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United States v. Fuentes

United States District Court, E.D. Washington

May 3, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
OMAR ALARCON FUENTES, Defendant-Petitioner.

          ORDER DENYING POST-REMAND HABEAS CORPUS PETITION PURSUANT TO 28 U.S.C. § 2255

          THOMAS O. RICE Chief United States District Judge

         BEFORE THE COURT are Petitioner's Renew[ed] Motion Post-Remand for Habeas Corpus Pursuant to 28 U.S.C. § 2255 and to Appoint Counsel (ECF No. 262) and Motion To Either Set a Briefing Schedule or For Sua Sponte Ruling on Petitioner's Renew[ed] Motion Post-Remand for Habeas Corpus Pursuant to 28 U.S.C. § 2255 and to Appoint Counsel (ECF No. 265). The motions were submitted for consideration without oral argument. The Court-having reviewed the motions, the completed briefing, and the record and files therein-is fully informed.

         BACKGROUND

         A jury convicted Petitioner of knowingly distributing over 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). Petitioner was sentenced and he appealed his conviction. While the direct appeal was pending, Petitioner filed a pro se motion under 28 U.S.C. § 2255. ECF No. 236. The Ninth Circuit issued a memorandum disposition affirming Petitioner's conviction. See ECF No. 248. The Ninth Circuit declined to consider Petitioner's ineffective assistance of counsel argument on direct review, id. at 4, explaining that neither extraordinary exception to the general rule applied, leaving the issue for collateral review.

         This Court then issued an Order denying Petitioner's pending motion under 28 U.S.C. § 2255. ECF No. 251. Petitioner appealed and the Ninth Circuit ruled that it was improper for this Court to consider the § 2255 motion while the direct appeal was pending. ECF No. 258. The Ninth Circuit vacated this Court's decision and remanded with instructions to dismiss the § 2255 motion without prejudice. Id. This Court did so. ECF No. 261. Thereafter, Petitioner renewed his § 2255. ECF No. 262. After this Court ordered a briefing schedule, ECF No. 264, Petitioner filed a motion for a briefing schedule and to appoint counsel, ECF No. 265. Petitioner's motion for a briefing schedule is denied as moot.

         I. Evidentiary Hearing

         The issues raised do not require an evidentiary hearing. See Rule 8, Rules Governing Section 2255 Proceedings. The transcripts, records and materials filed in this proceeding adequately document the issues for resolution. These issues do not involve a material factual dispute that need be resolved. United States v. Andrade-Larrios, 39 F.3d 986, 991 (9th Cir. 1994) (“The district judge acted within his discretion in denying an evidentiary hearing on the § 2255 motion because the files and records conclusively showed that the movant was not entitled to relief.”).

         II. Appointment of Counsel

         The court may appoint counsel for an indigent habeas petitioner if the court determines that the interests of justice so require. 18 U.S.C. § 3006A(a)(2)(B). The appointment of counsel is discretionary unless the court conducts an evidentiary hearing on the petition. See Rule 8(c), Rules Governing Section 2255 Proceedings. Here, no evidentiary hearing is required, the issues raised are fully briefed and are so insubstantial as to not require the appointment of counsel.

         III. Ineffective Assistance of Counsel

         The Sixth Amendment to the Constitution provides that criminal defendants “shall enjoy the right to have the assistance of counsel for his defense.” U.S. Const. amend. VI. Effective assistance of counsel is analyzed pursuant to the doctrine set forth in Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland, Petitioner bears the burden of establishing two components to an ineffectiveness inquiry. First, the representation must fall “below an objective standard of reasonableness.” 466 U.S. at 687-88. Courts scrutinizing the reasonableness of an attorney's conduct must examine counsel's “overall performance, ” both before and at trial, and must be highly deferential to the attorney's judgments. United States v. Quintero-Barraza, 78 F.3d 1344, 1347-48 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 688-89). In fact, there exists a “strong presumption that counsel ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Id. (citation omitted).

         If the petitioner satisfies the first prong, he must then establish that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Quintero-Barraza, 78 F.3d at 1347 (quoting Strickland, 466 U.S. at 694).

         Petitioner identifies four instances where he contends counsel was ineffective in violation of his Sixth Amendment right. Each will be addressed in the order raised. ECF No. 262 at 2 (incorporating the issues raised in the attachment at ECF No. 262-1).

         A. Whether counsel was ineffective for not moving to dismiss the Indictment for allegedly false ...


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