United States District Court, D. Nevada
before the court is petitioner Oscar Otiel
Ochoa-Sanchez's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. (ECF No. 133).
The government has filed a response (ECF No. 139), to which
petitioner replied (ECF No. 140).
28, 2015, petitioner pleaded guilty to count 6 of the
indictment (ECF No. 26), charging distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(viii). (ECF No. 89).
October 6, 2015, the court sentenced petitioner to 108 months
in custody, followed by five (5) years supervised release
with special conditions. (ECF No. 125). Petitioner was
advised of his rights to file an appeal. (ECF Nos. 89, 92,
125). The court entered judgment on October 8, 2015. (ECF No.
126). Petitioner was represented by Frank P. Kocka, Esq.
instant motion, the petitioner moves to vacate his sentence
based on ineffective legal counsel. (ECF No. 133).
prisoners “may move . . . to vacate, set aside or
correct [their] 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).
on § 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).
prevail on a claim of ineffective assistance of counsel,
petitioner must show deficient performance and prejudice.
See Strickland v. Washington, 466 U.S. 668, 687
the defendant must show that counsel's performance was
deficient.” Id. at 687. “Judicial
scrutiny of counsel's performance must be highly
deferential.” Id. at 689. “A fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight . .
. .” Id. at 689. “[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.” Id. at 689. To
establish deficient performance, the petitioner “must
show that counsel's representation fell below an
objective standard of reasonableness.” Id. at
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. “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. A reasonable
probability is a probability sufficient to undermine the
confidence in the outcome.” Id. at 694.
argues that his attorney, Kocka, was ineffective by allowing
him to sign a plea agreement including a waiver of appeal and
post-conviction proceedings, which prejudiced petitioner.
(ECF No. 133 at 5). Additionally, petitioner alleges that his
attorney failed to obtain minor participant consideration for
him during the sentencing. (ECF No. 133 at 5). Lastly,
petitioner contends that his limited knowledge of the English
language and the laws coupled with his attorney's lack of
explanation led petitioner to accept a plea he did not fully
understand. (ECF No. 133 at 5).
response, the government asserts that petitioner affirmed at
the change-of-plea hearing that petitioner met with his
attorney, discussed the contents of the plea agreement, and
was knowingly and voluntarily entering a guilty plea. (ECF
No. 139 at 7). Moreover, the government argues that
petitioner gives no reason to discredit ...