The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Before the Court is a Petition (Dkt. 1) to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, by Defendant/Petitioner Mario Arriaga Nunez aka Jorge Alexander Canchola. The motion is fully briefed and at issue. The government opposes and has moved to dismiss Nunez's Petition, in part due to waiver under the terms of Nunez's plea agreement. Gov't Mot., Dkts. 3, 8. Being familiar with the record and having considered the briefing, the Court will deny Nunez's Petition, and grant the government's Motion, as more fully described below.
Defendant Nunez was indicted, along with 15 other defendants, with
conspiracy to distribute, and distribution of methamphetamine, as well
as two racketeering-related counts. (Indictment, Dkt. 1 in criminal
case). Roughly two weeks after his arraignment,
Nunez retained private counsel Chad Gulstrom, who substituted in for
court-appointed counsel. Defendant signed a plea agreement, and
pleaded guilty to Count One -- conspiracy to distribute, and Count
Three -- conspiracy to travel and transport in aid of racketeering
enterprises. (Plea Agreement, Dkt. 3-1 in civil case). In the plea
agreement, Nunez waived his rights to appeal and to petition under §
2255. (Id.) Nunez was sentenced to 188 months imprisonment on Count
One and 60 months on Count Three, to run concurrently.
Despite the terms of his plea agreement, Nunez filed a single issue appeal, arguing that his sentence was unreasonable, as compared to those of his co-conspirators. The Ninth Circuit Court of Appeals denied the appeal and affirmed Nunez's sentence, noting that the sentence was 22 months below the guideline range of 210-262. (Memorandum, Dkt. 553 in criminal case). The Ninth Circuit also found Nunez's sentence appropriate, compared to his co-conspirators, given that Nunez "maintained the drug 'stash house,' he coordinated with local distributors, he was involved in Las Vegas drug deals, and, on several occasions, he discussed future drug purchases with an undercover officer." (Id.) The Ninth Circuit concluded that this Court did not abuse its discretion in imposing Nunez's sentence. (Id.)
Nunez filed this petition under § 2255, asserting ineffective assistance of counsel for failing to object or properly investigate, or for otherwise allowing or coercing Nunez to plead guilty under the influence of medication. Nunez also asserts that his appellate counsel was ineffective for failing to move to withdraw his plea or appeal the issue. And finally, Nunez contends that the Court erred by denying Nunez's motion to substitute trial counsel.
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).
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).
1. Request for Evidentiary Hearing
Where a petitioner's allegations, "viewed against the record, fail to state a claim for relief," United States v. McMullen, 98 F.3d 1155 (9th Cir. 1996)(citations omitted), or where summary dismissal is warranted, the Court may deny an evidentiary hearing. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985)(citation 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 Nunez has failed to raise allegations ...