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 Juan Antonio Zavala's Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 14). Having reviewed the Amended Motion, the Government's Response (Dkt. 21), Zavala's Reply (Dkt. 26), and the underlying criminal record, and having conducted an evidentiary hearing, the Court enters the following Order denying the Amended Motion for the reasons stated at the conclusion of the hearing and set forth below.
Following a jury trial, Zavala was convicted of (1) conspiracy to distribute and to possess with intent to distribute methamphetamine, cocaine, and ecstasy in violation of 21 U.S.C. §§ 841(a)(1) and (846), and (2) distribution of 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Given the uncertainties surrounding the constitutionality of the sentencing process at the time, the Court convened a jury to hear evidence at the sentencing hearing which occurred over a period of three days from January 10 through January 12, 2005.
On the third day of the sentencing hearing, the United States Supreme Court decided the seminal case of United States v. Booker, 543 U.S. 220 (2005), effectively rendering the United States Sentencing Guidelines advisory. After reviewing the decision, the Court discharged the jury having determined that Booker allowed it to make the necessary evidentiary findings without a jury. At the conclusion of the evidentiary portion of the hearing, the Court found a higher drug quantity than the Probation Officer had found in the Presentence Report ("PSR"). Accordingly, the total offense level increased from 41 to 43. The Court set the actual sentencing portion of the hearing for a later date. Minutes, Dkt. 990.
On February 25, 2005, the Court sentenced Zavala to a term of imprisonment of 360 months despite a guideline range of fixed life. On March 24, 2008, the Ninth Circuit, in an en banc decision, affirmed the reasonableness of the sentence on appeal.
See United States v. Zavala, 520 F.3d 984 (9th Cir. 2008) (en banc). The Supreme Court subsequently denied Zavala's petition for a writ of certiorari on May 19, 2008, rendering his conviction final. See Zavala v. United States, 128 S.Ct. 2491 (2008).
On May 6, 2009, Zavala filed a § 2255 Motion (Dkt. 1) which was deficient in several respects. However, the Court liberally construed the motion and concluded that Zavala had sufficiently stated a claim of ineffective assistance of counsel. Order, Dkt. 6. The Court appointed counsel to confer with Zavala, review the record, and file an amended motion alleging any specific grounds of ineffective assistance of counsel that counsel deemed had merit. Id.
On March 5, 2010, Zavala, through appointed counsel, filed the pending Amended § 2255 Motion alleging that defense counsel provided constitutionally deficient representation by failing to negotiate and communicate plea offers and by failing to investigate and present mitigation evidence at sentencing. The Court determined after reviewing the Government's Response and Zavala's Reply that an evidentiary hearing was warranted to resolve the factual disputes revealed by their respective accompanying affidavits concerning communications outside the record. Order, Dkt. 27.
On December 1, 2011, the Court held an evidentiary hearing at which Executive Director of the Federal Defender Services of Idaho Samuel Richard Rubin, Maria deRosario Garcia (Zavala's mother), and Zavala testified in support of the Amended § 2255 Motion, and AUSA Monte Stiles and defense counsel Dennis Charney testified on behalf of the Government. Minutes, Dkt. 39. At the conclusion of closing arguments, the Court denied the Amended § 2255 Motion and advised that it would issue an Order to that effect. Id.
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 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 Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (noting that the court should "assess ...