United States District Court, E.D. Washington
ORDER DENYING POST-REMAND HABEAS CORPUS PETITION
PURSUANT TO 28 U.S.C. § 2255
O. RICE Chief United States District Judge
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.
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.
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.
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.”).
Appointment of Counsel
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.
Ineffective Assistance of Counsel
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
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
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.
Whether counsel was ineffective for not moving to dismiss the
Indictment for allegedly false ...