Opinion
Cesar O Quezada, Petitioner (2:12-cv-08134-MMM), Pro se, Lompoc, CA.
For United States of America, Respondent (2:12-cv-08134-MMM): Assistant 2241-2255 U.S. Attorney LA-CR, Daniel H Malvin, SAUSA - Office of U.S. Attorney, Los Angeles, CA; Dorothy Kim, AUSA - Office of U.S. Attorney, Criminal Div - U.S. Courthouse, Los Angeles, CA.
For USA, Plaintiff (2:12-cr-00208-MMM-1): Daniel H Malvin, SAUSA - Office of U.S. Attorney, Los Angeles, CA.
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2012, the government filed a complaint charging Quezada with violating 8 U.S.C. § 1326(a) and (b)(1); § 1326 makes it unlawful for an alien who has previously been removed or deported from the United States to enter, attempt to enter, or be found within the United States following removal or deportation. On March 19, 2012, Quezada waived indictment, and on March 25, 2012, he pled guilty to one count of violating § 1326. In the plea agreement, Quezada admitted that he is a citizen of Mexico, that he was convicted on November 13, 2008 of assault with a deadly weapon in violation of California Penal Code § 245(a)(1) in San Bernardino Superior Court and was sentenced to 220 days in jail. He also admitted that he had been deported from the United States on June 10, 2010, and that on or about August 15, 2011, he knowingly and voluntarily re-entered and remained in the United States without authorization. Immigration authorities located Quezada in Los Angeles County on or about January 8, 2012.
Complaint, Case No. CR 12-00208 MMM, Docket No. 1 (Feb. 13, 2012). The complaint was filed against Otoniel Madera Quesada aka Otoniel Madera-Quesada aka Caesar Otoniel Quesada. The court refers to petitioner as Cesar O. Quezada in this order because that is the name under which he filed his § 2255 motion.
Waiver of Indictment, Case No. CR 12-00208 MMM, Docket No. 14 (Mar. 19, 2012); Minutes of Change of Plea Hearing, Case No. CR 12-00208 MMM, Docket No. 17 (Mar. 26, 2012); see also Plea Agreement (" Plea"), Case No. CR 12-00208 MMM, Docket No. 12 (Mar. 8, 2012).
Plea, ¶ 10.
Id.
Id.
In the plea agreement, Quezada and the government agreed that his base offense level was eight, that a sixteen level enhancement applied because he had been deported or removed following a felony conviction for a crime of violence, and that he should receive a three level reduction for acceptance of responsibility and a four level reduction for early disposition, resulting in a total offense level of 17.
Id., ¶ 12.
On April 30, 2012, the probation department disclosed a presentence report, which calculated that Quezada had ten criminal history points and was in criminal history category V. Quezada filed objections to the report on May 8, 2012, arguing that, under United States v. Rivera-Gomez, 634 F.3d 507 (9th Cir. 2010), the probation department had erroneously scored a 2012 misdemeanor conviction for giving false information to a peace officer that should have been considered relevant conduct. He asserted that he should have received only nine criminal history points, which would have placed him in criminal history category IV, and resulted in an advisory guideline range of 37-46 months.
Modified Presentence Report, Case No. CR 12-00208 MMM, Docket No. 18 (Apr. 30, 2012).
Position with Respect to Sentencing Factors (" Objection"), Case No. CR 12-00208 MMM, Docket No. 20 (May 8, 2012).
Id. at 2.
Id.
At sentencing, Judge Jacqueline Nguyen adopted the offense level in Quezada's plea agreement, agreed with Quezada that his criminal history points placed him in criminal history category IV, and concluded that his resulting guidelines range was 37 to 46 months. On June 21, 2012, she sentenced Quezada to 37 months' imprisonment. On June 29, 2012, Quezada appealed his sentence; he later voluntarily dismissed the appeal.
Statement of Reasons, Case No. CR 12-00208 MMM, Docket No. 26 (June 21, 2012).
Minutes of Sentencing, Case No. CR 12-00208 MMM, Docket No. 24 (June 21, 2012); Judgment and Commitment, Case No. CR 12-00208 MMM, Docket No. 28 (June 27, 2012).
Notice of Appeal, Case No. CR 12-00208 MMM, Docket No. 27 (June 29, 2012); Motion to Dismiss Case Voluntarily, Case No. Ap. 12-50303, Docket No. 6 (Oct. 31, 2012); Order Dismissing Appeal Case No. Ap. 12-50303, Docket No. 7 (Nov. 6, 2012).
