United States District Court, E.D. Washington
ORDER DENYING §2255 MOTION
LONNY R. SUKO, Senior District Judge.
BEFORE THE COURT is Petitioner's "Motion to Vacate, Set Aside, Or Correct Sentence Pursuant to Title 28 U.S.C.A. §2255." ECF No. 373.
The court normally conducts an initial review of a §2255 motion. The initial standard of review for motions under §2255 is whether:
[I]t plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court....
Rule 4(b), Rules Governing Proceedings in the United States District Courts under Section 2255 of Title 28, United States Code. This initial review was not conducted because counsel was appointed upon the motion of Petitioner and the United States Attorney filed a response.
Clinton Lee Halbert was indicted on December 16, 2009 for Conspiracy to Manufacture a Controlled Substance in violation of 21 U.S.C. § 846 and Manufacture of Marijuana in violation of 21 U.S.C. § 841(a)(1). Mr. Halbert proceeded with trial on June 28, 2010 and the jury rendered a guilty verdict on July 1, 2010 for both counts. On February 8, 2011, Mr. Halbert was sentenced to 54 months probation, with home confinement for 18 months concurrent on each count; and 3 years Supervised Release on each count and concurrent; and a special assessment of $200. The fine was waived. On February 16, 2011, Judgment was entered. (ECF No. 259).
Mr. Halbert, through counsel Ms. Lindholdt, filed a direct appeal of his final judgment and sentence on February 23, 2011, pursuant to Fed. R. App. P. 4(b)(1). On April 10, 2012, the Ninth Circuit Court of Appeals affirmed the district court's decision. ECF No. 355. On March 15, 2013, Mr. Halbert filed a 28 U.S.C. § 2255 petition. ECF No. 373. After an initial denial of Mr. Halbert's request for appointment of counsel, the Court reconsidered its order based on the exceptional circumstances shown in Petitioner's motion for reconsideration. ECF No. 380. Counsel was appointed on June 19, 2013 to represent Petitioner for his § 2255 habeas petition.
Mr. Halbert raises four grounds in his petition: 1) ineffective assistance of counsel; 2) lack of probable cause and trespass; 3) violations of substantive and procedural due process (denied a fair trial); and 4) illegal search and seizure.
A. Ineffective Assistance of Counsel
Defendant must prove: (1) counsel's performance was deficient, and (2) movant was prejudiced by such deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). As to the first prong, there is a strong presumption counsel's performance was sufficiently effective. Id. at 689. Defendant must show his counsel's performance was "outside the wide range of professionally competent assistance." Id. at 690. As to the second prong, Defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different (i.e., a guilty plea would not have been entered). A "reasonable probability" is a "probability sufficient to undermine confidence in the proceedings. Id. at 694.
Petitioner contends in his original §2255 Motion, filed pro se (ECF No. 373), that the (4) grounds for his motion are: 1) ineffectual assistance of counsel (conflict of interest, communication between Pat Stily and Frank Cikutovich); 2) lack of probable cause and trespass; 3) substantive and procedural due process violation(s); and 4) illegal search and seizure.
Petitioner contends his counsel was ineffective because the "[c]ase was not investigated or supported with the facts on pre-trial and trial." ECF No. 373 at 4. Petitioner claims that the "[m]otions lacked substance, facts..." Id. Petitioner argues that he was provided with ...