Opinion
CV-22-02066-PHX-DLR (ASB) CR-21-00496-PHX-DLR
12-04-2023
United States of America, Respondent/Plaintiff, v. Damion Andre Williams, Movant/Defendant.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge
Movant Damion Andre Williams, who is confined in the Federal Correctional Institution in Phoenix, Arizona, has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (CVDoc. 1, CR21Doc. 42).
Documents filed in CV-22-02066-PHX-DLR (ASB) will be referred to as “CVDoc.” Documents filed in the related criminal action, CR-21-00496-PHX-DLR, will be referred to as “CR21Doc,” and documents filed in the additional criminal action, CR-14-0398-1-PHX-DLR, will be referred to as “CR14Doc.”
BACKGROUND
In February 2015, Movant pled guilty to two felony counts in CR 14-0398-1-PHX-DLR (the “2014 case”). (CR14Doc. 126.) On May 4, 2015, the Court sentenced Movant to 48 months' imprisonment for each count, to run concurrently. (CR14Doc. 173, 179.) The Court further imposed a concurrent three-year term of supervised release on each count. (Id.) On December 7, 2018, following Movant's admission to violating a condition of his supervised release, the Court revoked Movant's supervised release and ordered Movant to a term of time-served custody, to be followed by 33 months' supervised release on each count, to run concurrently. (CR14Doc. 272.)
On June 29, 2021, a federal grand jury returned an indictment against Defendant in CR 21-00496-PHX-DLR (the “2021 case”), charging Defendant with one felony count (felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)) and containing a forfeiture allegation. (CR21Doc. 1.) A combined change of plea hearing in the 2021 case and admit/deny hearing in the 2014 case occurred on August 26, 2021. (CR14Doc. 264, CR21Doc. 18.) At that hearing, the Court discussed with the parties the plea agreement entered into by the parties in the 2021 case, which addressed both the 2014 and 2021 cases. (CR21Doc. 33.) In their agreement, the parties stipulated that Movant's sentence in the 2021 case would not exceed the low end of the Sentencing Guidelines range, and they further stipulated that Movant's “sentence for violating supervised release” in his 2014 case would “not exceed the low end of the applicable policy statement range.” (Id.)
At the combined change of plea-admit/deny hearing, the Court confirmed with Movant that he understood his sentences in each case could run consecutively to one another, and that the supervised release violation terms imposed in the 2014 case could run consecutively to one another because the 2014 case involved two felony counts of conviction. (CVDoc. 5-1, Att. A at 6-8, CR21Doc. 40 at 6-8.) Movant's counsel informed the Court that he had given an estimate of what Movant's sentence might be, but he emphasized that it was only an estimation and “in other words, there's (sic) no promises.” (Id. at 8-9.) The Court agreed with counsel's statement that it was only an “educated prediction” because “certain guideline issues have to be decided and they will be decided by Judge Rayes and that's what makes it unpredictable.” (Id. at 9.) Upon inquiry by the Court, Movant indicated he understood. (Id.) It was further acknowledged that the sentencing judge would have to provide Movant and the Government a chance to withdraw from the plea agreement if Movant were not sentenced in accordance with the agreement. (Id. at 9-10.)
A combined sentencing (in CR 21-00496-PHX-DLR) and final disposition hearing (in CR 14-0398-1-PHX-DLR) took place on November 16, 2021. (CVDoc. 5-1, Att. B, CR21Doc. 41.) In preparation for the hearing, a disposition report was prepared. (CR14Doc. 294.) The disposition report erroneously indicated that there was “[n]o agreement” between the parties to disposition; this oversight was not corrected before or during the disposition hearing. (Id. at 5.) The advisory range for each of the counts in the 2014 case was 5 to 11 months' incarceration. (Id.) The Court varied downward below the parties' stipulated cap of the low-end of the advisory Guidelines range and sentenced Movant to 48 months' imprisonment in the 2021 case. (CVDoc. 5-1, Att. B at 20.) Movant was further ordered to serve 10 months as to each of the two counts in the 2014 case, to be concurrently with each other, but consecutively to the sentence imposed in the 2021 case. (Id. at 22-23.) After imposing sentence, the Court asked both counsel whether Movant had been sentenced in accordance with the plea agreement, and both counsel agreed that he had. (Id. at 24.) The Court found that Movant had been sentenced pursuant to the terms of the plea agreement, reminded Movant of the waiver of appeal rights in the plea agreement, and advised Movant of the time limit for filing a notice of appeal. (Id.) The Judgment and Commitment issued in the 2021 case on November 19, 2021. (CR21 Doc. 35.) On the same day, an Order Revoking Supervise Release was entered in the 2014 case. (CR14Doc. 297.)
