Roberto Garcia v. United States of America, No. 2:2012cv10661 - Document 15 (C.D. Cal. 2013)
Court Description: ORDER DENYING HABEAS RELIEF PURSUANT TO28 USC 2255 1 by Judge Dean D. Pregerson (Made JS-6. Case Terminated.). (lc). Modified on 9/3/2013 (lc).
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Roberto Garcia v. United States of America Doc. 15 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERTO GARCIA, 12 13 Plaintiff, v. 14 UNITED STATES OF AMERICA, 15 Defendant. 16 ___________________________ 17 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-10661 DDP T [CR 11-00214 DDP] ORDER DENYING HABEAS RELIEF PURSUANT TO 28 U.S.C. § 2255 [Docket No. 1 ] I. Background 18 Petitioner Roberto Garcia has filed for habeas relief pursuant 19 to 28 U.S.C. § 2255. 20 was sentenced in state court for sale or transportation of 21 methamphetamine. 22 Report (“PSR”) ¶ 52, Government’s Opposition (“Opp’n”) Ex. I (under 23 seal).) 24 months imprisonment for being an illegal alien who entered the 25 United States following deportation, in violation of 8 U.S.C. § 26 1326(a). 27 his federal charge, April 2011, he had nine months remaining on his 28 August 2010 state court sentencing. (Docket No. 1.) In August 2010, Petitioner (United States Probation Office Presentence In December 2011, this Court sentenced Defendant to 46 Petitioner states that at the time he was arraigned for (Mot. attachment at 1.) Dockets.Justia.com 1 Petitioner seeks habeas relief because his counsel failed to 2 request that his federal sentence run concurrently with his state 3 sentence. 4 II. Legal Standard 5 A petitioner may move to vacate, set aside, or correct his/her 6 sentence “upon the ground that the sentence was imposed in 7 violation of the Constitution or laws of the United States, or that 8 the court was without jurisdiction to impose such sentence, or that 9 the sentence was in excess of the maximum authorized by law, or is 10 otherwise subject to collateral attack.” 11 any of these grounds exist, the court “shall vacate and set the 12 judgment aside and shall discharge the prisoner or resentence him 13 or grant a new trial or correct the sentence as may appear 14 appropriate.” 15 28 U.S.C. § 2255(a). If 28 U.S.C. § 2255(b). Under section 2255, “a district court must grant a hearing to 16 determine the validity of a petition brought under that section, 17 ‘[u]nless the motions and the files and records of the case 18 conclusively show that the prisoner is entitled to no relief.’” 19 United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) 20 (quoting 28 U.S.C. § 2255) (emphasis and alternation in original). 21 “The district court may deny a section 2255 motion without an 22 evidentiary hearing only if the movant's allegations, viewed 23 against the record, either do not state a claim for relief or are 24 so palpably incredible or patently frivolous as to warrant summary 25 dismissal.” 26 Cir. 1998) (quoting United States v. Burrows, 872 F.2d 915, 917 27 (9th Cir.1989)). 28 /// United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th 2 1 2 3 4 5 III. Analysis Sentencing Guideline § 5G1.3(c) states: (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. 6 The amended application notes for § 5G1.3(c) state that “the court 7 should consider the following” in determining whether to order 8 concurrent or consecutive sentences: 9 10 11 12 13 14 (I) The factors set forth in 18 U.S.C. 3584 (referencing 18 U.S.C. 3553(a)); (ii) The type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) The time served on the undischarged sentence and the time likely to be served before release; (iv) The fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) Any other circumstance relevant to the determination of an appropriate sentence for the instant offense. 15 Because this Court did not address the issue, Petitioner’s 16 federal sentence runs consecutive to his state court sentence. 18 17 U.S.C. § 3584. Petitioner asks for habeas relief on grounds that 18 this Court committed plain error by not considering his prior 19 sentence and his counsel provided ineffective assistance by not 20 alerting this court to the prior sentence, and, thus, the 21 possibility of concurrent sentencing. 22 A. Plain Error 23 To show plain error, Petitioner must show that: 24 25 26 27 (1) there was ‘error’; (2) it was ‘plain’; and (3) that the error affected ‘substantial rights.’ If these conditions are met, [this court] may exercise [its] discretion to notice the forfeited error only if the error (4) seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings. 28 3 1 United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir.2000) 2 (internal quotation marks and citations omitted) (quoting United 3 States v. Olano, 507 U.S. 725, 732 (1993)). 4 Petitioner cites the Ninth Circuit decision of United States 5 v. Chea, for the proposition that it was plain error not to 6 consider running his sentences concurrently. 7 United States v. Chea, 231 F.3d 531, 533 (9th Cir. 2000) 8 (explaining how a court’s “failure to consider a defendant's 9 undischarged term of imprisonment and Sentencing Guideline Section He is right. See 10 5G1.3(c)” in imposing a sentence was plain error and required 11 resentencing). 12 required under rule 52, is not applicable in the § 2255 context. 13 “Because it was intended for use on direct appeal, . . . the ‘plain 14 error’ standard is out of place when a prisoner launches a 15 collateral attack against a criminal conviction after society’s 16 legitimate interest in the finality of the judgment has been 17 perfected by the expiration of time allowed for direct review or by 18 the affirmance of conviction on appeal.” 19 456 U.S. 152, 164 (1982). 20 However, the plain error standard, which is United States v. Frady, Additionally, Petitioner did not appeal his sentence. (§ 2255 21 motion at 3.) 22 been raised on direct appeal have been waived and generally may not 23 be reviewed by way of 28 U.S.C. § 2255.” 24 Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994). 