Salinas v. USA, No. 1:2011cv01844 - Document 1 (E.D. Cal. 2011)

Court Description: ORDER denying Motion to vacate (2255) signed by District Judge Lawrence J. O'Neill on 12/9/2011. (Lundstrom, T)
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Salinas v. USA Doc. 1 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, CASE NO. CR-F-08-00338-LJO 12 Plaintiff/Respondent, 13 14 15 ORDER ON PETITIONER’S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (Doc. 74) vs. DANIEL SALINAS, Defendant/Petitioner. / 16 17 18 INTRODUCTION Petitioner Daniel Salinas (“petitioner”) is a federal prisoner and proceeds pro se to vacate, set 19 aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“section 2255”). He asserts a jurisdictional 20 argument and several ineffective assistance of counsel claims. He also requests the Court to take judicial 21 notice of the fact that he intends to file a motion for leave to amend to file additional claims. This Court 22 construes petitioner’s request for judicial notice as a motion for leave to amend. Having considered 23 petitioner’s arguments, this Court DENIES petitioner’s section 2255 motion, GRANTS petitioner’s 24 motion for leave to amend, and DENIES the additional claims on their merits. 25 BACKGROUND 26 Indictment 27 From April of 2004 to September of 2008, petitioner robbed nine banks and attempted to rob a 28 tenth. During each of the robberies he carried a handgun. Petitioner stole a total of $190,307 during the 1 Dockets.Justia.com 1 heists. All of the deposits were federally insured. 2 On September 25, 2008, petitioner was indicted for nine counts of armed bank robbery, in 3 violation of 18 U.S.C. §§ 2113(a) & (d); one count of attempted armed bank robbery, in violation of 18 4 U.S.C. §§ 2113(a) & (d); and ten counts of carrying a firearm during a crime of violence, in violation of 5 18 U.S.C. § 924(c)(1). On September 26, 2008, petitioner was arraigned by a magistrate judge. Defense 6 counsel acknowledged receipt of the indictment in open court and petitioner pled not guilty. 7 8 Guilty Plea In October of 2008, the government offered to dismiss all counts from the indictment except for 9 two counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of 10 carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1), in exchange for 11 petitioner’s guilty plea. Petitioner chose not to accept the offer and the parties prepared for trial. After 12 terminating two court-appointed attorneys, attempting to terminate a third, and filing a pro se motion to 13 suppress, which the court ultimately denied, petitioner decided to accept the government’s initial offer. 14 Petitioner accepted the offer on April 29, 2010, the day the jurors were summoned and waiting for voir 15 dire. Due to the timing of petitioner’s acceptance, the parties were unable to prepare and enter into a 16 written plea agreement prior to the hearing. Accordingly, the parties agreed that petitioner would plead 17 guilty to the indictment, waive the right to bring a motion to withdraw the plea, and waive any right to 18 bring an appeal or collateral attack and the government would dismiss all counts of the indictment except 19 for two counts of armed robbery and two counts of carrying a firearm during a crime of violence. The 20 parties also agreed to memorialize the agreement in writing after the hearing. 21 The Court took a recess to give defense counsel the opportunity to advise petitioner regarding the 22 proceedings. During the recess, defense counsel informed petitioner that he would plead guilty to all 23 charged counts. The government would dismiss eight of the bank robberies and eight of the firearm 24 counts but had discretion to pick which robberies would be dismissed. Defense counsel also advised 25 petitioner that he would be required to waive his right to appeal and waive his right to bring a collateral 26 attack including the right to bring an ineffective assistance of counsel claim. 27 Before accepting petitioner’s guilty plea, the Court advised petitioner that he had the right to be 28 represented by an attorney at every stage of his case and that he had the right to appointed counsel. The 2 1 Court also advised petitioner that he had the right to a jury trial and the right to be represented by an 2 attorney at trial. The Court further informed petitioner of his rights to confrontation, i.e., his right to be 3 present in court at every proceeding in his case, the right to be present at the jury trial and to face the jury, 4 the right to challenge the government’s evidence, and the right to cross examination. The Court also 5 explained that petitioner had no duty to present evidence or prove anything at trial but if he had witnesses 6 that he wished to call who were unwilling to attend the trial, the Court would issue subpoenas to order 7 the witnesses to attend. The Court also advised petitioner of the privilege against self-incrimination. 