On December 1, 2021, Movant timely filed a notice of appeal in the 2014 case. (CR14Doc. 299.) He did not file a notice of appeal in the 2021 case. On appeal, Movant argued that the District Court had violated Rule 11 of the Federal Rules of Criminal Procedure and erred by failing to impose a “revocation sentence” capped at the low end of the applicable policy statement range for each of the respective revocation counts. (CVDoc. 5-1, Att. C.) Thus, Movant contended, his appellate waiver was invalid, his revocation sentence should be vacated, and he should be re-sentenced consistent with the binding terms of his plea agreement. (Id.)
On December 6, 2022, and while the appeal was pending, Movant filed the instant Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CVDoc. 1, CR21Doc. 42). Movant did not file such a motion in the 2014 case. In his Motion, Movant challenged his “total sentence of 58 months” for the 2021 offense and his supervised release violation. (Id.) The government filed its Limited Answer on February 13, 2023. (CVDoc. 5.)
Meanwhile, in the appellate matter, the parties filed a Joint Motion to Remand Case to the District Court for Resentencing. (CVDoc. 5-1, Att. D.) In the Joint Motion, the parties acknowledged that counsel had “mistakenly” agreed that the district court had sentenced Movant in accordance with the terms of the plea agreement, and that the low end of the revocation range was five months on each of the two counts. (Id. at 2-3.) The United States agreed not to enforce the appellate waiver and that the matter should be remanded for resentencing consistent with the plea agreement. (Id. at 3.) The parties' Joint Motion was granted by the Ninth Circuit Court of Appeals. (CR14Doc. 317-1.) The District Court's Order revoking Movant's supervised release was vacated, and the 2014 case was remanded “to the district court for resentencing consistent with the stipulation in the plea agreement as to the sentence for [Movant's] supervised release violation.” (Id.) The Ninth Circuit entered its formal mandate on March 1, 2023. (CR14Doc. 317.)
On remand from the Ninth Circuit, the District Court held a disposition hearing in the 2014 case on May 1, 2023. (CR14Doc. 324.) An amended disposition report was prepared, and it correctly reflected the stipulation regarding disposition in the plea agreement. (See CR14Doc. 321 at 6 (“Disposition Agreement Provisions - Not to exceed the low end of the guideline range”).) The report further reflected a range of 5-11 months. (Id.) The Court revoked Movant's supervised release and ordered Movant to serve 4 months on each count of revocation, to be served consecutively to each other, and consecutively to the term of imprisonment imposed in the 2021 case. (CR14Doc. 325.) Movant did not appeal the revocation sentence imposed in May 2023.
On May 10, 2023, Movant filed his Reply to the instant Motion. (CVDoc. 9.) On May 24, 2023, the government filed a Notice of Supplemental Authority (CVDoc. 11) to address the impact of the resentencing on this matter.
