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United States v. Ochoa-Sanchez

United States District Court, D. Nevada

May 25, 2017

UNITED STATES OF AMERICA, Plaintiff(s),
v.
OSCAR OTIEL OCHOA-SANCHEZ, Defendant(s).

          ORDER

         Presently 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).

         I. Facts

         On May 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).

         On 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. (“Kocka”).

         In the instant motion, the petitioner moves to vacate his sentence based on ineffective legal counsel. (ECF No. 133).

         II. Legal Standard

         Federal 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).

         Limitations 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).

         III. Discussion

         To 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 (1984).

         “First, 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 688.

         “Second, 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.

         Petitioner 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).

         In 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 ...


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