8 9 Plea Agreement On July 12, 2010, the parties filed a written plea agreement with the Court memorializing their 10 oral agreement. In the agreement, petitioner waived any contention that his counsel was ineffective. He 11 also waived his right to appeal and to bring a collateral attack. The government agreed to move to 12 dismiss Counts 1-10 and 13-18 of the indictment. In the agreement, petitioner acknowledged 13 understanding that by pleading guilty he waived the following constitutional rights: 14 15 (a) to plead not guilty and to persist in that plea if already made; (b) to be tried by a jury; (c) to be assisted at trial by an attorney, who would be appointed if necessary; (d) to confront and cross-examine witnesses against him; and (e) not to be compelled to incriminate himself. 16 17 18 Sentencing On October 25, 2010, petitioner was sentenced to 34+ years imprisonment. Counts 1-10 and 13- 19 18 of the indictment were dismissed by motion of the government. The amended judgment was entered 20 on November 2, 2010. Petitioner did not file a direct appeal. 21 22 Section 2255 Motion On November 3, 2011, petitioner filed the instant section 2255 motion. Appearing pro se, 23 petitioner contends that the district court lacked subject matter jurisdiction because his crimes occurred 24 on land that was under the exclusive jurisdiction of the State of California. He also asserts three 25 ineffective assistance of counsel claims. He maintains that he received ineffective assistance of counsel 26 when counsel: (1) failed to investigate that the district court lacked jurisdiction over his case; (2) failed 27 to investigate whether 12 grand jurors concurred in the returning of the indictment; and (3) failed to 28 inform him that he had the right to testify in his own defense before advising him to enter into the plea 3 1 agreement. Petitioner requests that this Court vacate his conviction and sentence or in the alternative 2 grant his request for an evidentiary hearing. Petitioner also requests the Court to take judicial notice of 3 the fact that he intends to file a motion for leave to amend in order to raise two additional ineffective 4 assistance of counsel claims. This Court construes petitioner’s request for judicial notice as a motion for 5 leave to amend. 6 Having considered petitioner’s arguments and the relevant law, this Court issues this order. 7 DISCUSSION 8 I. Collateral Attack Waiver 9 In his plea agreement, petitioner agreed to waive the right to bring a collateral attack, including 10 a section 2255 motion. Petitioner also agreed to waive the right to bring an ineffective assistance of 11 counsel claim. A knowing and voluntary waiver of the right to collateral review in a negotiated plea 12 agreement is enforceable in federal court. See United States v. Navarro-Botello, 912 F.2d 318, 319 (9th 13 Cir. 1990); see also United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (upholding waiver of 14 right to collateral review). “The sole test of a waiver’s validity is whether it was made knowingly and 15 voluntarily.” United States v. Anglin, 215 F.3d 1064, 1068 (9th Cir. 2000). In determining whether a 16 waiver was knowingly and voluntarily made, courts consider “the express language of the waiver and the 17 facts and circumstances surrounding the signing and entry of the plea agreement, including compliance 18 with [Fed. R. Crim. P. 11].” United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). 19 The facts and circumstances surrounding the signing and entry of the plea agreement and the 20 express language of the waiver show that the waiver was knowingly and voluntarily made. At the plea 21 hearing, the Court reminded petitioner that as part of his agreement with the government he promised to 22 waive his right to appeal or file a collateral attack. (Docket #59, p. 33-34). Petitioner acknowledged 23 understanding the waiver. (Docket #59, p. 33-34). Petitioner also confirmed that he was not pleading 24 guilty due to threats or pressure or based on any promises outside of the plea agreement. (Docket #59, 25 p. 39). The Court also confirmed that petitioner understood what was going on throughout the 26 proceeding. 