United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is defendant Charles Earl Granderson, Jr.'s
(“Granderson”) motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. ECF
No. 85. The United States filed an opposition to the motion
(ECF No. 88) to which Granderson replied (ECF No. 90).
Facts and Procedural Background
April 29, 2015, Granderson was indicted on two charges: (1)
interference with commerce by robbery in violation of 18
U.S.C. § 1951 (“Hobbs Act robbery”); and (2)
brandishing a firearm during a robbery in violation of 18
U.S.C. § 924(c)(1)(A)(ii). ECF No. 1. Granderson filed a
motion to suppress (ECF No. 35) which was denied by the court
after an evidentiary hearing (ECF No. 54).
April 5, 2016, Granderson pled guilty to both counts of the
indictment without the benefit of a plea agreement. ECF No.
59. He was subsequently sentenced to one hundred and
twenty-five (125) months incarceration. ECF No. 67.
Granderson appealed his sentence to the Ninth Circuit (ECF
No. 68) but his appeal was dismissed on the basis of
Granderson's unconditional guilty plea (ECF No. 81).
Subsequently, on November 9, 2017, Granderson filed the
present motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. ECF No. 85.
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.
motion to vacate, Granderson raises three separate challenges
to his conviction and sentence: (1) that his unconditional
guilty plea was not knowing and voluntary; (2) that both his
trial and appellate counsel were constitutionally
ineffective; and (3) that Hobbs Act robbery does not qualify
as a crime of violence for purposes of 18 U.S.C. §
924(c). ECF No. 85. The court shall address each challenge
motion, Granderson contends that his unconditional guilty
plea was not made knowingly or voluntary. Granderson raised
this exact same argument on direct appeal which was rejected
by the Ninth Circuit. Claims raised and disposed of during a
previous direct appeal are not reviewable in a subsequent
Section 2255 proceeding. See e.g., United States v.
Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (“When
a defendant has raised a claim and has been given a full and
fair opportunity to litigate it on direct appeal, that claim
may not be used as a basis for a subsequent § 2255
petition.”); Hammond v. United States, 408
F.2d 481, 483 (9th Cir. 1969) (“Section 2255 may not be
invoked to relitigate questions which were or should have
been raised on direct appeal from the judgment of
conviction.”). Therefore, the court shall deny
Granderson's motion as to this challenge.
Ineffective Assistance of Counsel
Sixth Amendment to the Constitution provides that a criminal
defendant “shall enjoy the right to have the assistance
of counsel for his defense.” U.S. Const. Amend. VI.
Thus, a criminal defendant is entitled to reasonable
effective assistance of counsel. McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970).
establish ineffective assistance of counsel, a petitioner
must show that his or her 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 and must be
highly deferential to the attorney's judgments.
United States v. Quintero-Barraza, 78 F.3d 1344,
1348 (9th Cir. 1995) (citing Strickland, 466 U.S. at
688-89) (internal quotations omitted). Thus, to establish
deficient performance under Strickland, a defendant must show
“that counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. If a petitioner establishes 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.” Quintero-Barraza, 78 F.3d at 1348.
A reasonable probability is a probability “sufficient
to undermine confidence in the outcome.” Id.
motion, Granderson contends that both his trial and appellate
counsel were constitutionally ineffective. The court has
reviewed the documents and pleadings on file in this matter
and finds that Granderson's arguments are without merit.
As to his trial counsel, Granderson's claim of
ineffective assistance fails to allege either deficient
performance or prejudice. Granderson's only allegation
relating to his trial counsel is that counsel “poorly
inform[ed] [Granderson] of his plea agreement rights.”