United States District Court, W.D. Washington, Tacoma
ORDER DENYING PETITION FOR WRIT OF HABEAS
B. Leighton, United States District Judge.
MATTER is before the Court on Petitioner Jesus Rios
Contreras's motion to vacate, set aside, or correct his
sentence pursuant to 28 U.C.S. § 2255. Following his
guilty plea in 2018, Contreras received a 72-month sentence
for possession of methamphetamine with intent to distribute
and a 12-month sentence for illegal reentry after
deportation. The sentences were to run consecutively,
constituting a total of 84 months. Contreras argues that his
counsel, Miriam Schwartz, was ineffective for not asking the
sentences to run concurrently, alleging that if she had
asked, there is a reasonable probability that the Court would
have imposed a shorter sentence. Aside from stating that
Schwartz could have asked for a concurrently run sentence,
Contreras made no other factual allegations to support his
government argues that Contreras has not shown that his
counsel's performance was professionally unreasonable or
that her performance prejudiced him. Schwartz asked the Court
to impose a total sentence of five years for all of
Contreras's charges, the statutory minimum sentence for
Contreras's drug-related charge. The government asserts
that by doing so, Schwartz effectively asked the Court to run
the illegal entry sentence concurrently. The government also
argues that Contreras presents nothing to show that
Schwartz's failure to use the specific word
“concurrent” actually caused prejudice by
changing the Court's conclusion.
following reasons, the Court DENIES Contreras's Motion.
Standard of Review
petitioner seeking relief under 28 U.S.C. § 2255 must
prove the existence of an error rendering his conviction
unlawful. See Simmons v. Blodgett, 110 F.3d 39, 42
(9th Cir. 1997); see also Johnson v. Zerbst, 304
U.S. 458, 468-69 (1938). The petitioner, who bears the burden
of proof, loses “when scales are evenly balanced on
factual question of whether a constitutional error
occurred.” Simmons, 110 F.3d at 42. The
petitioner also bears the burden of establishing any factual
predicates necessary to establish his claims. See Grady
v. United States, 929 F.2d 468, 471 (9th Cir. 1991).
prisoner in custody for a federal law violation may move to
vacate, set aside or correct the sentence under four
circumstances: where (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.” 28 U.S.C. § 2255(a). Claims of
ineffective assistance of counsel can be raised for the first
time on a § 2255 motion. United States v.
Schaflander, 743 F.2d 714, 717 (9th Cir.1984).
Evidentiary Hearing under § 2255(b)
Court need not hold an evidentiary hearing on a § 2255
motion where the claims “can be conclusively decided on
the basis of documentary testimony and evidence in the
record.” United States v. Espinoza, 866 F.2d
1067, 1069 (9th Cir. 1988) (quoting Watts v. United
States, 841 F.2d 275, 277 (9th Cir. 1988)).
“Although § 2255 imposes a fairly lenient burden
on the petitioner, the petitioner is nonetheless
‘required to allege specific facts which, if true,
would entitle him to relief.'” United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citation
omitted). Here, Contreras is not entitled to an evidentiary
hearing because his claim is based entirely on his assumption
of what could have changed the Court's sentencing
decision, and the record already contains sufficient evidence
to assess such a claim.
Ineffective Assistance of Counsel
argues that his counsel was ineffective because she did not
ask for his 72-month sentence and 12-month sentence to run
prevail on a claim of ineffective assistance of counsel,
petitioner must first show that his attorney's
performance was unreasonable under prevailing professional
standards. Petitioner must prove that his counsel made errors
“so serious that [she] was not functioning as the
‘counsel' guaranteed for the defendant by the
[Constitution].” Strickland v. Washington, 466
U.S. 668 (1984). Review of the effectiveness of counsel's
performance is highly deferential, and there is strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance which, under
circumstances, might be considered sound trial strategy.
United States v. Molina, 934 F.2d 1440, 1447 (9th
Cir.1991) (citing Strickland, 466 U.S. at 687).
petitioner must affirmatively prove prejudice.
Strickland, 466 U.S. at 687. This requires him to
show a reasonable probability that but for counsel's
unprofessional errors, the results would have been different.
United States v. Blaylock, 20 F.3d 1458, 1465 (9th
Cir.1994) (quoting Strickland, 466 U.S. at 687). A
reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466
U.S. at 669. Thus, even if counsel made a ...