27 The express language of the waiver also shows that the waiver was knowingly and voluntarily 28 made. In the signed plea agreement, petitioner agreed to “give[] up any right . . . to bring a post4 1 conviction attack on his convictions or sentence. He specifically agree[d] not to file a motion under 28 2 U.S.C. § 2255 . . . attacking his convictions or sentence.” (Docket #60, p. 11). Petitioner also 3 acknowledged that he understood the terms of the agreement and voluntarily agreed with it. (Docket #60, 4 p. 13). He stated that no promises or inducements were made to him other than those memorialized in 5 the plea agreement. (Docket #60, p. 12, 13). Petitioner further acknowledged that no one threatened or 6 forced him to plead guilty. (Docket #60, p. 13). The record establishes that petitioner knowingly and 7 voluntarily waived his right to collaterally attack his conviction and sentence. 8 Although petitioner knowingly and voluntarily waived his right to collaterally attack his 9 conviction and sentence, the issues raised in his section 2255 motion are not barred by the waiver. 10 Petitioner contends that the Court lacked subject matter jurisdiction and asserts several ineffective 11 assistance of counsel claims. “[S]ubject-matter jurisdiction, because it involves a court’s power to hear 12 a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 13 1785 (2002). Likewise, petitioner did not waive his right to bring an ineffective assistance of counsel 14 claim because an appeal or collateral attack waiver cannot bar ineffective assistance of counsel claims 15 associated with the negotiation of a plea agreement. See Washington v. Lampert, 422 F.3d 864, 871 (9th 16 Cir. 2005) (“a plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. 17 § 2254 is unenforceable with respect to an [ineffective assistance of counsel] claim that challenges the 18 voluntariness of the waiver.”). See also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) 19 (doubting whether “a plea agreement could waive a claim of ineffective assistance of counsel based on 20 counsel’s erroneously unprofessional inducement of the defendant to plead guilty or accept a particular 21 plea bargain”). Accordingly, this Court addresses petitioner’s jurisdictional and ineffective assistance 22 of counsel claims. 23 II. Subject Matter Jurisdiction 24 Petitioner contends that the district court lacked subject matter jurisdiction because his crimes of 25 armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and carrying a firearm during a crime 26 of violence, in violation of 18 U.S.C. § 924(c)(1), occurred on land that was under the exclusive 27 jurisdiction of the State of California. He requests that this Court vacate his conviction and sentence and 28 delete any documentation of the charges from the Court’s records. In the alternative, he requests an 5 1 evidentiary hearing. This Court denies petitioner’s requests. 2 In United States v. Harris, 108 F.3d 1107 (9th Cir. 1997), the Ninth Circuit was faced with a 3 similar argument in an appeal from the denial of a section 2255 motion. The petitioner pled guilty to 4 armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and using and carrying a firearm during 5 and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Harris, 108 F.3d at 1108. 6 Petitioner argued that the State of Washington and not the federal government had jurisdiction to convict 7 him and that the statutes under which he was convicted are unconstitutional because they have no nexus 8 to interstate commerce. Id. at 1108. The Ninth Circuit held that the district court had jurisdiction over 9 the bank robbery offense because federal courts have jurisdiction over bank robbery offenses where the 10 bank was a federally insured institution and petitioner robbed a federally insured bank. Id. at 1108-09. 11 With regard to petitioner’s commerce clause argument, the Court acknowledged that 18 U.S.C. § 12 924(c)(1) does not exceed Congress’s authority under the Commerce Clause. Id. at 1109 (citing United 13 States v. Staples, 85 F.3d 461, 462-63 (9th Cir.), cert. denied, 519 U.S. 938, 117 S. Ct. 318, 136 L. Ed. 14 2d 233 (1996)). 15 Here, petitioner pled guilty to armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). 