United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge
before the Court is Jose Penaloza-Paramo's Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (Civ. Dkt. 1) Also pending is Penaloza-Paramo's
Motion to Dismiss (Civ. Dkt. 23). Having now reviewed and
considered the motions, the Court enters the following Order
granting the Government's Motion to Dismiss and
dismissing the § 2255 Petition.
was charged by superseding indictment with conspiracy to
distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and ten counts of possession
with intent to distribute a controlled substance, in
violation of 21 U.S.C. § 842(a)(1) and 18 U.S.C. §
2. (Docket No. 84). The Petitioner originally pled guilty to
count twenty-three, and was sentenced. However, the case was
remanded by the Ninth Circuit Court of Appeals. (Crim. Dkt.
385). Penaloza-Paramo subsequently entered into an identical
plea agreement. (Crim. Dkt. 365.). The case proceeded to
change of plea and sentencing on May 29, 2013. (Crim. Dkt.
385). The Court then sentenced Penaloza-Paramo to 240 months
in prison. (Crim. Dkt. 385).
28 U.S.C. § 2255 provides four grounds under which a
federal court may grant relief to a federal prisoner who
challenges the imposition or length of his or her
incarceration: (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. §
4(b) of the Rules Governing Section 2255 Proceedings provides
that a federal district court judge must dismiss a §
2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” In
order to proceed on a § 2255 motion, the movant must
make “specific factual allegations that, if
true, state a claim on which relief could be granted.”
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984) (citation omitted) (emphasis added). “Under
this standard, a district court may summarily dismiss a
§ 2255 motion only if the allegations in the motion,
when viewed against the record, do not give rise to a claim
for relief or are ‘palpably incredible or patently
frivolous.'” United States v. Withers, 638
F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).
alleges ineffective assistance of counsel. The
well-established two-prong test for evaluating ineffective
assistance of counsel claims is deficient performance and
resulting prejudice. Strickland v. Washington, 466
U.S. 668 (1984). Mere conclusory allegations are insufficient
to state a claim of ineffective assistance of counsel.
Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.
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).
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
counsel's overall performance throughout the case”
when evaluating whether his assistance was reasonable).
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). Whether or not counsel's performance was
deficient is irrelevant if there was no prejudice as both of
Strickland's prongs must be met to be entitled to relief.
In evaluating an ineffective assistance of counsel claim, a
court may consider the performance and prejudice components
of the Strickland test in either order.
Strickland, 466 U.S. at 697.
recently reiterated by the Supreme Court, a defendant's
right to effective assistance of counsel has long been held
to apply to the plea process. Missouri v. Frye, 132
S.Ct. 1399, 1408 (2012); Lafler v. Cooper, 132 S.Ct.
1376, 1385 (2012); Padilla v. Kentucky, 559 U.S.
356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57
(1985). The same Strickland standard applies to
claims of ineffective assistance of counsel at the plea
stage. Hill, 474 U.S. at 58. Here, Penaloza-Paramo
makes several ...