On September 20, 2012, while his appeal was pending, Quezada filed this pro se petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In the motion, Quezada states: " I found . . . [a] big mistake in my case" -- the " inclusion of th[e] . . . 16 level enhancement." Quezada asserts he would like an opportunity to show the court that he has been " doing good" and that he was working to support his mother, wife, and children. He states that his mother has chronic degenerative endocrinological disorder and that he needs to be with her. He attaches letters of support from his brother and his wife, both of whom state that Quezada is a good man and wants to return to Mexico to start a new life. He also proffers a letter from his mother, who reports that Quezada is her only source of financial support. Quezada appears to allege an ineffective assistance of counsel claim, stating: " I don't [have] a good legal assistance from my counsel." He asks that the court appoint counsel to assist him with his § 2255 petition. The motion was reassigned to this court on September 27, 2012, and on December 5, 2012, the government filed opposition.
Motion to Vacate, Set Aside, or Correct Sentence (" Motion"), Case No. CV 12-08134, Docket No. 1 (Sept. 20, 2012).
Motion at 5.
Motion at 5.
Motion at 5.
Motion at 10-11.
Motion at 5.
Motion at 4 (" I need [ ] legal help").
Notice of Reassignment of Case, Case No. CR 12-00208 MMM, Docket No. 40 (Sept. 27, 2012).
Opposition to Motion to Vacate/Set Aside/Correct Sentence (" Opposition"), Case No. CV 12-08134, Docket No. 4 (Dec. 5, 2012).
II. DISCUSSION
A. Legal Standard Governing § 2255 Motions
A petitioner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Section 2255 provides:
" [A] prisoner in custody under sentence of a court established by an Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
If any of these grounds exists, the court " shall vacate and set the judgment aside and shall discharge the prisoner or release him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
If the motion, files, and records of the case " conclusively show that the prisoner is entitled to no relief, " the court need not hold a hearing regarding petitioner's allegations. 28 U.S.C. § 2255(b). See also United States v. Zuno-Arce, 209 F.3d 1095, 1102 (9th Cir. 2000) (" When a prisoner files a motion under 28 U.S.C. § 2255, the district court must grant an evidentiary hearing to determine the validity of the motion '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, '" quoting 28 U.S.C. § 2255), overruled on other grounds, Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002); United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (" Pursuant to 28 U.S.C. § 2255, a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief'"). Merely conclusory statements do not justify a hearing. Rather, petitioner must make specific factual allegations that, if true, would entitle him to relief. Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982); United States v. Popoola, 881 F.2d 811 (9th Cir. 1989).
B. Quezada's Request for Appointment of Counsel
There is no constitutional right to be represented by counsel in habeas corpus proceedings. Brown v. Cameron, 353 F.2d 835, 836 n. 1, 122 U.S.App.D.C. 297 (D.C. Cir. 1965); United States v. Waite, 382 F.Supp.2d 1, 2 (D. D.C. 2005). Under 18 U.S.C. § 3006A(a)(2)(B), however, a court may appoint counsel for a § 2255 petitioner if the interests of justice so require. 18 U.S.C. § 3006A(a)(2)(B); see 28 U.S.C. § 2255(g). " In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam) (citations omitted); see also Engberg v. Wyoming, 265 F.3d 1109, 1121-22 (10th Cir. 2001) (affirming the district court's denial of petitioner's request for appointment of counsel, based on petitioner's previous lack of success on identical claims, the relative simplicity of the issues, and the fact that the case no longer involved application of the death penalty); compare United States v. Mala, 7 F.3d 1058, 1063-64 (1st Cir. 1993) (holding that because a § 2255 petitioner had presented a colorable claim that was factually complex and legally intricate, and was severely hampered in his ability to investigate the undeveloped facts, the interests of justice supported the appointment of counsel).
Quezada asserts that he lacks access to a law library, a typewriter, and legal assistance. It is apparent from Quezada's § 2255 motion either that his general English language skills or his ability to write in English are limited. Despite these limitations, Quezada has been able to communicate the bases on which he seeks relief. For reasons discussed infra, none of the grounds Quezada identifies will likely succeed on the merits. For that reason, the court does not believe that appointing counsel would assist Quezada in litigating the motion. Consequently, it denies his request for the appointment of counsel.
Motion at 4, 5.
C. Whether Quezada Has Shown that Application of a Sixteen Level Enhancement Was Erroneous
Quezada first argues that application of a sixteen level enhancement based on the fact that he was removed or deported following conviction for a crime of violence was improper.
1. Whether Quezada's Claim is Procedurally Proper
If a petitioner does not raise an argument on direct appeal, he is procedurally barred from presenting the issue on collateral review absent a showing of cause excusing the failure to raise the issue on appeal, and prejudice. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (stating that " a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains"). Alternatively, a petitioner can show that he is actually innocent of the crime. Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (" We remain confident that, for the most part, 'victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard. But we do not pretend that this will always be true. Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default"); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (" Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice' or that he is actually innocent"). Quezada did not argue on direct appeal that the sentencing judge erroneously applied a sixteen level enhancement in his case. Even had he done so, he voluntarily dismissed the appeal. Thus, his claim is barred unless he can show cause and prejudice or actual innocence. As Quezada does not argue actual innocence, the court addresses only cause and prejudice.