16 At the plea hearing and in the plea agreement, petitioner admitted that the deposits of the banks were 17 federally insured. (Docket #59, p.41-55; Docket #60, Ex. A p. 1-4). Accordingly, the Court had subject 18 matter jurisdiction over petitioner’s bank robbery offenses. See Harris, 108 F.3d at 1108 (“Federal courts 19 have jurisdiction over a bank robbery offense where the bank was a federally insured institution.”). 20 Petitioner also pled guilty to carrying a firearm during a crime of violence, in violation of 18 21 U.S.C. § 924(c)(1). District courts have original jurisdiction of all offenses against the laws of the United 22 States. See 18 U.S.C. § 3231. The Constitution delegates to Congress the power to regulate activities 23 that substantially affect interstate commerce. See Art. I, § 8, cl. 3, United States v. Lopez, 514 U.S. 549, 24 558-59, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (internal citations omitted). The Ninth Circuit has 25 held that 18 U.S.C. § 924(c) affects interstate commerce. United States v. Staples, 85 F.3d 461, 463 (9th 26 Cir. 1996) overruled on other grounds by Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911, 141 27 L.Ed.2d 111 (1998). Accordingly, the district court had subject matter jurisdiction over petitioner’s 28 firearm offenses under the Commerce Clause. Id. 6 1 Because the Court had subject matter jurisdiction over petitioner’s offenses, this Court DENIES 2 petitioner’s request to vacate his conviction and sentence and his request for an evidentiary hearing with 3 regard to this issue. 4 III. Ineffective Assistance of Counsel 5 Petitioner alleges three ineffective assistance of counsel claims. He contends that he received 6 ineffective assistance of counsel when counsel: (1) failed to investigate that the district court lacked 7 jurisdiction over his case; (2) failed to investigate whether 12 grand jurors concurred in the returning of 8 the indictment; and (3) failed to inform him that he had the right to testify in his own defense before 9 advising him to enter into the plea agreement. Petitioner asserts that if counsel had not committed these 10 errors, he would not have pled guilty and would have insisted on going to trial. Petitioner requests that 11 this Court vacate his conviction and sentence or in the alternative grant his request for an evidentiary 12 hearing. 13 A. Ineffective Assistance of Counsel Legal Standards 14 To demonstrate ineffective assistance of counsel, a petitioner must establish deficient performance 15 and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In order to 16 establish deficient performance, petitioner must show that “counsel made errors so serious that counsel 17 was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This 18 requires petitioner to “show that counsel’s representation fell below an objective standard of 19 reasonableness.” Id. at 687-88. There is a strong presumption that counsel’s performance fell within the 20 “wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 21 2586 (1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). 22 The second factor petitioner must establish is prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. 23 at 2067. Prejudice occurs when “there is a reasonable probability that, but for counsel’s unprofessional 24 errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is 25 a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. 26 at 2066. Prejudice analysis must not only focus on outcome determination but also on the question of 27 whether or not “the result of the proceeding was fundamentally unfair or unreliable.” United States v. 28 Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994) (quoting Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S. 7 1 Ct. 838, 842, 122 L. Ed. 2d 180 (1993)). In the guilty-plea context, the prejudice requirement “focuses 2 on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” 3 Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). In other words, petitioner 4 “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded 5 guilty and would have insisted on going to trial.” Id. “A court need not determine whether counsel’s 6 performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the 7 alleged deficiencies.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. With these principles in mind, this 8 Court discusses petitioner’s arguments. 