fraud; and (2) he failed to sufficiently communicate with French during the appellate process. The court shall address both claims below.
1. Victim Calculation
During sentencing, the court found that there were over 250 different victims of French’s fraud which correlated to a six-point upward adjustment to his guideline calculation. In his motion, French argues that this calculation was incorrect, and that the proper victim calculation was 48 victims - which correlates to only a two-point upward adjustment - because he only owes 48 individuals restitution. He contends that ...