Indeed, in his plea agreement, Quezada waived his right to appeal all aspects of the sentencing decision so long as the court imposed the parties' agreed sentence. (Plea Agreement, Case No. CR 12-00208 MMM, Docket No. 12 (Mar. 8, 2012).) This is precisely the sentence Judge Nguyen imposed.
Three circumstances can constitute cause for a procedural default -- the inability of counsel reasonably to know or discover a legal or factual issue; ineffective assistance of counsel; and interference by a government attorney that makes compliance with a procedural rule impracticable. Murray, 477 U.S. at 478. Quezada contends he did not raise the issue of the sixteen level enhancement on appeal because he did not have access to a law library or typewriter, had no legal assistance, and was being transferred between detention facilities. Under Murray, this explanation does not suffice to show cause for his procedural default. Quezada also alleges ineffective assistance of counsel, but does not address how the purportedly deficient performance of his attorney caused him to fail to challenge the sixteen level enhancement on appeal. It is not necessary to determine if Quezada suffered prejudice because he has not established cause to excuse his failure to raise these claims on direct appeal. See O'Campo v. United States, Case Nos. 10-cv-169-DOC, 05-cr-124-DOC, 2012 WL 3206778, *4 (C.D.Cal. Aug. 3, 2012). Because the claim is procedurally barred, Quezada cannot now assert that his sentence resulted from an erroneous application of the sixteen level enhancement.
2. Whether Quezada's Claim Has Substantive Merit
Even were the court to consider the merits of Quezada's claim that application of the enhancement was erroneous, it would deny his motion. The version of U.S.S.G. § 2L1.2(b)(1)(A)(ii) effective at the time Quezada was sentenced required application of a sixteen level enhancement " [i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). Quezada stipulated in the plea agreement that he had been convicted of a crime of violence, and agreed that application of the sixteen level enhancement was appropriate.
In United States v. Grajeda, 581 F.3d 1186, 1187 (9th Cir. 2009), the Ninth Circuit held that assault with a deadly weapon in violation of Penal Code § 245(a)(1) is categorically a crime of violence under § 2L1.2(b)(1)(A)(ii). Id. at 1189 (" In this appeal, we consider whether a prior conviction for a violation of California Penal Code section 245(a)(1) qualifies as a 'crime of violence' within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). We conclude that it does. . . . [W]e conclude that section 245(a)(1) is categorically a crime of violence"). Grajeda remains good law; Quezada has cited no authority the court that calls its holding into question, nor is the court independently aware of any. Therefore, Judge Nguyen did not err in applying the sixteen level enhancement.
D. Whether Quezada Has Shown his Counsel Provided Ineffective Assistance
Quezada also argues that he " do[es]n't [receive] good legal assistance from [his] counsel." It is unclear whether Quezada intends to communicate that he would like the court to appoint counsel to assist him with his § 2255 petition or whether he intends to assert that he received ineffective assistance of counsel from the federal public defender who represented him in proceedings before Judge Nguyen. Because Quezada is pro se, the court construes his statement as an argument that he did not receive effective assistance of counsel prior to and at sentencing. See United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2001) (" Pro se complaints and motions from prisoners are to be liberally construed").
Motion at 5.
1. Legal Standard Governing Claims for Ineffective Assistance of Counsel
The Sixth Amendment provides criminal defendants the right to effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (" It has long been recognized that the right to counsel is the right to the effective assistance of counsel"). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel's actions fell outside the range of professionally competent assistance, and (2) that petitioner suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Anderson v. Calderon, 232 F.3d 1053, 1084 (9th Cir. 2000); Morrison v. Estelle, 981 F.2d 425, 427 (9th Cir. 1992) (" Defendants must prove that their counsel's performance fell below an objective standard of reasonableness and, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different"). If petitioner fails to establish either prong, his claim for ineffective assistance fails. Strickland, 466 U.S. at 697.
The first prong of the test requires a " showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Judicial scrutiny of counsel's performance is highly deferential, and the court must judge the reasonableness of an attorney's challenged conduct on the facts of the particular case. See id. at 689-90.
As a general rule, courts will not second-guess the strategic choices made by counsel. See id. at 690-91. " A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. See also Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Failure to pursue meritless claims and arguments does not constitute ineffective assistance. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982) (" The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel").