DISCUSSION
In his Motion, Movant raises two grounds for relief. In Ground One, Movant alleges he was denied ineffective assistance of counsel during the “plea phase” because his counsel did not fully explain the terms of his plea agreement, failed to object when the government sought a sentence outside the terms of the plea agreement, and incorrectly told the Court that Movant had been sentenced in accordance with the terms of the plea agreement. (CVDoc. 1 at 5.) In Ground Two, Movant alleges he was denied ineffective assistance of counsel during the “sentencing phase” when his counsel failed to object when the government sought a sentence outside the terms of the plea agreement or when the government told the Court he had been sentenced per the plea agreement's terms, incorrectly told the Court that Movant had been sentenced in accordance with the terms of the plea agreement, and failed to inform Movant that Movant could appeal the sentence because the sentence was outside the stipulation contained in the plea agreement. (Id. at 6.)
In its Limited Answer, the government argues that the Motion, which was only brought in the 2021 case, is procedurally defaulted. The Answer goes on to contend that even if the Motion were construed to challenge the disposition in the 2014 case, the Motion should be denied because the disposition was pending on appeal at the time the Motion was filed. In its Notice of Supplemental Authority, the government advises that the Ninth Circuit granted the parties' joint motion for remand and remanded the matter to the District Court for resentencing that was consistent with the parties' stipulation that the supervised release disposition not exceed the low end of the range. (CVDoc. 11.) The government also emphasizes that following remand, Movant was resentenced to four months on Count 1 and four months on Count 2, running consecutively to one another, and that Movant agreed that the disposition was consistent with the stipulation in his plea agreement regarding his supervised release violation. (Id.) Movant did not appeal after he was resentenced. Thus, the government argues, Movant has acknowledged his sentences are consistent with the terms of his plea agreement and he is unable to show prejudice from any ineffective assistance of counsel during the initial sentencing proceeding. (Id.) Thus, the government contends the Motion is not only untimely, but is lacks merit.
I. Legal Standard
Under 28 U.S.C. § 2255(a), a person in custody may “move the court which imposed the 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.”
“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)); see also Massaro v. United States, 538 U.S. 500, 504 (2003) (“[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the Movant shows cause and prejudice.”). “However, “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the Movant could have raised the claim on direct appeal.” 538 U.S. at 504. Indeed, ineffective assistance of counsel claims are “‘generally inappropriate on direct appeal' and should be raised instead in habeas corpus proceedings.” United States v. Steele, 733 F.3d 894 (9th Cir. 2013) (quoting United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).
The Court reviews claims of ineffective assistance of counsel under the two-part test set forth in Stricklandv. Washington, 466 U.S. 668 (1984). Under Strickland, Movant must show: (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense. 466 U.S. at 687. This Court has discretion to review the two prongs of the Strickland test in any order and need not address both prongs if Movant makes an insufficient showing in one. See Strickland, 466 U.S. at 697.
II. Analysis
At the outset, the Court recognizes the unusual procedural posture of the matter. Movant's plea agreement concerned the new crime in the 2021 case and the supervised release violation in the 2014 case. The plea agreement stipulated he would receive no more than the low end of the Guidelines range for the 2021 case. It is undisputed that he was sentenced in accordance with that stipulation. Movant filed the instant Motion in the 2021 case. It is further undisputed that Movant was ordered to serve 10 months on each of his supervised release violations in the 2014 case, but the plea agreement had stipulated a cap at the low end for each count (and therefore no more than 5 months on each count could have been imposed). It is also undisputed that Movant filed a direct appeal in the 2014 case, the parties agreed to remand the 2014 case for re-sentencing, and Movant was re-sentenced to 4 months on each count on remand. It is against this backdrop that the Court considers the instant Motion, which was only filed in the 2021 case.
The parties disagree as to whether the Court should consider Movant's arguments in the context of the 2014 case, in addition to the 2021 case. As discussed below, the Court assumes arguendo that it may consider both cases. Because the Court's analysis varies depending on which of Movant's criminal matters is considered, the Court separately discusses each matter. The Court first analyzes the 2021 case because that is the criminal case in which the instant Motion was filed. (CR21Doc. 42.)
