United States District Court, D. Nevada
M. Navarro, District Judge United States District Court
before the Court is Petitioner Paul Scott Nelson's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255 (“2255
Motion”), (ECF No. 112). The Government filed a
Response, (ECF No. 114), and Petitioner did not file a reply.
For the reasons discussed below, Petitioner's 2255 Motion
on three occasions ranging from December of 2014 to February
of 2015, illegally sold firearms to undercover law
enforcement officers. (See Plea Agreement 4:2-18,
ECF No. 76). The Government charged Petitioner with three
counts of Felon in Possession of a Firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). (Indictment, ECF
No. 1). Prior to the Indictment, Petitioner had been
convicted of six felonies under Nevada law, three of
which-aggravated stalking, battery with a deadly weapon, and
assault with a deadly weapon-qualify as “violent
felonies” under the Armed Career Criminal Act
(“ACCA”). (See Resp. 2255 Mot.
1:18-2:11, ECF No. 114) (see also Transcript of
Change of Plea, 9:12-10:8, ECF No. 106). Ultimately, on
September 19, 2017, Petitioner pleaded guilty to two counts
of Felon in Possession of a Firearm and did not receive a
sentencing enhancement under the ACCA. (Plea Agreement,
filed the instant 2255 Motion on March 28, 2019.
(See 2255 Mot., ECF No. 112). Petitioner alleges
that his sentence should be vacated, set aside, or corrected
because of four instances of ineffective assistance of
counsel. (Id.). Petitioner argues his counsel was
ineffective because: (1) Petitioner should have received an
additional 156 days of credit for time served; (2) Petitioner
would have received a one-point reduction to his offense
level for entering a timely plea had counsel not misled him
regarding whether he qualified for an ACCA enhancement; (3)
counsel failed to adequately review the Pre-Sentence Report
(“PSR”) with Petitioner prior to sentencing; and
(4) counsel failed to present the Court with Petitioner's
complete medical and mental health records for consideration
in his sentencing. (Id. ¶ 17).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed the 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).
pursuant to § 2255 must be filed within one year from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). “[A]
district court may deny a Section 2255 motion without an
evidentiary hearing only if the movant's allegations,
viewed against the record, either do not state a claim for
relief or are so palpably incredible or patently frivolous as
to warrant summary dismissal.” United States v.
Burrows, 872 F.2d 915, 917 (9th Cir. 1989). “No
evidentiary hearing is necessary when the issue of
credibility can be conclusively decided on the basis of
documentary testimony and evidence in the record.”
Shah v. United States, 878 F.2d 1156, 1160 (9th Cir.
Petitioner's arguments for 2255 relief allege ineffective
assistance of counsel. (See 2255 Mot., ECF No. 112).
To establish ineffective assistance of counsel, a petitioner
must first show that 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) (citations omitted). Second, a
petitioner must also show that he was prejudiced by that
performance. See id. at 692. Under this standard,
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) (citations omitted). “[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). Petitioner must also
demonstrate that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Court's below discussion addresses each of
Petitioner's asserted grounds for relief in turn.
Insufficient Credit for Time Served
was sentenced to 180 months imprisonment and received credit
for 36 months of time served, but he argues that he should
have received an additional 156 days of credit for work and
programming that he completed while in federal detention.
(2255 Mot. at 5). Petitioner's argument is both
contradicted by the record and fails to establish ineffective
assistance of counsel. Petitioner was in state custody prior
to his sentencing. (See Indictment, ECF No. 1).
Therefore, by operation of law, he would not receive credit
for time served absent an agreement with the Government.
See 18 U.S.C. § 3585.
Petitioner were factually correct, he has failed to show
ineffective assistance. Petitioner's counsel successfully
negotiated for a 36-month reduction of Petitioner's
sentence for the time served in state custody before
Petitioner's initial appearance in this case.
(See Plea Agreement 8:8-12, ECF No. 76) (see
also 2255 Resp. 2:18-3:3). Had counsel not successfully
negotiated that aspect of the plea agreement, Petitioner
would have been incarcerated for an additional three years,
which is far longer than the time he alleges should have been
subtracted from his sentence. Accordingly, Petitioner cannot
establish facts ...