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United States v. Lombera

United States District Court, D. Nevada

April 27, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
FABIAN BARRAGAN LOMBERA, Defendant.

ORDER

HOWARD D. McKIBBEN, District Judge.

Before the court is defendant Fabian Barragan Lombera's ("Lombera") motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (#48). The government has responded (#57); Lombera did not file a reply.

Case History

On December 19, 2012, members of the Reno Police Department Street Enforcement Team (SET) met with a confidential source (CS), who claimed he could set up the delivery of 12 pounds of methamphetamine to Reno from a source he knew as "Tinzoo" (later identified as the defendant, Lombera) in Fresno, California (#29, pp.3-4). The next day, a SET Detective monitored a phone call from the CS to "Tinzoo, " to purchase methamphetamine in Nevada. Tinzoo said he couldn't deliver 12 pounds, but that he could deliver 7 pounds of methamphetamine and would leave Fresno in the morning. Id. at 4.

The next day, Lombera was arrested at a Chevron station just outside of Reno, Nevada, after officers intercepted the vehicle he was driving and found five individually wrapped packages of a substance that field-tested positive for the presence of methamphetamine. Laboratory analysis determined the packages contained 2184 grams of actual methamphetamine. Id. at 5.

On July 24, 2013, Lombera pled guilty to possessing with intent to distribute 500 grams or more of methamphetamine (#29). On December 23, 2013, the court sentenced him to a term of 188 months' imprisonment pursuant to a one-level downward variance from the 210 to 262 guideline range. RT Sentencing 19-22. Lombera did not file a direct appeal.

The instant motion is Lombera's first claim for relief under 28 U.S.C. § 2255. He timely filed the motion on November 10, 2014, #48, within one year after the court's entry of judgment on January 3, 2014 (#43).

Legal Standard

Pursuant to § 2255, a federal inmate may move to vacate, set aside, or correct his sentence if: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Id. § 2255.

Ineffective assistance of counsel is a cognizable claim under § 2255. Bauman v. United States, 692 F.2d 565, 581 (9th Cir. 1982). In order to prevail on such a claim, the defendant must meet a twoprong test to show both deficient performance of counsel and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, the defendant must show that his counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. Additionally, in considering the conduct of defendant's counsel, a court must be highly deferential. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Strickland 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164).

This presumption of reasonableness means the court must "give the attorneys the benefit of the doubt, " and must also "affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did." Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted). Counsel is granted wide latitude in making tactical decisions. Strickland, 466 U.S. at 689.

Second, if there was a deficiency in counsel's performance, the defendant must show it prejudiced his defense. Strickland, 466 U.S. at 687. This requires demonstrating "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. at 694.

A court need not address both components of the inquiry if the defendant makes an insufficient showing on one. ...


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