B. LYNN WINMILL, District Judge.
Before the Court is Alfred Wahtomy's motion to set aside his conviction and sentence pursuant to 28 U.S.C. § 2255, and the Government's motion to dismiss. The motions are fully briefed and at issue. For the reasons explained below, the Court will grant the Government's motion to dismiss.
On April 23, 2008, the Government filed charges against Wahtomy and Martin Auck, alleging that the two men sexually assaulted a young woman on the Fort Hall Shoshone Bannock Indian Reservation. More specifically, the Indictment charged both men with (1) aggravated sexual assault and (2) assault resulting in serious bodily injury. Following a trial, a jury returned a verdict of guilty against Wahtomy on both charges, and a verdict of guilty against Auck on a lessor-included offense.
On March 11, 2009, the Court sentenced Wahtomy to a term of imprisonment of 172 months on the first charge, and 120 months on the second, to be served concurrently and to be followed by 10 years of supervised release. Following sentencing, Wahtomy appealed this Court's order quashing his subpoena seeking to compel testimony from the tribal court judge who had signed the search warrant in his case. On June 9, 2010, the Ninth Circuit affirmed this Court's decision to "decline to permit Wahtomy to subpoena Judge Coby to inquire into her qualifications" because Wahtomy failed to proffer evidence that Judge Coby was biased or incapable of determining whether probable cause existed. United States v. Wahtomy, 2010 WL 2317964 (9th Cir. 2010) (unpublished disposition).
On February 3, 2011, Wahtomy timely filed the pending § 2255 motion alleging that his counsel was ineffective for failing: (1) to file a motion to suppress for lack of probable cause; (2) to challenge admission of incriminating statements; (3) to object to a Government stipulation; (4) to call Wahtomy to testify on his own behalf; (5) to move for severance; and (6) to make a plausible showing that the tribal court judge who issued the search warrant was biased. The Government moved to dismiss on the grounds that Wahtomy's ineffective assistance of counsel claims are without merit.
Title 28 U.S.C. § 2255 provides four grounds that justify relief for a federal prisoner who challenges the fact or length of his detention: (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). 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).
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); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quotation omitted). To withstand summary dismissal, a 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). Conclusory statements, without more, are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
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. And, "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 Strickland standard is "highly demanding." Kimmelman, 477 U.S. at 381-82.
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. ...