9 10 1. Failure to Investigate Jurisdiction Petitioner contends that he received ineffective assistance of counsel when counsel failed to 11 investigate that the district court lacked subject matter and territorial jurisdiction over his case before 12 advising him to enter into the plea agreement. Petitioner asserts that this error rendered his guilty plea 13 unknowing and involuntary. Petitioner has failed to show that his “counsel’s representation fell below 14 an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. A 15 reasonable attorney would know that the Court had subject matter jurisdiction over petitioner’s offenses. 16 As discussed above, Petitioner robbed several banks, the deposits of which were federally insured, see 17 Harris, 108 F.3d at 1108 (“Federal courts have jurisdiction over a bank robbery offense where the bank 18 was a federally insured institution”), and his firearm’s offense had a substantial effect on interstate 19 commerce, see Staples, 85 F.3d at 463 (holding that 18 U.S.C. § 924(c) affects interstate commerce). 20 Accordingly, the Court had subject matter jurisdiction over petitioner’s offenses. Thus, there was nothing 21 for counsel to investigate. Petitioner has failed to show that his “counsel’s representation fell below an 22 objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. 23 24 2. Failure to Investigate Grand Jury Vote Petitioner argues that he received ineffective assistance of counsel when his counsel failed to 25 investigate whether or not 12 grand jurors concurred in the returning of the indictment before advising 26 petitioner to enter into the plea agreement. Petitioner alleges that had counsel examined the court’s 27 records, counsel would have learned that the court’s records fail to show that 12 grand jurors concurred 28 in the returning of the indictment. Petitioner maintains that had he known that no evidence existed of him 8 1 being indicted by 12 grand jurors he would not have pled guilty or entered into the plea agreement. 2 Petitioner has failed to show that his “counsel’s representation fell below an objective standard 3 of reasonableness,” Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064, because a reasonable attorney 4 would not have moved for disclosure of the grand jury vote. 5 6 7 A grand jury may indict only if at least 12 jurors concur. The grand jury- or its foreperson or deputy foreperson- must return the indictment to a magistrate judge in open court. If a complaint . . . is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge. 8 9 Fed. R. Crim. P. 6(f). On September 26, 2008, petitioner was arraigned before a magistrate judge. 10 (Docket #10). The minutes of the proceeding provide that defense counsel acknowledged receipt of the 11 indictment at the hearing. Accordingly, the indictment was returned to a magistrate judge in open court. 12 See United States v. Daychild, 357 F.3d 1082, 1098-99 (9th Cir. 2004) (holding that the district court did 13 not abuse its discretion when it took judicial notice of grand jury minutes to ascertain whether the 14 indictment was properly returned). In addition, there was no reason for defense counsel to think that 15 fewer than 12 jurors concurred in the filing of the indictment because the foreperson did not report a lack 16 of concurrence to the magistrate judge as required by Fed. R. Crim. P. 6(f). 17 Petitioner alleges that had counsel examined the court’s records, counsel would have learned that 18 the court’s records fail to show that 12 grand jurors concurred in the returning of his indictment. A 19 reasonable attorney would not have moved for disclosure of the juror vote. The grand jury foreperson 20 records the number of jurors concurring in every indictment and files the record with the clerk, the record 21 may not be made public unless the court so orders. Fed. R. Crim. P. 6(c), United States v. Marshall, 526 22 F.3d 1349, 1359 (9th Cir. 1975). Discovery of grand jury records “may not be ordered unless the 23 defendant demonstrates with particularity the existence of a compelling need that is sufficient to outweigh 24 the policy of grand jury secrecy.” United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987); see also 25 United States v. Navarro-Vargas, 408 F.3d 1184, 1200 (9th Cir. 2005) (en banc) (“The grand jury’s 26 discretion- its independence- lies in two important characteristics: the absolute secrecy surrounding its 27 deliberations and vote and the unreviewability of its decisions.”). There is nothing in the record to 28 indicate a compelling need for disclosure of the vote that is sufficient to outweigh the policy of grand jury 9 1 secrecy. See DeTar, 832 F.2d at 1113 (upholding the denial of a request for the disclosure of grand jury 2 records because the request was supported by “nothing but baseless speculation”), cf. United States v. 3 Fischbach and Moore, Inc., 776 F.2d 839, 845 (9th Cir. 1985) (recognizing that “[t]he need to impeach 4 testimony or refresh recollection at trial can establish a particularized need for disclosure of grand jury 5 transcripts.”). Accordingly, a reasonable attorney would not have moved for disclosure of the juror vote. 6 Thus, petitioner has failed to show that his “counsel’s representation fell below an objective standard of 7 reasonableness.” Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. 8 9 3. Failure to Advise Regarding Right to Testify Petitioner contends that he received ineffective assistance of counsel when counsel failed to 10 inform him that he had the right to testify in his own defense before advising him to enter into the plea 11 agreement. Petitioner maintains that had counsel advised him of his right to testify he would have 12 insisted on going to trial instead of pleading guilty. 13 “A court need not determine whether counsel’s performance was deficient before examining the 14 prejudice suffered by the [petitioner] as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697, 15 104 S. Ct. at 2069. In order to establish prejudice in the guilty-plea context, petitioner “must show that 16 there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would 17 have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. 18 Petitioner alleges that counsel failed to inform him that he had the right to testify in his own 19 defense before advising him to enter into the plea agreement. Even if counsel failed to advise petitioner 20 regarding his right to testify, petitioner is unable to show a reasonable probability that, but for counsel’s 21 errors, he would not have pleaded guilty and would have insisted on going to trial because petitioner 22 received sufficient advisements at the plea hearing and in his signed plea agreement. 23 24 25 26 27 28 At the plea hearing the district court advised petitioner as follows: You have confrontational rights which include the right to be present in open court at every proceeding in your case, the right to be present at the jury trial, to face the jury, to challenge the Government’s evidence, which will consist of the testimony of witnesses under oath and exhibits received into evidence, the further right to question every government witness under oath after the U.S. Attorney questions first. That’s called the right of cross-examination. You have no duty to present evidence or prove anything at the trial. However, if you had witnesses that you wish to call in your defense who are unwilling to attend the trial, at your request, the Court would issue subpoenas to order your witnesses 10 1 2 3 to attend the trial. (Docket #59, p. 58-59) (emphasis added). Likewise, in the signed plea agreement petitioner acknowledged understanding that by pleading 4 guilty he waived his right: 5 (a) to plead not guilty and to persist in that plea if already made; (b) to be tried by a jury; (c) to be assisted at trial by an attorney, who would be appointed if necessary; (d) to confront and cross-examine witnesses against him; and (e) not to be compelled to incriminate himself. 6 7 8 (Docket #60, p. 10-11). Assuming petitioner was never explicitly advised of his right to testify by his 9 counsel he was advised of his right to proceed to trial and to defend himself by the Court and in the plea 10 agreement. Despite these advisements, petitioner chose to enter into the plea agreement and to plead 11 guilty. Accordingly, petitioner has failed to establish that there is a reasonable probability that, but for 12 counsel’s alleged failure to advise him of his right to testify in his own defense, he would have proceeded 13 to trial. See Hill, 474 U.S. at 59, 106 S. Ct. at 370. Because petitioner has failed to establish ineffective 14 assistance of counsel, this Court DENIES petitioner’s request to vacate his conviction and sentence and 15 his request for an evidentiary hearing with regard to this issue. 16 IV. Motion for Leave to Amend Pursuant to Fed. R. Civ. P. 15(a) 17 At the end of petitioner’s section 2255 motion, he requests the Court to take judicial notice of the 18 fact that he intends to file a motion for leave to amend, pursuant to Fed. R. Civ. P. 15(d), in order to raise 19 two additional ineffective assistance of counsel claims. This Court construes petitioner’s request for 20 judicial notice as a motion for leave to amend, pursuant to Fed. R. Civ. P. 15(a).1 A habeas petition may 21 be amended “as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242; see also 22 Fed. R. Civ. P. 81(a)(4) (the federal rules of civil procedure “apply to proceedings for habeas corpus”). 