United States District Court, D. Nevada
M. NAVARRO, DISTRICT JUDGE.
before the Court is Petitioner John Abell's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF No. 141). Respondent United
States of America (“the Government”) filed a
Response, (ECF No. 150), and Petitioner filed a Reply, (ECF
No. 151). Also pending before the Court is Petitioner's
Ex Parte Motion for Appointment of Counsel, (ECF No.
143), to which Petitioner filed a Supplement, (ECF No. 149).
For the reasons discussed below, the Court
DENIES Petitioner's 2255 Motion and
DENIES Petitioners Ex Parte Motion
for Appointment of Counsel.
September 28, 2011, a grand jury indicted Petitioner with
Attempted Coercion and Enticement of a Minor in violation of
18 U.S.C. § 2422(b). The Government sought to prove that
Petitioner used on-line communications to persuade a
13-year-old girl named Tina, who was undercover officer Taun
Yurek, to meet him for sex. (Tr. Tran. at 30-31, ECF No.
began on May 21, 2013, but the jury dead-locked after
deliberating. The Court thus declared a mistrial. (Mins.
Proceedings, ECF No. 70). The Government re-tried Petitioner,
and a jury returned a guilty verdict on September 13, 2013.
(Jury Verdict, ECF No. 98). The Court then sentenced
Petitioner to 120 months imprisonment, twenty years of
supervised release to follow, $100 in special assessments,
and a fine of $12, 500. (J., ECF No. 114).
appealed the jury's verdict and his sentence on April 3,
2014, to the Ninth Circuit Court of Appeals. (Not. Appeal,
ECF No. 116). In an unpublished Memorandum, the Circuit
affirmed Petitioner's conviction and sentence, though it
mentioned that, “to the extent [Petitioner] may have a
colorable claim [for ineffective assistance of counsel under
28 U.S.C. § 2255], he may pursue it on petition for
habeas corpus and a properly developed evidentiary
record.” (Mem. at 4, ECF No. 136). Petitioner
thereafter filed his 2255 Motion with this Court, asserting
six grounds for habeas relief.
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed sentence to vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(a).
Such a motion may be brought on the following grounds:
“(1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.”
Id.; see United States v. Berry, 624 F.3d
1031, 1038 (9th Cir. 2010). Motions pursuant to § 2255
must be filed within one year from “the date on which
the judgment of conviction becomes final.” 28 U.S.C.
six grounds for habeas relief fall into three categories. The
first category contains claims for ineffective assistance of
trial counsel. (2255 Motion at 5-9, ECF No. 141). The second
category relates to the Government allegedly withholding
evidence. (Id. at 6). Last is Petitioner's
argument that his sentence violates the Eighth
Amendment's prohibition of cruel and unusual punishment.
(Id. at 10). The below discussion addresses each
category in turn.
Ineffective Assistance of Counsel
establish ineffective assistance of counsel, a petitioner
must first show that his counsel's conduct was not
“within the range of competence demanded of attorneys
in criminal cases.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, a petitioner must show that
he was prejudiced by his counsel's deficient performance.
See id. at 692. Under this analysis, the question is
whether “counsel's representation fell below an
objective standard of reasonableness”; and the
Court's inquiry begins with a “strong presumption
that counsel's conduct [falls] within the wide range of
reasonable representation.” United States v.
Ferreira- Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987)
(as amended). “[T]he standard for judging counsel's
representation is a most deferential one” because
“the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with the
client, with opposing counsel, and with the judge.”
Harrington v. Richter, 562 U.S. 86, 105 (2011).
“The benchmark for judging any claim of ineffectiveness
must be whether counsel's actions so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
several claims based on ineffective assistance of counsel
begin with the allegation that his trial counsel failed to
adequately explain the terms and potential sentence
associated with a plea deal offered by the Government. (2255
Motion at 5). Petitioner states the proposed deal was that he
would plead guilty to perjury; and if he did, his other
charge “would be dropped.” (Id.).
Petitioner complains that his trial counsel did not provide