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 Lawrence Weitzman's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Emergency Motion for Bail (Dkt. 1). Having reviewed the Motion, Weitzman's Supporting Memorandum (Dkt. 4), the Government's Motion to Dismiss (Dkt. 8), and Weitzman's Response to the Motion to Dismiss (Dkt. 10), as well as the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion and finding the Motion for Bail moot.
BACKGROUND AND SUMMARY OF ISSUES
Following his plea of guilty to conspiracy to structure transactions and launder money in violation of 18 U.S.C. § 371, the Court sentenced Weitzman to a term of imprisonment of 27 months, a fine of $25,000, and a special assessment of $100 and ordered Weitzman to forfeit property in the substituted value of $175,000. Judgment, Dkt. 1110 in criminal case. The Court found the guideline range to be 87 to 108 months which was capped at the statutory maximum of 60 months. The Court then imposed a sentence below the guideline range primarily because Weitzman suffers from an incurable form of blood cancer, Waldenstrom's Macrogobulinemia. Aware that he was being actively treated at the Stanford University Medical School with an experimental clinical trial drug called Cal-101, the Court postponed his reporting date to allow for an additional treatment prior to incarceration and included in the Judgment the following recommendations:
. . . that the Defendant undergo a thorough medical assessment by the Bureau of Prisons, and that the Defendant be granted a medical furlough under 18 U.S.C. § 3622(a)(1) (sic)*fn1 in order to obtain medical treatment and to allow the Defendant to continue his participation in a clinical trial. The cost of the medical furlough shall be paid by the Defendant. The Court further recommends that the Defendant be placed in a facility as close to his residence as possible.
Judgment at 2, Dkt. 1110.
Weitzman self-reported on November 17, 2010, to theBureau of Prison's ("BOP") medical center in Butner, North Carolina, where he remains incarcerated. His projected release date is November 1, 2012.
Because his Plea Agreement contained an appeal waiver, Weitzman did not appeal his conviction or sentence. However, he timely filed the pending § 2255 Motion under an exception to the § 2255 waiver which permitted a § 2255 motion alleging ineffective assistance of counsel based solely on information not known to him at the time of sentencing and which could not have been known by him at that time. Plea Agreement at ¶ VII.B, pp. 11-12, Dkt. 681. More specifically, Weitzman alleges that counsel was ineffective for not determining prior to sentencing that despite its Policy Statement 6031.01 permitting medical furloughs, BOP's actual practice is to deny furloughs for medical care involving clinical trials. He contends that "counsel's erroneous reliance upon the Bureau's program statement mislead the sentencing court into believing that the defendant would be accorded a reasonable opportunity to obtain medical furloughs to continue his treatment on Cal-101." § 2255 Motion at 10.
The § 2255 Motion was prompted by the steady decline of Weitzman's health since January 2011 and the BOP's alleged refusal to allow him a furlough to participate in the Stanford clinical trial despite the recommendation of the Dr. Andres Carden, the lead oncologist at Butner, that he be placed back on the trial.
Weitzman seeks release on bail to resume treatment and seeks resentencing taking into consideration the "newly discovered impediments to defendant's access to vital medical treatment." § 2255 Motion at 11.
The Government has moved to dismiss the § 2255 Motion and the Motion for Bail contending that issues regarding medical condition and treatment do not provide a basis for § 2255 relief, that counsel's performance was not objectively unreasonable, that the claims are speculative, and that he has not been prejudiced.
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.
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). The Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (1986).
In order to establish deficient performance, a defendant must overcome the strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance" by showing that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688-89. 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. Id. at 694.
Both prongs of the Strickland test must be met "before it can be said that a conviction (or sentence) 'resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable' and thus in violation of the Sixth Amendment." United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687). In evaluating an ineffective assistance of counsel claim, the Court may consider the performance and prejudice components of the Strickland test in either order. Strickland, 466 U.S. at 697. Furthermore, the Court need not consider one component if there is an insufficient showing of the other. Id.
There is no dispute regarding the seriousness of Weitzman's longstanding medical condition. It was amply documented throughout the various stages of the underlying criminal case. Indeed, hearings were continued for long periods of time to allow Weitzman to undergo treatment whenever his condition deteriorated to the point where he could not adequately participate in the proceedings. Furthermore, the Court was well aware of the concerns of counsel at sentencing when he argued for a sentence of probation with home ...