A. 2021 Criminal Case
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) established both procedural and substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. Specifically, under section 2255(f), a motion to vacate, set aside, or correct a federal sentence must be filed within one year of the latest of the date on which: (1) the judgment of conviction became final; (2) an impediment to making a motion created by governmental action was removed, if such action prevented the Movant from making a motion; (3) the right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the facts supporting the claim or claims presented could have been discovered through the existence of due diligence. The instant Motion, which was filed in the 2021 case only, was filed more than a year after the judgment became final.
In his memorandum in support of the Motion, Movant concedes that he did not file a direct appeal in the 2021 matter. (CVDoc. 1 at 5.) However, Movant argues that his failure to seek appellate review does not preclude him from collaterally attacking due to ineffective assistance of counsel. (CVDoc. 2 at 8.)
Although the “general rule” is that a claim is procedurally defaulted in a habeas action if it was not first brought on direct appeal, challenges for ineffective assistance of counsel may first be brought in a § 2255 motion. Massaro, 538 U.S. at 504. Thus, Movant may raise his ineffective assistance of counsel claim for the first time in the instant Motion.
Although the Court agrees with the Government that Movant did not file a direct appeal in the 2021 case (CVDoc. 5 at 6), the Court disagrees that the ineffective assistance claim is procedurally defaulted, in light of Massaro's holding.
“Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro, 538 U.S. at 505. Thus, a defendant must first show that counsel's representation fell “below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's performance falls within the wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland.” Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).
With respect to the second prong, “Strickland asks whether it is ‘reasonably likely' the result would have been different” if counsel had acted differently. Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting Strickland, 466 U.S. at 696). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. (quoting Strickland, 466 U.S. at 693, 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693).
Here, Movant entered into a stipulation that he be sentenced to no greater than the low end of the Guidelines range in his 2021 case. He was sentenced in accordance with that stipulation. Movant has failed to show that his attorney fell below an objective standard of reasonableness or that he was prejudiced in any way, during either the plea phase or sentencing phase of the 2021 case. Indeed, in his filings, Movant has failed to specifically argue any deficiency of his counsel related to the 2021 case. (See Docs. 1, 2, and 9.) Rather, Movant's focus is clearly on the 2014 case. (See id.) For example, in the portion of his memo in support of his Motion concerning ineffective assistance of counsel, Movant discusses only the “Violation Case.” (Doc. 2 at 11-12.) He goes on to preemptively argue that the issues in his 2014 case can be raised in the instant Motion under the 2021 case's number. (Id. at 12-13.) Similarly, in his Reply, he argues, “[T]he plea agreement drafted by the United States said that they would request a sentence at the low-end of Williams (sic) guideline range in the Violation Case - that did not happen,” and “[defense counsel] standing silent and allowing Williams not to receive the benefit of his bargain [] easily satisfies Strickland's deficiency prong.” (Doc. 9 at 5-6.)
Despite the clear focus of Movant's filings being on his 2014 case, the Court acknowledges that Movant alleges his attorney guaranteed him a sentence of 37 months before his change of plea hearing. (Doc. 2, Exh. A at ¶¶ 7, 9.) In a footnote to his memo, Movant seemingly makes the claim of ineffective assistance due to the guaranteed sentence, then abandons the claim, then concludes the footnote by alternatively requesting he be sentenced to a term of 37 months. (Doc. 2, n. 14.) However, later in his memo, Movant concedes that the plea agreement “was favorable for him” and states he is only seeking the “benefit of his bargain” (id. at n.16), and his entire memo is underpinned by his supervised release case arguments. (Doc. 2.) To the extent Movant is actually making an ineffective assistance of counsel claim in the 2021 case based on a supposedly guaranteed sentence by his counsel, as inarticulately as it stands on the record before the Court, the claim fails. Movant has not met the Strickland test, and his claim is belied by the record, for the reasons described below.
1. Ground One (Plea Phase)
Movant's first ground for relief concerns counsel's alleged deficient performance at the plea stage. The ground fails for various reasons.
