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Contreras v. United States

United States District Court, W.D. Washington, Tacoma

June 13, 2019



          Ronald B. Leighton, United States District Judge.

         THIS 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 claim.

         The 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.

         For the following reasons, the Court DENIES Contreras's Motion.


         1. Standard of Review

         A 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).

         A 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).

         2. Evidentiary Hearing under § 2255(b)

         The 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.

         3. Ineffective Assistance of Counsel

         Contreras argues that his counsel was ineffective because she did not ask for his 72-month sentence and 12-month sentence to run concurrently.

         To 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).

         Second, petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 687. This requires him to show a reasonable probability[1] 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 ...

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