The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Benjamin Quinonez' ("Quinonez") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Docket No. 1). Having reviewed the Motion, the Government's Response (Docket No. 11), Quinonez' Reply (Docket No. 15),*fn1 and the underlying criminal record, the Court enters the following Order dismissing the Motion for the reasons set forth below.
A. Background and Summary of Issues
On January 23, 2002, Quinonez was named as the sole defendant in a one-count indictment charging possession with intent to distribute 500 grams or more of methamphetamine, cocaine, and 50 kilograms or more of marijuana. Indictment (Docket No. 1). On March 26, 2002, the Government filed a superseding indictment charging Quinonez and two other individuals with conspiracy to possess with intent to deliver 500 grams or more of methamphetamine between January 1997 and January 9, 2002, and charging Quinonez alone with possession with intent to distribute 500 grams or more of methamphetamine, cocaine, and marijuana. Superseding Indictment (Docket No. 11). Quinonez' two co-Defendants pled guilty on June 3, 2002. Minutes (Docket Nos. 30 and 32).
CJA appointed counsel Steven Richert represented Quinonez until co-Defendants entered their pleas. Motion to Withdraw (Docket No. 40). He withdrew after Quinonez engaged the services of Robert L. Booker, a Salt Lake City, Utah attorney. Motion to Appear Pro Hac Vice (Docket No. 34).
On July 26, 2002, the Government filed a second superseding indictment adding two additional individuals, extending the period of the conspiracy to February 24, 2002, adding a money laundering count against Quinonez, and adding a money laundering count against the two newly added co-Defendants. Second Superseding Indictment (Docket No. 57). On February 18, 2003, pursuant to a Plea Agreement, Quinonez pled guilty to the possession and the money laundering counts.*fn2 Plea Agreement (Docket No. 74); Minutes (Docket No. 79).
The Probation Officer thereafter prepared a draft Presentence Report ("PSR") and submitted it to counsel. Following the directives of USSG §§ 3D1.1 and 3D1.2 for grouping multiple offenses, the Probation Officer determined that the money laundering guideline, § 2S1.1, was the appropriate guideline. As required by § 2S1.1(a)(1), he then determined that the base offense level was 38 based on the drug quantity, that the conviction under 18 U.S.C. § 1956 for money laundering required a 2-level enhancement pursuant to § 2S1.1 (b)(2)(B),*fn3 that a 2-level upward adjustment for role in the offense was warranted pursuant to § 3B1.1(b), that Quinonez was entitled to a 3-level adjustment for acceptance of responsibility pursuant to § 3E1.1, and that his criminal history category was III.
The Government objected to the draft PSR contending that a 4-level role enhancement for being an organizer or leader of five or more participants was more appropriate. Objections to Presentence Report (Docket No. 90). Quinonez objected to the drug quantity (contending that the appropriate base offense level was 34), much of the relevant conduct, the role enhancement, the money laundering enhancement (stating that the money was for child support and not to promote drug trafficking), and the criminal history category.*fn4 Defendant's Objections to Presentence Report (Docket No. 91). He also requested an evidentiary hearing.
The Probation Officer addressed the objections in the Addendum and submitted the final PSR with the base offense level of 38 and the 2-level enhancement for money laundering from the draft PSR, and a 3-level enhancement for being a manager or supervisor of the money laundering activities of five or more participants. The Probation Officer recommended against an adjustment for acceptance of responsibility given the extensive objections to relevant conduct both in the presentence interview and in the formal objections. The Probation Officer also recommended against the safety valve adjustment under § 5C1.2 because of Quinonez' role in the offense, the number of criminal history points, and failure to provide truthful information to the Government. Therefore, the resulting total offense level was 43. With a criminal history category of III, the guideline range became life imprisonment, the statutory maximum.
The Court conducted a three-day evidentiary sentencing hearing, at which Quinonez testified, to resolve the disputed issues. The Government presented the testimony of Quinonez' three co-Defendants (including the mother of his five children), seven law enforcement officials or investigative agents, and one other individual who had engaged in drug trafficking activities with Quinonez. The Court ultimately fixed the base offense level at 36, applied a 4-level enhancement for role in the offense, a 2-level enhancement for the money laundering offense, and a 2-level enhancement for obstruction of justice based on perjury at the sentencing hearing. Sent. Tr. 326-27. The Court also determined that Defendant was not entitled to an adjustment for acceptance of responsibility. However, it did grant a 2-level reduction for Quinonez' stipulation to deportation pursuant to the Plea Agreement. Sent. Tr. 328. The resulting guideline range based on an offense level of 42 with a criminal history category of III was 360 months to life. Sent. Tr. at 328. On May 16, 2003, after giving serious consideration to a life sentence, the Court sentenced Defendant to concurrent terms of 480 months on the drug count and 240 months on the money laundering count. Sent. Tr. 338; 340. Judgment (Docket No. 101).
Quinonez appealed. Notice of Appeal (Docket No. 102). He ultimately retained David Balakian of Fresno, California to represent him on appeal. Notice of Appearance (Docket No. 111). On appeal, Quinonez alleged ineffective assistance of counsel for failure to object to the Court's findings on the enhancement for obstruction of justice, the failure to grant an adjustment for acceptance of responsibility, the failure to group the offenses as required by the sentencing guidelines, and the drug quantity calculation.
On May 24, 2004, Mr. Balakian filed a § 2255 Motion on Quinonez' behalf alleging the same grounds of ineffective assistance of counsel. § 2255 Motion (Docket No. 117). On June 30, 2004, the Court entered an order dismissing the § 2255 Motion without prejudice due to the pending appeal. Order (Docket No. 119).
The Ninth Circuit affirmed the Court's sentencing determinations but remanded for resentencing consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc). United States v. Quinonez, 166 Fed. Appx. 284 (9th Cir. 2006) (Docket No. 125). On November 13, 2006, having reviewed the record and the briefs of the parties, the Court determined that the sentence imposed would not have been materially different under advisory guidelines. Memorandum Decision and Order (Docket No. 136). Quinonez again appealed. Notice of Appeal (Docket No. 137). He was represented on this second appeal by appointed counsel Dennis Benjamin. Order (Docket No. 151). On January 18, 2008, the Ninth Circuit affirmed the Court's decision not to resentence Quinonez. United States v. Quinonez, 264 Fed. Appx. 618 (9th Cir. 2008) (Docket No. 155). Quinonez thereafter timely filed the pending § 2255 Motion.
In his current pro se § 2255 Motion, Quinonez raises nine grounds of ineffective assistance of counsel pertaining primarily to the sentencing phase of the proceeding. However, in his Reply, he appears to be raising issues regarding his plea as well. Mr. Booker represented him at both the plea and the sentencing.
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."
The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then proceeds to a determination under Rule 8 of whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
2. Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).
In order to establish deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance." Id. at 689. This is so because for the defendant, "[i]t is all too tempting... to second-guess counsel's assistance after conviction or adverse sentence...." Id. For the court, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland). In evaluating the performance prong, the court should "assess counsel's overall performance throughout the case in order to determine whether the 'identified acts or omissions' overcome the presumption that a counsel rendered reasonable professional assistance." Kimmelman v. Morrison, 477 U.S. 365, 386 (1986).
In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The ...