23 24 25 26 27 28 1 Amendments to pleadings are governed by Fed. R. Civ. P. 15(a). Fed. R. Civ. P. 15(d) pertains to supplemental pleadings, it permits “a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d); see also William Inglis & Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1982) (“The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed.”). Both claims petitioner seeks to raise relate to events that occurred prior to the filing of petitioner’s section 2255 motion. Accordingly, Fed. R. Civ. P. 15(d) does not apply. Thus, this Court construes petitioner’s request under Fed. R. Civ. P. 15(a). 11 1 Fed. R. Civ. P. 15(a)(2) allows a party to amend its pleading by leave of the court, and such leave should 2 be freely given when justice so requires. This rule is interpreted liberally to favor amendments. Johnson 3 v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Accordingly, this Court GRANTS 4 petitioner’s motion for leave to amend and NOW addresses the additional claims on their merits pursuant 5 to the acceptance of the amendment. The Court needs no response to the amendment for its ruling. 6 V. Additional Ineffective Assistance Claims 7 Petitioner contends that he received ineffective assistance of counsel when counsel: (1) failed to 8 advise him of his right to self representation before advising him to enter into the plea agreement and (2) 9 advised him to enter into the plea agreement without first having his competency evaluated. Each claim 10 will be discussed in turn. 11 A. Failure to Advise Regarding Right to Self Representation 12 Petitioner argues that he received ineffective assistance of counsel when counsel failed to advise 13 him of his right to self representation before advising him to enter into the plea agreement. As discussed 14 above, in order to demonstrate ineffective assistance of counsel, a petitioner must establish deficient 15 performance and prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In order to establish 16 prejudice in the guilty plea context, petitioner “must show that there is a reasonable probability that, but 17 for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 18 474 U.S. at 59, 106 S. Ct. at 370. Even if counsel failed to advise petitioner regarding his right to self 19 representation before advising him to enter into the plea agreement and even if counsel’s failure to advise 20 petitioner constitutes deficient performance, petitioner is unable to show a “reasonable probability that 21 but for counsel’s errors, he would not have pleaded guilty.” Id. At the plea hearing and in the signed plea 22 agreement, petitioner was advised of his right to a jury trial and his right to counsel. (Docket #59, p. 57; 23 Docket #60, p. 10-11). Despite this advisement, petitioner chose to plead guilty. Because petitioner 24 chose to plead guilty knowing that he could proceed to trial with the assistance of counsel, it seems 25 unlikely that petitioner would have pled not guilty and proceeded to trial with the knowledge that he could 26 represent himself. Moreover, it seems unlikely that petitioner was unaware of his right to self 27 representation because prior to pleading guilty petitioner filed a pro se motion to suppress (Docket #51) 28 which the government responded to and the court ruled on (Docket # 57). Accordingly, petitioner has 12 1 failed to establish a “reasonable probability that but for counsel’s errors, he would not have pleaded guilty 2 and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370. 3 B. Failed to Have Competency Evaluated 4 Petitioner contends that he received ineffective assistance of counsel when counsel failed to have 5 his competency evaluated before advising him to enter into the plea agreement. “Trial counsel has a duty 6 to investigate a defendant’s mental state if there is evidence to suggest that the defendant is impaired.” 