First, as detailed above, Movant's counsel stated on the record during the change of plea hearing that he had provided Movant with his best estimate as to what the low end of the range would be (37 months), but counsel expressed uncertainty as to what the ultimate cap might be. (CVDoc. 5-1, Att. A at 8-9.) Counsel even went so far as to explicitly state that the Guidelines calculation was “a bit more complex than normal” and there were “no promises” that counsel's estimation that 37 months was the low end of the range was correct. (Id. at 9.)
Second, Movant was then correctly advised by the Magistrate Judge at the change of plea hearing that the Guidelines prediction by counsel was only an educated prediction and Judge Rayes would have to decide “certain guideline issues.” (CVDoc. 5-1, Att. A at 9.) When a court explains to a defendant the discretion the court has with respect to what a sentence might be, and that explanation occurs before the guilty plea is accepted, there can be no showing that a defendant “suffered prejudice from his attorney's prediction.” Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). The record shows the Magistrate Judge did indeed explain the discretion Judge Rayes had. (CVDoc. 5-1, Att. A at 9.) The Magistrate Judge went so far as to characterize the Guidelines determination Judge Rayes would make as “unpredictable.” (Id.) In addition, after the change of plea hearing, and before sentencing, Judge Rayes entered an order accepting the guilty plea. (21CRDoc. 22.) Thus, under Doganiere, Movant cannot demonstrate prejudice.
Moreover, after explaining that counsel's prediction was only a prediction, and that Judge Rayes would make the ultimate determination under the Guidelines, the Magistrate Judge asked Movant if he understood all of that. (CVDoc. 5-1, Att. A at 9.) Movant unequivocally responded, “Yes, Your Honor.” (Id.) “In assessing the voluntariness of the plea, statements made by a criminal defendant contemporaneously with his plea should be accorded great weight.” Chizen v. Hunter, 809 F.2d 560, 562 (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). That is, Movant's own “solemn declarations made in open court carry a strong presumption of verity.” Id.
On the record before it, the Court concludes Movant has failed to show his counsel's performance fell below an objective standard of reasonableness or that he suffered prejudice. Therefore, the Court will recommend that Ground One be denied.
2. Ground Two (Sentencing Phase)
In this ground, Movant argues that he was denied effective assistance of counsel at the sentencing stage of his case. However, Movant's argument is devoted entirely to the 2014 case. (Doc. 2 at 14-15.) Movant does not contend that he was denied effective assistance vis-a-vis the sentence he received in the 2021 case. (See id.) This lack of argument regarding the sentence in the 2021 case aligns with the record, because Judge Rayes varied downward and sentenced Movant below the parties' stipulated cap of the low-end of the Guidelines range in that case. (CVDoc. 5-1, Att. B at 20.) Any claim that counsel was ineffective fails because Movant's sentence in the 2021 case was below the cap for which he had bargained. Movant has failed to demonstrate error by counsel or prejudice. Therefore, the Court will recommend that Ground Two be denied.
B. 2014 Criminal Case
Because this matter was only filed regarding the 2021 case, the Government has argued the Court need not reach the 2014 case. Movant counters that the underlying plea agreement was filed only in the 2021 case but concerned both matters, and that the two cases have been addressed together since 2021. Assuming arguendo that Movant's challenge is to the 2014 case and the Court can consider it as having been filed in that additional case, the ineffective assistance of counsel claim fails.
First, the Court notes that case law suggests an analysis of these grounds regarding a supervised release matter may not be necessary. An ineffective assistance of counsel claim is rooted in the Sixth Amendment. Strickland, 466 U.S. at 684-86. The Ninth Circuit has held that “the Sixth Amendment has no application to supervised release proceedings.” United States v. Spangle, 626 F.3d 488, 494 (9th Cir. 2010) (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“We begin with the proposition that the revocation of parole is not a part of a criminal prosecution and thus the full panoply of rights due a defendant does not apply to parole revocations . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.”)). Thus, because there is no Sixth Amendment right to counsel at a revocation proceeding, Movant cannot establish an entitlement to habeas relief for ineffective assistance of counsel. See id; see also United States v. Owen, 854 F.3d 536, 541 (8th Cir. 2017) (concluding the Sixth Amendment right to counsel does not apply to a revocation proceeding), United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (same), and United States v. Pelensky, 129 F.3d 63, 68 n.8 (2d Cir. 1997) (same). Notwithstanding the above, in an abundance of caution, the Court will analyze the claims.
