MEMORANDUM AND ORDER RE: PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
WILLIAM B. SHUBB, District Judge.
A jury convicted petitioner Roberto Ruiz-Marin of multiple drug distribution charges and this court sentenced him to a term of 151 months confinement. Petitioner now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1.)
Section 2255 provides that a prisoner "in custody under sentence of a court established by an Act of Congress" may move the court that imposed his sentence to vacate, set aside, or correct the sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. To prevail on a § 2255 motion, a petitioner must allege facts that, if true, would entitle him to relief. United States v. Rodrigues , 354 F.3d 818, 824 (9th Cir. 2003). A court must grant an evidentiary hearing on a petitioner's § 2255 motion "[u]nless the motion and the files and records of the case show conclusively that the prisoner is entitled to no relief." United States v. Chacon-Palomares , 208 F.3d 1157, 1159 (9th Cir. 2000) (quoting § 2255). The court may accordingly deny a petitioner's § 2255 motion without a hearing if his allegations "do not state a claim for relief or are so palpably incredible or so patently frivolous as to warrant summary dismissal." United States v. Leonti , 326 F.3d 1111, 1116 (9th Cir. 2003).
Petitioner seeks relief from his sentence on two separate grounds: (1) that the court miscalculated the amount of drugs attributable to him; and (2) that he received ineffective assistance of counsel in violation of the Sixth Amendment.
I. Miscalculation of Drug Amounts
In general, federal prisoners may not use a § 2255 proceeding to relitigate a claim that has been decided on direct appeal. United States v. Scrivner , 189 F.3d 825, 828 (9th Cir. 1999); Withrow v. Williams , 507 U.S. 680, 720-21 (1993) (Thomas, J., concurring in part). This relitigation bar may be overridden only in exceptional circumstances, such as an intervening change in the law. Davis v. United States , 417 U.S. 333, 341-42 (1974).
Petitioner's first basis for habeas relief is that the court incorrectly calculated the quantity of methamphetamine that he conspired to distribute. (Pet. at 5 (Docket No. 1).) Petitioner unsuccessfully raised this argument on direct appeal, see United States v. Ruiz-Marin, 492 Fed.App'x 770, 771 (9th Cir. 2012), and identifies no exceptional circumstances that would permit relitigation of this issue. Accordingly, the court's calculation of drug quantity does not provide a basis for granting petitioner relief.
II. Ineffective Assistance of Counsel
Although a petitioner is ordinarily required to raise his or her claims on direct review before seeking habeas relief under § 2255, the Supreme Court has recognized that "an ineffective assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States , 538 U.S. 500, 504 (2000). Ineffective assistance of counsel claims are governed by the framework set forth in Strickland v. Washington, which requires petitioner to show that his counsel's performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms" and that counsel's deficient performance prejudiced him. 466 U.S. 688, 694 (1984). The Supreme Court has characterized the reasonableness inquiry as "highly deferential, " id., and has recognized a "strong presumption that counsel's performance falls within the wide range of professional assistance." Kimmelman v. Morrison , 477 U.S. 365, 381 (1986). Even if petitioner can show that counsel's performance was objectively deficient, he can prevail on his ineffective assistance claim only if he can show prejudice - in other words, that it is "reasonably likely' the result would have been different" but for the ineffective assistance of counsel. Harrington v. Richter, ___ U.S. ___ , 131 S.Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696).
Here, petitioner claims he received ineffective assistance of counsel at trial because his attorney, Paul R. Taber: (1) failed to argue that the government had withheld a "surprise witness" in violation of Brady v. Maryland , 373 U.S. 83 (1963) (Pet. at 6); (2) failed to secure an interpreter at trial (id. at 8); and (3) stipulated to the identity, quantity, and schedule of the government's drug exhibits at trial, (id. at 9). In addition, petitioner claims that he received ineffective assistance of counsel on appeal because his appellate counsel, James K. Ball, failed to argue that Taber's performance at trial was ineffective. (Id. at 6, 9.)
A. Failure to Identify a Brady Violation
Petitioner claims that Taber provided ineffective assistance of counsel because he failed to argue that the government had violated Brady by withholding testimony from a "surprise witness." (Id. at 6.) "To establish a Brady violation, a defendant must show that: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the government, regardless of whether the suppression was willful or inadvertent; and (3) the evidence is material to the guilt or innocence of the defendant." United States v. Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013) (citing Brady , 373 U.S. at 87).
Petitioner's claim that Taber failed to identify a Brady violation does not constitute ineffective assistance of counsel because the record contains no facts showing that the government violated Brady. Taber represents that he was aware that one of petitioner's co-conspirators would testify at trial, that he informed petitioner that he would do so, and that he informed petitioner of his strategy for impeaching this witness at trial. (Taber Aff. at 1-2 (Docket No. 9-8).) Taber was not surprised by the witness's testimony, (id.), and told Ball that he believed there was no viable Brady claim on which petitioner could base his appeal. (See Ball Aff. at ¶ 5 (Docket No. 9-9) ("My review of the case did not reveal any Brady issues... I visited with trial counsel about the case and he did not indicate that he thought there were any issues in this regard.").)
Petitioner contends that even if Taber knew that this witness would testify, he was nonetheless unaware that the witness would change his testimony until four days before the trial began. Whether or not this witness changed his testimony shortly before trial, petitioner does not allege any "government action to throw the defendant off the path of the alleged Brady information." United States v. Bond , 552 F.3d 1092, 1096 (9th Cir. 2009). Nor has petitioner demonstrated that Taber was unaware of the substance of the witness's testimony at trial. See United States v. Aichele , 941 F.2d 761, 764 (9th Cir. 1991) (noting that where a "defendant has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression"). Indeed, petitioner concedes that ...