7 Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003); see e.g., Lambright v. Stewart, 241 F.3d 8 1201, 1206-08 (9th Cir. 2001) (ordering an evidentiary hearing with regard to petitioner’s contention that 9 counsel should have investigated his psychiatric condition given counsel’s knowledge that petitioner had 10 been previously hospitalized in a mental facility, suffered from hallucinations, and had attempted suicide); 11 Seidel v. Merkle, 146 F.3d 750, 756 (9th Cir. 1998) (holding that counsel had a duty to investigate 12 defendant’s mental state given the “abundant signs in the record that [defendant] suffered from mental 13 illness”). 14 A reasonable attorney would not have investigated petitioner’s mental state prior to advising him 15 to enter into the plea agreement because there was no evidence to suggest that petitioner was impaired. 16 There is nothing in the record that indicates that petitioner’s behavior was irrational or that petitioner and 17 counsel were having difficulty communicating. At the change of plea hearing, petitioner stated under 18 oath that he had never been treated for a mental illness. (Docket #59, p. 20). Also at the change of plea 19 hearing, both counsel and petitioner stated under oath that they did not have any difficulty communicating 20 or understanding one another. (Docket #59, p. 20-21). Thus, the record indicates that counsel had no 21 reason to think that petitioner was impaired at the time he pled guilty. 22 Following petitioner’s plea, members of petitioner’s family reported to counsel that there was a 23 history of mental illness in his family and that he had demonstrated symptoms of mental disturbance, 24 including hearing voices, during periods of his adult life. Upon receipt of this information, counsel 25 requested a continuance in order to have petitioner evaluated by a psychiatrist. (Docket #61). A 26 psychological evaluation was performed however, at sentencing defense counsel explained that there was 27 nothing from the evaluation that he wanted to provide to the court. Although counsel became aware of 28 a possible mental health issue after petitioner entered his guilty plea because there is no evidence to 13 1 suggest that petitioner was impaired at the time he pled guilty, counsel did not have a duty to investigate 2 petitioner’s mental state prior to advising petitioner to enter into the plea agreement. Accordingly, 3 petitioner has failed to show that “counsel’s representation fell below an objective standard of 4 reasonableness.” Strickland, 466 U.S. at 687-88. 5 For the reasons set forth above, this Court DENIES the additional ineffective assistance of counsel 6 claims asserted in petitioner’s motion to amend. 7 VI. Certificate of Appealability 8 28 U.S.C. § 2253(c)(1) precludes an appeal from a final order in a section 2255 proceeding unless 9 a circuit justice or judge issues a certificate of appealability (“COA”). A COA may issue “only if the 10 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); 11 see Slack v. McDaniel, 529 U.S. 473, 483, 120 S. Ct. 1595, 1603 (2000). “The petitioner must 12 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims 13 debatable or wrong.” Id. at 484; see also Miller-El v. Cockrell, 537 U.S. 322, 341-42, 123 S. Ct. 1029, 14 1042 (2003). To meet this standard, the petitioner “must demonstrate that the issues are debatable among 15 jurists of reason; that a court could resolve the issues in a different manner; or that the questions are 16 adequate to deserve encouragement to proceed further.” Lambright v. Stewart, 220 F.3d 1022, 1024-25 17 (9th Cir. 2000) (alteration in original) (internal quotation marks and brackets omitted) (quoting Barefoot 18 v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). In the absence of a COA, no appeal in a section 2255 19 proceeding may be heard. 28 U.S.C. § 2253(c). 20 This Court has reviewed the record of this case and finds that the issues are not debatable among 21 jurists of reason. See Lambright, 220 F.3d at 1024-25. Accordingly, a certificate of appealability is 22 improper. 23 CONCLUSION AND ORDER 24 For the reasons discussed above, this Court: 25 1. DENIES petitioner’s section 2255 motion to vacate, set aside, or correct sentence; 26 2. DENIES petitioner’s request for an evidentiary hearing; 27 3. GRANTED petitioner’s request for leave to amend, pursuant to Fed. R. Civ. P. 15(a), , 28 accepted the amendment now, and ruled on it herein; 14 1 4. DENIES the additional ineffective assistance of counsel claims asserted; 2 5. DENIES petitioner a COA; and 3 6. DIRECTS the clerk of the court to close Case No. CV-F-11-1844-LJO. 4 IT IS SO ORDERED. 5 Dated: December 9, 2011 B9ed48O'Neill /s/ Lawrence J. 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15