United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
before the Court is Movant's Motion to Vacate, Set Aside
or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#44).
The Government filed a response in opposition (#51).
Juan Victor Barreras-Adriano (“Barreras-Adriano”
or “Defendant”) is in federal custody serving a
57-month sentence imposed by this Court on a conviction for
illegal reentry in violation of 8 U.S.C. § 1326.
Barreras-Adriano filed the present motion timely on January
20, 2017, within one year after this Court entered Judgment
(#43). This Court has jurisdiction under 28 U.S.C. §
2, 2014, a grand jury indicted Defendant after being found in
the United States after having been deported and removed from
the United States on at least two prior occasions. After
continuing the trial dates several times while Defendant
explored the possibility of challenging his prior removals,
Barreras-Adriano pled guilty on September 22, 2015 without
the benefit of a plea agreement. At his change of plea
hearing, Defendant initially sought appointment of new
counsel due to his counsel's failure to challenge his
prior removals. After consultation, Defendant changed his
mind and pled guilty. The Court canvassed Defendant and found
that his plea was knowing and voluntary.
February 8, 2016, Defendant filed a Sentencing Memorandum
(#41) in which Defendant sought a sentencing variance below
the voluntary guidelines minimum of fifty-seven months. At
sentencing, the Court concluded, based on Defendant's
criminal history and continued reentry into the United States
after being removed, that the low-end guideline range
sentence was necessary to satisfy the statutory purposes of
punishment, deterrence, incapacitation and rehabilitation.
now argues that he received ineffective assistance of counsel
when his counsel: 1) failed to “help him in any
way” and promised a lower sentence; 2) promised
eligibility for a “fast track” sentence; 3)
failed to communicate to the Court his “excruciating
circumstances” and that he had to support his family;
4) caused him to forfeit his appellate rights; and 5) failed
to have new guidelines, which had not taken effect, applied
to his case.
Standard of Review
establish ineffective assistance of counsel, a defendant must
show both deficient performance of counsel and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Deficient performance is demonstrated when “counsel
made errors so serious that the counsel was not functioning
as the ‘counsel' guaranteed the defendant by the
Sixth Amendment.” There is a strong presumption that
counsel's conduct falls within “the wide range of
reasonable professional assistance.” Id. at
689. A tactical decision by counsel with which the defendant
disagrees cannot form the basis of an ineffective assistance
claim. Id.; Guam v. Santos, 741 F.2d 1167,
1169 (9th Cir. 1984).
prejudice, a defendant must demonstrate “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 confidence in the
outcome.” Id. at 694. The Supreme Court
recently re-emphasized the burdens a defendant must overcome
to establish ineffective assistance of counsel:
Surmounting Strickland's high bar is never an easy task.
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be
applied with scrupulous care, lest intrusive post-trial
inquiry threaten the integrity of the very adversary process
the right to counsel is meant to serve. Even under de novo
review, the standard for judging counsel's representation
is a most deferential one. Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client,
with opposing counsel, and with the judge. It is all too
tempting to second-guess counsel's assistance after
conviction or adverse sentence. The question is whether an
attorney's representation amounted to incompetence under
prevailing professional norms, not whether it deviated from
best practices or most common custom.
Harrington v. Richter, 562 U.S. 86, 105 (2011)
(internal quotations and citations omitted).
order to establish a meritorious claim of ineffective
assistance of counsel, a defendant must show both deficient
performance and prejudice. Williams v. Calderon, 52
F.3d 1465, 1469 (9th Cir. 1995). There is no need to evaluate
counsel's performance if the petitioner fails to show his
defense was prejudiced by counsel's alleged errors.
Strickland, 466 U.S. at 697.