Contreras v. United States of America, No. 3:2019cv05136 - Document 8 (W.D. Wash. 2019)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus, by Judge Ronald B. Leighton. Re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (Copy mailed to Petitioner @ McRae Correctional Institute)(DK)
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Contreras v. United States of America Doc. 8 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 10 11 12 JESUS RIOS CONTRERAS, v. CASE NO. 3:19-cv-05136-RBL Petitioner, UNITED STATES OF AMERICA, CR17-5515RBL ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Respondent. 13 14 15 THIS MATTER is before the Court on Petitioner Jesus Rios Contreras’s motion to 16 vacate, set aside, or correct his sentence pursuant to 28 U.C.S. § 2255. Following his guilty plea 17 in 2018, Contreras received a 72-month sentence for possession of methamphetamine with intent 18 to distribute and a 12-month sentence for illegal reentry after deportation. The sentences were to 19 run consecutively, constituting a total of 84 months. Contreras argues that his counsel, Miriam 20 Schwartz, was ineffective for not asking the sentences to run concurrently, alleging that if she 21 had asked, there is a reasonable probability that the Court would have imposed a shorter 22 sentence. Aside from stating that Schwartz could have asked for a concurrently run sentence, 23 Contreras made no other factual allegations to support his claim. 24 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 1 Dockets.Justia.com The government argues that Contreras has not shown that his counsel’s performance was 1 2 professionally unreasonable or that her performance prejudiced him. Schwartz asked the Court to 3 impose a total sentence of five years for all of Contreras’s charges, the statutory minimum 4 sentence for Contreras’s drug-related charge. The government asserts that by doing so, Schwartz 5 effectively asked the Court to run the illegal entry sentence concurrently. The government also 6 argues that Contreras presents nothing to show that Schwartz’s failure to use the specific word 7 “concurrent” actually caused prejudice by changing the Court’s conclusion. For the following reasons, the Court DENIES Contreras’s Motion. 8 DISCUSSION 9 10 11 1. Standard of Review A petitioner seeking relief under 28 U.S.C. § 2255 must prove the existence of an error 12 rendering his conviction unlawful. See Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997); see 13 also Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938). The petitioner, who bears the burden of 14 proof, loses “when scales are evenly balanced on factual question of whether a constitutional 15 error occurred.” Simmons, 110 F.3d at 42. The petitioner also bears the burden of establishing 16 any factual predicates necessary to establish his claims. See Grady v. United States, 929 F.2d 17 468, 471 (9th Cir. 1991). 18 A prisoner in custody for a federal law violation may move to vacate, set aside or correct 19 the sentence under four circumstances: where (1) “the sentence was imposed in violation of the 20 Constitution or laws of the United States”; (2) “the court was without jurisdiction to impose such 21 sentence”; (3) “the sentence was in excess of the maximum authorized by law”; or (4) the 22 sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a). Claims of ineffective 23 24 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 2 1 assistance of counsel can be raised for the first time on a § 2255 motion. United States v. 2 Schaflander, 743 F.2d 714, 717 (9th Cir.1984). 3 2. Evidentiary Hearing under § 2255(b) The Court need not hold an evidentiary hearing on a § 2255 motion where the claims 4 5 “can be conclusively decided on the basis of documentary testimony and evidence in the record.” 6 United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (quoting Watts v. United States, 7 841 F.2d 275, 277 (9th Cir. 1988)). “Although § 2255 imposes a fairly lenient burden on the 8 petitioner, the petitioner is nonetheless ‘required to allege specific facts which, if true, would 9 entitle him to relief.’” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citation 10 omitted). Here, Contreras is not entitled to an evidentiary hearing because his claim is based 11 entirely on his assumption of what could have changed the Court’s sentencing decision, and the 12 record already contains sufficient evidence to assess such a claim. 13 3. 14 15 Ineffective Assistance of Counsel Contreras argues that his counsel was ineffective because she did not ask for his 72- month sentence and 12-month sentence to run concurrently. 16 To prevail on a claim of ineffective assistance of counsel, petitioner must first show that 17 his attorney’s performance was unreasonable under prevailing professional standards. Petitioner 18 must prove that his counsel made errors “so serious that [she] was not functioning as the 19 ‘counsel’ guaranteed for the defendant by the [Constitution].” Strickland v. Washington, 466 20 U.S. 668 (1984). Review of the effectiveness of counsel’s performance is highly deferential, and 21 there is strong presumption that counsel’s conduct falls within the wide range of reasonable 22 professional assistance which, under circumstances, might be considered sound trial strategy. 