United States District Court, D. Nevada
before the court is petitioner Enrique Murillo-Zarate's
(“petitioner”) motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence
(ECF No. 54). The government has filed a response (ECF No.
57) and petitioner has filed a reply (ECF No. 58).
was deported from the United States to Mexico in 2012 after
completing a 24-month sentence imposed by the Central
District of California for conspiracy to distribute and
possess with intent to distribute cocaine. In 2013,
petitioner was arrested in Las Vegas for possession of
cocaine, obstructing a police officer, and escape. In March
2015, petitioner pleaded guilty to an indictment charging him
with being a deported alien found unlawfully in the United
States in violation of 8 U.S.C. § 1326. On October 6,
2015, this court sentenced petitioner to 57 months
imprisonment and entered judgment on October 6, 2015.
Petitioner filed the instant motion on July 3, 2017.
raises only one claim for relief. He alleges that his counsel
rendered ineffective assistance by not pursuing a plea
agreement. Specifically, petitioner alleges that his counsel
failed to seek a fast-track plea agreement after petitioner
expressed his interest in pursuing one. The court finds that
petitioner's claim lacks merit and denies the motion for
the following reasons. Additionally, the court denies the
request for an evidentiary hearing because the record before
the court “conclusively shows” that petitioner is
not entitled to relief. 28 U.S.C. § 2255(b); Farrow
v. United States, 580 F.2d 1339, 1360-61 (9th Cir.
2255 provides four grounds upon which a sentencing court may
grant relief to a petitioning in-custody defendant:
 that 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(a). Generally, only a narrow range of
claims fall within the scope of § 2255. United
States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The
alleged error of law must be “a fundamental defect
which inherently results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting
Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468,
7 L.Ed.2d 417 (1962)).
assistance of counsel
Sixth Amendment to the United States Constitution
“guarantees criminal defendants the constitutional
right to be represented by counsel at all critical stages of
the prosecution.” Turner v. Calderon, 281 F.3d
851, 879 (9th Cir. 2002) (internal quotation marks omitted).
A federal petitioner's claim that he was denied effective
assistance of counsel is measured by the standard set out in
Strickland v. Washington. 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d. 647 (1984). To prevail on an ineffective
assistance of counsel claim, a petitioner must establish
that: (1) his counsel's performance was deficient; and
(2) the deficiency prejudiced his defense. Id. at
assistance of counsel requires that the petitioner show that
his counsel's performance fell below an objective
standard of reasonableness and a “reasonable
probability” that the performance prejudiced his
defense. Id. at 687-94. “A court must indulge
a strong presumption that counsel's conduct falls within
a 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 (internal
quotation marks omitted). To establish that the performance
was prejudicial, 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. at 694.
court need not conduct an evidentiary hearing where
“the motions and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). In other words, an
evidentiary hearing is only need if “accepting the
truth of [defendant's] factual allegations, he could have
prevailed on an ineffective assistance claim.”
United States v. Blaylock, 20 F.3d 1458, 1465 (9th
contends he was denied effective assistance of counsel in
violation of the Sixth Amendment because he requested that
his attorney “seek a plea offer under the
‘fast-track' program” for his illegal reentry
charge and his attorney responded that “not everyone
gets the fast-track” (ECF No. 54). The government
responds that petitioner cannot establish prejudice necessary
to prevail on his ineffective assistance of counsel claim
because he has not shown how the result of the proceeding
would be different had his attorney attempted to obtain a
fast-track disposition through plea negotiations. The court
finds the government's argument persuasive.
fast-track program does not create any prospective
substantive or procedural rights for defendants. See,
e.g., Deputy Attorney General James M. Cole, Department
Policy on Early Disposition or “Fast-Track”
Programs, WL 6620439, January 31, 2012. Furthermore, the
decision to implement any fast-track consideration lies
solely within the prosecutor's discretion. United
States v. Reyes-Hernandez, 624 F.3d 405, 421-22 (7th
Cir. 2010). The record ...