1. Ground One (Plea Phase)
Movant's first ground for relief alleges deficient performance by counsel during the plea proceedings. However, the argument fails for the same reasons as under Section II.A.1, above, and that analysis is incorporated by reference here. At the admit/deny hearing in the 2014 case, which was combined with the change of plea hearing in the 2021 case, defense counsel clearly indicated the uncertainty in how the Guidelines would be calculated, and the Magistrate Judge warned Movant that counsel's estimation was only an estimation. (CVDoc. 5-1, Att. A at 8-9.) The Magistrate Judge further warned Movant that Judge Rayes would have to make the Guidelines determination and that the ultimate result could not be predicted. (Id. at 9.) Movant indicated he understood. (Id.) Under the case law cited above by the Court, Movant cannot establish prejudice and the Court will recommend that this ground be denied.
2. Ground Two (Sentencing Phase)
In Ground Two, Movant argues that he was denied effective assistance of counsel at the sentencing phase of his violation case because his attorney failed to object when Movant was ordered to serve more than the low end of the range on his supervised release violations, failed to object when the Government agreed with the Court that Movant had been sentenced in accordance with the plea agreement, and agreed with the Court that Movant had been sentenced per the terms of the plea agreement. (Doc. 2 at 14.) However, the record clearly shows that after Movant appealed the supervised release disposition, the parties agreed to remand back to the District Court for resentencing. (CR14Doc. 317-1.) Following the Ninth Circuit's mandate, Movant was resentenced in May 2023. (CR14Doc. 325.) At resentencing, Movant was ordered to serve below the low-end cap for each of his supervised release violation counts. (Id.)
To establish prejudice from counsel's errors, Movant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. The court need not determine whether counsel's performance was deficient before examining whether prejudice resulted from the alleged deficiencies. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697).
Because Movant was sentenced below the cap upon resentencing, the Court cannot conclude Movant has been prejudiced. Therefore, on the record that is before it, the Court concludes that Movant has failed to satisfy the Strickland standard for this ineffective assistance claim. Consequently, the Court recommend that Ground Two be denied.
III. Evidentiary Hearing
The Court concludes that Movant is not entitled to an evidentiary hearing on his claims because “the motion and the files and records of the case conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255(b). The testimony of Movant or his counsel would add little or nothing to record before the Court. “Section 2255 itself ‘recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.'” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). Although the Court recognizes “that when the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive... this is one of those cases in which an issue of credibility may be conclusively decided on the basis of documentary testimony and evidence in the record.” See Watts, 841 F.2d at 277 (internal citation and quotation marks omitted) (noting “[w]hen section 2255 motions are based on alleged occurrences entirely outside the record, which if true would support relief, the court must conduct a hearing on those allegations ‘unless, viewing the petition against the record, its allegations do not state a claim for relief or are so patently frivolous or false as to warrant summary dismissal.'”) Here, because there is no evidence to support Movant's claims and the evidence in the record is contrary to his allegations, this Court “is able to determine without a hearing that the allegations are without credibility.” United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991).
CONCLUSION
For the foregoing reasons, the Court finds that the claims presented in the Motion fail on the merits. Movant has not raised facts or issues that entitle him to an evidentiary hearing on his claims. Accordingly, the Court will recommend that the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 be denied. Accordingly, IT IS RECOMMENDED that the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 1 in CV-22-02066-PHX-DLR (ASB), Doc. 42 in CR-21-00496-PHX-DLR) be DENIED and that CV-22-02066-PHX-DLR (ASB) be DISMISSED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.