23 United States v. Molina, 934 F.2d 1440, 1447 (9th Cir.1991) (citing Strickland, 466 U.S. at 687). 24 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 3 Second, petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 687. This 1 2 requires him to show a reasonable probability1 that but for counsel’s unprofessional errors, the 3 results would have been different. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) 4 (quoting Strickland, 466 U.S. at 687). A reasonable probability is a probability sufficient to 5 undermine confidence in the outcome. Strickland, 466 U.S. at 669. Thus, even if counsel made a 6 professionally unreasonable error, it does not warrant setting aside the judgment if the error had 7 no effect on the judgment. Id. at 691. Cortreras has not shown that his counsel performed unreasonably under prevailing 8 9 professional standards. While Schwartz did not use the term “concurrent” during the sentencing 10 hearing, this omission was not a serious error. The statutory minimum sentence for Contreras’s 11 drug related charge is five years. Therefore, by asking the Court to impose a total sentence of 12 five years for all of Contreras’s charges, Schwartz effectively asked the Court to have the illegal 13 entry sentence run concurrently with the drug charge sentence. Contreras presents no other 14 allegation to establish that Schwartz’s conduct was a serious error outside of the wide range of 15 reasonable professional assistance. To the contrary, the record supports the government’s claim that Schwartz performed 16 17 effectively. While Contreras now believes that he might have been entitled to a sentence of 72 18 months total, Schwartz advocated for a sentence of 60 months total, the lowest possible term that 19 Contreras could have received. Schwartz also emphasized Contreras’s age, harsh upbringing, and 20 the fact that he has an infant child in Mexico to provide reasons for a more lenient sentence. 21 22 23 24 In Strickland, the Supreme Court stated that to prove prejudice, the defendant need not show that “counsel's deficient conduct more likely than not altered the outcome.” 466 U.S. at 693-94. Rather, the reasonable probability standard is more appropriate. Id. 1 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 4 1 Contreras does not provide any reason to conclude that Schwartz’s advocacy was objectively 2 unreasonable. 3 Furthermore, Contreras has not shown that Schwartz’s performance prejudiced him. In 4 Strictland, the defendant failed to show prejudice because the evidence that he claimed should 5 have been offered would “barely have altered [his] sentencing profile.” See 466 U.S. at 700. Like 6 Strictland, Contreras fails to show how a request for concurrent sentences could have changed 7 the outcome of his sentencing. The Court decided against giving Contreras a shorter sentence 8 based on concerns related to his recidivism, specific deterrence, community safety, and the grave 9 nature of the drug offense he committed. Contreras has presents nothing to suggest that there was 10 a reasonable probability the Court would set aside these concerns and impose a more lenient 11 sentence if Schwartz had simply asked for the sentences to run concurrently. 12 4. 13 Certificate of Appealability To appeal a decision denying a motion under 28 U.S.C. § 2255, a defendant is required to 14 obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). To do so, the defendant must 15 show that “jurists of reason would find it debatable whether the petition states a valid claim of 16 the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 Here, the invalidity of Contreras’s claim is not debatable. Contreras merely provides a 18 conclusory statement that the Court might have reduced his sentence if Schwartz had expressly 19 requested his sentences to run concurrently. There is simply no reason to believe that Schwartz’s 20 omission of the word “concurrent” had any impact on the Court when she was already asking for 21 a sentence functionally equivalent to what Contreras now argues for. Without more to establish a 22 valid claim, Contreras is not entitled to a certificate of appealability. 23 24 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 5 CONCLUSION 1 2 For the above reasons, Contreras’s motion to vacate, set aside, or correct his sentence 3 pursuant to 28 U.C.S. § 2255 is DENIED. Because Contreras has failed to state a valid claim of 4 the denial of a constitutional right, the Court declines to issue a certificate of appealability. See 5 28 U.S.C. §2253(c)(2). 6 IT IS SO ORDERED. 7 8 9 10 11 Dated this 13th day of June. A Ronald B. Leighton United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS - 6
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