To establish prejudice under the second Strickland prong, a petitioner must show that there is " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Demonstrating prejudice requires more than a showing that the error in question might have had some conceivable effect on the outcome of the proceeding. Rather, there must be " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Prejudice cannot be shown based on failure to raise an argument that would have had little chance of success. See Wilson v. Henry, 185 F.3d 986, 992 (9th Cir. 1999) (" Because the motion almost certainly would have been denied, no prejudice accrued to Wilson from his counsel's failure to make a motion on these grounds"); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (" Because the evidence is overwhelming, petitioner was not prejudiced by trial counsel's failure to raise the issue of the sufficiency of the evidence before the court"); Morrison, 981 F.2d at 429 (" Because Morrison's appellate counsel would not have been successful in arguing inadequate notice of a felony-murder charge, Morrison does not sustain his burden of proving ineffective assistance of counsel through the two-prong test set forth in Strickland ").
2. Whether Quezada Has Shown That Counsel Provided Ineffective Assistance of Counsel
Quezada's ineffective assistance of counsel claim relies on the single, conclusory allegation that he did not receive " good legal assistance from [his] counsel." His claim is not supported by any citation to the record or any other evidence that demonstrates the manner in which counsel's conduct was objectively unreasonable or prejudicial. Quezada does not explain what his lawyer did or did not do that was deficient, nor how the alleged action or inaction prejudiced him. To the extent he contends that counsel was ineffective because he advised Quezada to agree that the assault conviction triggered application of a sixteen level enhancement, the claim fails because, as noted, Judge Nguyen did not err in applying the enhancement. Consequently, defendant's ineffective assistance of counsel claim fails.
Motion at 5.
Indeed, because counsel objected to the presentence report, the court found that Quezada had nine criminal history points rather than ten; this reduced Quezada's sentence by nine months. (See Defendant's Objection to Presentence Report and Position Regarding Sentencing, Case No. CR 12-00208 MMM, Docket No. 20 (May 8, 2012).)
E. Whether Quezada's Good Behavior or Family Circumstances State a Claim for Relief Under § 2255
Quezada also appears to request that the court reduce his sentence based on good post-sentencing behavior and extraordinary family circumstances. Good behavior is not a ground on which a court can grant habeas relief. See Lin Guang v. United States, 11 CIV. 7011 RMB, 2013 WL 870266, *5 (S.D.N.Y. Mar. 7, 2013) (" Although good behavior and rehabilitation are commendable, they do not provide grounds for relief pursuant to 28 U.S.C. § 2255, " citing Ortiz v. United States, 93 CIV. 1184 (KMW) , 1993 WL 205032, *1 (S.D.N.Y. June 11, 1993)); Abreu v. United States, 90 CR. 753 (RJW), 1996 WL 243295, *3 (S.D.N.Y. May 10, 1996) (" Finally, petitioner's good conduct during the period of his incarceration, demonstrated by certificates documenting his successful completion of various courses offered to inmates by the Bureau of Prisons, does not provide an appropriate basis for this Court to modify petitioner's sentence"). U.S.S.G. § 5K2.19 provides:
Motion at 5.
" Post sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense. (Such efforts may provide a basis for early termination of supervised release under 18 U.S.C. § 3583(e)(1).)" U.S.S.G. § 5K2.19.
See also Torres v. United States, No. CR 03-5436 03 AWI, 2007 WL 2781124, *3 (E.D. Cal. Sept. 21, 2007) (" Section 5K2.19 directly and unambiguously contradicts Petitioner's claim to entitlement to downward departure based on Petitioner's efforts to rehabilitate himself following his conviction and sentencing"). Accordingly, Quezada's request for a reduction in his sentence due to post-sentencing rehabilitation fails.
Extraordinary family circumstances likewise are not a basis for habeas relief. See Hamilton v. United States, No. 06-CR-179, 2008 WL 189933, *3 (N.D.N.Y. Jan. 18, 2008) (" [E]xtraordinary family circumstances . . . are not grounds for habeas relief"); Ayeni v. United States, No. 04 Civ. 6607(DLC), 03 CR. 174(DLC), 2004 WL 2238508 (S.D.N.Y. Oct. 4, 2004) (" To the extent that certain papers appended to Ayeni's petition appear to describe family events occurring after Ayeni's sentencing date, . . . [t]he grounds for a post-conviction reduction in sentence are severely restricted and are set out in Rule 35, Fed.R.Crim.P. This petition does not present any of the grounds identified in that Rule"). Consequently, these arguments fail.
III. CONCLUSION
For the reasons stated, the court denies Quezada's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the motion, files, and records in this action " conclusively show that the prisoner is entitled to no relief, " an evidentiary hearing is unnecessary. See 28 U.S.C. § 2255; see also Zuno-Arce, 209 F.3d at 1102.
JUDGMENT
On May 21, 2015, the court entered an order denying petitioner Cesar O. Quezada's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Accordingly, IT IS ORDERED AND ADJUDGED
1. That Quezada's § 2255 motion be denied with prejudice; and
2. That the action be, and it hereby is, dismissed.