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United States v. Barreras-Adriano

United States District Court, D. Nevada

October 17, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JUAN VICTOR BARRERAS-ADRIANO, Defendant/Movant.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE.

         Presently 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).

         I. Background

         Movant 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. § 2255.

         On July 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.

         On 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.

         Defendant 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.

         II. Standard of Review

         To 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).

         To show 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).

         In 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.

         III. ...


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