The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendant/Petitioner Robert Merten's Motion (Dkt. 1) to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. The motion is fully briefed and at issue. Being familiar with the record and having considered the briefing, the Court will deny the motion as set forth below.
Defendant Mertens was indicted on charges ranging from possession and distribution of cocaine, heroin, and marijuana, to possession of a firearm and money laundering. (Indictment, Dkt. 1 in criminal case).*fn1 Mertens proceeded to a trial by jury in August of 2004. The following month, the jury returned guilty verdicts on all counts. (Dkts. 375, 382). In December 2004, the Court sentenced Mertens to 444 months imprisonment, followed by 5 years of supervised release, and a $3,500 special assessment. (Dkt. 405). Mertens appealed his conviction, sentence, and order of forfeiture to the Ninth Circuit Court of Appeals. (Dkt. 411). On February 15, 2006, the Ninth Circuit affirmed the conviction, but ordered a limited remand for re-sentencing consistent with United States v. Booker, 125 S.Ct. 738 (2005), in light of United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir. 2005). (Dkt. 459-1).
On remand, the Court considered the record and arguments of parties, and reviewed the transcript from trial. The Court concluded that its sentencing would not have been different had the Court known the sentencing guidelines were advisory, rather than mandatory. (Dkt. 476). Mertens filed a second notice of appeal (Dkt. 477). The Ninth Circuit affirmed this Court, finding that it "correctly interpreted our limited remand." United States v. Mertens, 277 Fed.Appx. 716 (9th Cir. 2008). Mertens filed a petition for writ of certiorari to the United States Supreme Court; the petition was denied in October 2008. Mertens then filed this Motion under § 2255 (Dkt. 515, Dkt. 1 in civil case), asserting ineffective assistance of trial and appellate counsel, and prosecutorial misconduct.
A prisoner asserting the right to be released "may move the court which imposed the sentence to vacate, set aside or correct the sentence" under 28 U.S.C. § 2255(a). Section 2255 provides four grounds that justify relief for a federal prisoner who challenges the fact or length of his detention: (1) whether "the sentence was imposed in violation of the constitution or laws of the United States;" (2) whether the court was without jurisdiction to impose such sentence; (3) whether the sentence was "in excess of the maximum authorized by law;" or (4) whether the sentence is "otherwise subject to collateral attack." See Hill v. United States, 368 U.S. 424, 428 (1962). Despite this seemingly broad language, "the range of claims which may be raised in a § 2255 motion is narrow." United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
The Court recognizes that a response from the government and a prompt hearing are required "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .." 28 U.S.C. § 2255(b). Further, a hearing must be granted unless the movant's allegations, "when viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985) (citations omitted); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). A district court may summarily dismiss a § 2255 motion "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief . . .." Rule 4(b), Rules Governing § 2255 Proceedings in the United States District Court. Thus, in order to withstand summary dismissal of his motion for relief under § 2255, the defendant "must make specific factual allegations which, if true, would entitle him to relief on his claim." United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990).
Where a motion under § 2255 is based on alleged constitutional or jurisdictional error, one must be careful to distinguish mere errors of law or fact. See Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 593 (2d ed. 1982). If the alleged error is one of law or fact, then § 2255 does not provide a basis for collateral attack "unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (citing Hill, 368 U.S. at 428).
Section 2255 is not a substitute for appeal. Addonizio, 442 U.S. at 184. "Errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255." United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981). Where a defendant fails to raise claims on direct review, those claims are procedurally defaulted unless he can demonstrate cause for and prejudice from the procedural default, or actual innocence. United States v. Ratigan, 351 F.3d 957, 962 (2003)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). However, when a particular issue "has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion." Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972)(citations omitted).
Where a petitioner's allegations, "viewed against the record, fail to state a claim for relief," or where otherwise warranted, the Court may summarily dismiss a § 2255 motion, without a hearing. United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)(citations omitted). In a § 2255 motion, conclusory statements, without more, are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). As more fully expressed below, the Court finds that Mertens' allegations, when viewed against the record, fail to state a claim for relief.
1. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is a basis for habeas relief, and need not be raised on direct appeal to preserve the issue for collateral attack. United States v. Withers, 638 F.3d 1055, 1066 (9th Cir. 2011)(citing Massaro v. United States, 538 U.S. 500, 505 (2003)). Mertens has the burden of proving ineffective assistance of counsel, by showing (1) that counsel performed so deficiently as to fall below an objective standard of reasonableness; and (2) prejudice -- that but for counsel's deficiencies, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-694 (1984). These standards apply equally to trial and appellate counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986).
In evaluating counsel's performance, there is a strong presumption favoring a finding of effectiveness. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)(citation omitted). A difference of opinion as to trial tactics will not satisfy a finding of ineffectiveness. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Regarding prejudice, the court considers "the totality of the evidence . . . and presume[s] that the judge or jury acted according to law." Strickland, 466 U.S. at 695. A defendant "has the ultimate authority to [decide] . . . whether to plead guilty, waive a jury, testify in his or her own behalf, or to take an appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983). However, there is no constitutional right for a defendant to require presentation of points that counsel decides, in his or her professional judgment, ...