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Sali v. United States

United States District Court, Ninth Circuit

January 24, 2014

ISMAIL SALI, Petitioner,
v.
THE UNITED STATES OF AMERICA, Respondent.

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

ROBERT S. LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on Petitioner Ismail Sali's motion to vacate, correct, or set aside his conviction and sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 1) and Petitioner's motion for complete transcripts and a continuance (Dkt. # 16). Petitioner challenges his conviction and the 84 month sentence imposed after he pled guilty to conspiracy, bank fraud, access device fraud, and aggravated identity theft in CR11-316-RSL. Dkt. # 1-1 at 1.[1]

II. BACKGROUND

In September 2011, Petitioner was arrested and charged with one count of conspiracy to commit access device fraud, three counts of bank fraud, two counts of production, use, and trafficking in counterfeit devices, two counts of possession of device-making equipment, and one count of aggravated identity theft. CR 12; CR 22 at 1-11. Two months later, the grand jury returned a superseding indictment, charging Petitioner with the following additional charges: two counts of bank fraud, one count of production, use, and trafficking in counterfeit access devices, one count of possession of device-making equipment, one count of aggravated identity theft, one count of possession of counterfeit and unauthorized access devices, and seven counts of money laundering. CR 46 at 1-16.

In March 2012, Petitioner appeared before the Court and pled guilty to one count of conspiracy to commit access device fraud, one count of bank fraud, one count of access device fraud, and one count of aggravated identity theft. CR 85; CR 87. The remaining charges were subsequently dismissed. CR 108 at 1. During the Rule 11 hearing, Petitioner informed the Court that he understood the crimes to which he was pleading guilty, the maximum sentences he could receive for the crimes, and the rights that he was giving up by pleading guilty. Dkt. # 11-2 at 9-13. He also indicated that he agreed that certain enhancements and reductions to his base offense level would apply for purposes of determining the appropriate sentencing range under the United States Sentencing Guidelines Manual ("Sentencing Guidelines"). Id . at 15. Finally, Petitioner agreed with the statement of facts set forth in the plea agreement, indicated that his decision to plead guilty was voluntary, and informed the Court that he was pleading guilty because he committed the crimes identified in the plea agreement. Id . at 18-21. Based on these representations, the Court found Petitioner's decision to enter a guilty plea was knowing, voluntary, and intelligent. Id . at 21-22.

On June 28, 2012, Petitioner was sentenced to 60 months of imprisonment on the counts of conspiracy, bank fraud, and access device fraud to run concurrently, and 24 months of imprisonment on the count of aggravated identity theft, to be served consecutively, for a total prison sentence of 84 months. CR 108 at 3. Petitioner timely filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255.

III. DISCUSSION

In his motion, Petitioner alleges claims of ineffective assistance of counsel based on (1) counsel's failure to provide an adequate translator during their initial meeting and at the sentencing hearing, (2) counsel's advice that Petitioner sign the plea agreement even though it contained factual errors, (3) counsel's failure to dispute the conspiracy charge and the related facts in the plea agreement and presentence report ("PSR"), (4) counsel's failure to dispute the allegations that some of the criminal conduct occurred outside the United States, and (5) counsel's failure to give him discovery in a viewable format. Dkt. # 1 at 2-6.

To succeed on a claim of ineffective assistance of counsel, Petitioner must show (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 unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 694 (1984). When a petitioner claims that his guilty plea was unintelligent or involuntary on the basis of ineffective assistance of counsel, Strickland's two-part test applies. Hill v. Lockhart , 474 U.S. 52, 56 (1985).

To meet the first requirement, objectively unreasonable performance, a convicted defendant must point to specific acts or omissions by counsel that he believes not to be the product of sound professional judgment. Id . at 690. To satisfy the second requirement, prejudice, a petitioner must show 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. In the context of a guilty plea, Petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59 (1985). The Court's focus is on whether counsel's deficient performance affected the outcome of the plea process. Id.

B. Ineffective Assistance of Counsel

1. Failure to Provide Adequate Translation Services

Petitioner argues that his trial counsel's performance was ineffective because he failed to provide adequate translation services during their first meeting and during the sentencing hearing. Dkt. # 1 at 2-3. He contends that the translator did not speak his language, which "resulted in Defendant not understanding the process or the evidence, and created an environment ...


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