ORDER DENYING PETITION
RONALD B. LEIGHTON, District Judge.
On November 20, 2008, a jury convicted Petitioner Ronald Craig Potter of Possession of Methamphetamine with Intent to Distribute and Possession of a Firearm in Furtherance of Drug Trafficking. The Court sentenced Potter to imprisonment for 78 months for the drug charge and 60 months for the firearm charge and also ordered him to pay a $49, 000 fine. Potter now claims that he received ineffective assistance of counsel and seeks relief from his sentence under 28 U.S.C. § 2255. Potter's petition is DENIED.
On October 25, 2007, Potter was indicted and charged with Possession of a Firearm by a Prohibited Person, Possession of Methamphetamine with Intent to Distribute, and Possession of a Firearm in Furtherance of Drug Trafficking. The Possession of a Firearm by a Prohibited Person charge was later dismissed. Under the sentencing guidelines, both of the remaining charges carried five-year mandatory minimum sentences.
Prior to trial, Potter's counsel sought to suppress the evidence seized during two searches of Potter's residence in 2007. Counsel also sought to have the remaining gun charge dismissed on Second Amendment grounds. Both of Counsel's motions were denied. Also prior to trial, the government extended a plea offer to Potter. If Potter had accepted the plea offer, the government would have dismissed the remaining firearm charge in exchange for his pleading guilty to possession of methamphetamine with the intent to distribute. After discussing the offer with his counsel on a number of occasions, Potter chose to reject the offer.
The jury convicted Potter on both charges. The jury specifically found that he had possessed 50 grams or more of a mixture or substance containing methamphetamine with the intent to distribute. The Court sentenced Potter to a total of 138 months of imprisonment and ordered him to pay a $49, 000 fine. The Court has since fully credited Potter's fine because the money found in his residence was forfeited to the state.
Potter appealed his convictions, but not his sentence. On appeal, he argued that there was insufficient evidence to sustain his convictions and that the gun charge should have been dismissed on Second Amendment grounds. The Ninth Circuit affirmed Potter's convictions in a published opinion and an unpublished memorandum disposition. See U.S. v. Potter, 630 F.3d 1260 (9th Cir. 2011).
Potter filed this 28 U.S.C. § 2255 petition on December 22, 2011. He initially argued that his counsel was ineffective by failing to object to, and appeal, (1) the jury instruction for the gun charge; (2) the drug quantity calculation in the presentence report; (3) the Court's determination of his ability to pay a fine; and (4) the government's withholding of exculpatory information. On April 5, 2012, Potter filed a "supplemental to his § 2255 motion" to add counsel's failure to advise him that he faced consecutive mandatory minimum sentences of 60 months and stood to lose a three-level reduction to his offense level for not accepting responsibility if he rejected the plea offer and was convicted at trial to the list of reasons his counsel was ineffective. Potter has since conceded that the Court properly instructed jury regarding the gun charge.
A prisoner sentenced by a federal court may obtain relief from the imposition or length of his sentence under 28 U.S.C. § 2255 when (1) the sentence was imposed in violation of the Constitution or laws of the United states; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. The petitioner must specifically plead facts that would entitle him to relief if true. U.S. v. Rodrigues, 347 F.3d 8818, 824 (9th Cir. 2003).
A petitioner may obtain relief under § 2255 if he received ineffective assistance of counsel. To establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. 466 U.S. at 688 , 691-92, 104 S.Ct. at 2064, 2066-67. Judicial scrutiny of counsel's performance must be highly deferential to eliminate the distorting effects of hindsight. Id. 466 U.S. at 689 , 104 S.Ct. at 2065. There is thus a strong presumption that counsel's performance fell within the wide range of reasonably effective assistance. Id.
1. Counsel's Failure to Argue Half of Methamphetamine was for Personal Use
Potter argues first that his counsel was ineffective by failing to challenge the drug quantity determination at sentencing by arguing that half of the methamphetamine found in his possession was for his own personal use. Potter's self-serving claim that the drugs were for his own use directly contradicts his position all along that the drugs were not his. During the investigation and throughout his trial, Potter consistently claimed that the drugs were not his and that he had not used drugs in a long time. During closing arguments, Potter's counsel reiterated to the jury that Potter denied ownership or possession of the jacket that contained the vast majority of the drugs that were found in his residence.
It would have been inconsistent with the argument presented at trial and without the support of any evidence for Potter's counsel to then argue at sentencing that the drugs were for Potter's personal use. Failing to raise a meritless argument is not ineffective assistance of counsel. Baumann v. U.S., 692 F.2d 565, 572 (9th Cir. 1982). Counsel's decision to present the theory to the Court that ...