25 ineffective assistance of counsel is a “constitutional violation” 26 that is “treated differently.” 27 not bringing Petitioner’s state sentence to the Court’s attention, 28 and the petitioner suffered prejudice as a result, then Petitioner “Nonconstitutional sentencing errors that have not Id. 4 United States v. However, If counsel was ineffective in 1 will be entitled to § 2255 relief. 2 F.3d 1155, 1157 (9th Cir. 1996) (declining to analyze a sentencing- 3 based claim for relief because it was not raised on direct appeal, 4 but analyzing a claim that counsel was ineffective for failing to 5 make the sentencing argument to the court); United States v. 6 Whitefield, 1:95-CR-5111 OWW, 2006 WL 2472773 (E.D. Cal. Aug. 23, 7 2006) (refusing to analyze a Chea claim on habeas because 8 Petitioner did not claim ineffective assistance of counsel). 9 United States v. McMullen, 98 Thus, there is no § 2255 relief for petitioner independent of 10 his claim that counsel’s failure to make a concurrent sentencing 11 argument constituted ineffective assistance. 12 B. Ineffective Assistance of Counsel 13 To prevail on a claim of ineffective assistance of counsel, a 14 convicted defendant must show both (1) that counsel's performance 15 was deficient; and (2) that “the deficient performance prejudiced 16 the defense.” 17 The defendant bears the burden of establishing both prongs of the 18 claim of ineffective assistance of counsel. 19 Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). 20 defendant fails to satisfy either prong, the claim of ineffective 21 assistance of counsel must fails. 22 order to show prejudice, 23 reasonable probability that, but for counsel’s unprofessional 24 errors, the result of the proceeding would have been different.” 25 Id. at 694; Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998). 26 reasonable probability is less than a preponderance of the evidence 27 and is a probability sufficient to undermine confidence in the 28 outcome. Strickland v. Washington, 466 U.S. 668, 687 (1984). United States v. If the Strickland, 466 U.S. at 687. In a defendant must show that “there is a See Kyles v. Whitley, 514 U.S. 419, 434 (1995); 5 A 1 Strickland, 466 U.S. at 694. 2 counsel's performance was deficient before examining the prejudice 3 suffered by the defendant as a result of the alleged deficiencies.” 4 Id. at 697. 5 “[A] court need not determine whether “[I]neffective assistance of counsel during a sentencing 6 hearing can result in Strickland prejudice because ‘any amount of 7 [additional] jail time has Sixth Amendment significance.’” 8 v. Cooper, 132 S. Ct. 1376, 1386 (2012). 9 basis to claim that a difference in the outcome would be reasonably 10 probable; mere speculation of a different sentence is insufficient. 11 See, e.g., Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 12 1996) (denying an ineffective-assistance claim where “only the 13 possibility existed that [a defendant] would receive a concurrent 14 sentence” if his counsel raised the issue); Welker v. United 15 States, No. 06–48, 2009 WL 57139, at *4 (E.D.Mo. Jan.9, 2009) 16 (“Because such a decision is discretionary, there is only a 17 possibility, not a reasonable probability, that a court would 18 impose a concurrent rather than consecutive sentence if a motion 19 under § 5G1.3(c) is properly raised.”). 20 Lafler A petitioner must have a Here, Defendant provides no evidence indicating that a 21 concurrent sentence would have been appropriate, nor does he claim 22 that the Court would have ordered one had counsel requested it. 23 Under § 5G1.3(c), this Court had discretion to run Petitioner’s 24 sentence concurrently, so it is possible that, absent counsel’s 25 purported error, this Court would have done so. 26 insufficient because Petitioner is required to show the reasonable 27 probability of a different outcome. 28 United States v. Law, CRIM.A. 08-77, 2012 WL 1671289, at *3-4 (E.D. 6 But possibility is Prewitt, 83 F.3d at 819; 1 Pa. May 14, 2012) (rejecting a similar § 5G1.3(c) habeas petition 2 for similar reasons). 3 counsel claim fails for this reason alone. 4 Petitioner’s ineffective assistance of Regardless, the amended application notes for § 5G1.3(c) 5 indicate that a consecutive sentence was appropriate for 6 Petitioner. 7 factors, Petitioner has a serious criminal record, which bears on 8 the 18 U.S.C. § 3553(a) factors. 9 (under seal).) For instance, although there were some mitigating (See generally PSR, Opp’n Ex. I In part because of his criminal history, this Court 10 imposed a sentence at the upper end of the Guidelines. 11 J (advising a sentence of 37 to 46 months; Ex. H (sentencing 12 Petitioner to 46 months). 13 more likely to be appropriate” when they are for “unrelated 14 behavior.” 15 Here, Petitioner has presented the Court with nothing that 16 indicates his methamphetamine-related sentence in state court was 17 related to his illegal entry sentence in federal court. 18 consecutive sentence would generally be appropriate in his case. 19 See id. (Opp’n Ex. Additionally, “concurrent sentences are Setser v. United States, 132 S. Ct. 1463, 1476 (2012). Thus, a Hence, Petitioner cannot show prejudice.1 20 21 22 23 24 25 26 27 28 1 Petitioner’s remaining ineffective assistance of counsel claims also fail. Because the Bureau of Prisons, not the district court, determines credit for time served, counsel did not prejudice Petitioner by failing to inform this Court of Petitioner’s request for such credit. See United States v. Wilson, 503 U.S. 329, 333-36 (1992). Additionally, Petitioner’s claim that counsel had insufficient communication with him may be inaccurate. (Opp’n Ex. N at 122-24 (declaration of counsel).) Regardless, Petitioner does not explain how any purported lack of communication prejudiced him. 7 1 2 IV. Conclusion For the reasons stated herein, the Petition is DENIED. 3 4 IT IS SO ORDERED. 5 6 7 Dated: September 3, 2013 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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