Aragon v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 AUGUSTINE ARAGON, Case No.: 3:19-cv-00438-BEN 3:17-cr-01068-BEN-1 12 Petitioner, 13 v. ORDER DENYING MOTION TO VACATE, SET ASIDE, OR 14 UNITED STATES OF AMERICA, CORRECT SENTENCE BUT 15 Respondent. STRIKING CONDITIONS OF SUPERVISED RELEASE 4, 5, AND [17] [ECF Nos. 89, 92, 95] [18] 19 Petitioner Augustine Aragon moves under 28 U.S.C. § 2255 (“Section 2255”) to 20 Vacate, Set Aside, or Correct his Sentence. ECF No. 89.1 For the reasons discussed 21 below, the motion is DENIED.2 [23] 1 In reviewing Petitioner’s motion, the Court is mindful that “[a] document filed pro 24 se is to be liberally construed . . . and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” [25] Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). All ECF. No. references 26 are to the criminal case, 3:17-cr-1068-BEN-1. 2 Petitioner’s Motion to Compel Discovery, ECF No. 92, is DENIED. The [27] Government’s Motion for Extension of Time to File Response, ECF No. 95, is DENIED 28 as moot. 1 I. BACKGROUND 2 On April 28, 2017, federal agents, operating on an indictment and arrest warrant, 3 arrested Petitioner for participation in a conspiracy to distribute methamphetamine, in 4 violation of 21 U.S.C. §§ 846 and 841(a)(1). Arrest Warrant, ECF No. 3. 5 The Government began investigating Petitioner and two co-conspirators in 2016. 6 Pre-Sentence Report (“PSR”), ECF No. 51, 4. Petitioner had close ties to Los Diablos, a 7 street gang in Escondido, California, that transported and distributed narcotics and 8 weapons within California, Washington, and Georgia. Id. 9 On October 6, 2016, Petitioner sold four grams of methamphetamine to an 10 undercover officer of the San Diego County Sheriff’s Office. PSR, ECF No. 51, 5. On 11 November 9 and 16, 2016, Petitioner distributed 55 and 27 grams, respectively, of 12 methamphetamine (actual) to an undercover law enforcement officer. Id. After these 13 sales, law enforcement agents intercepted text messages and phone calls between 14 Petitioner and a larger drug dealer. Id. These calls and texts indicated Petitioner was 15 trying to acquire significantly larger quantities of methamphetamine. Id. At the same 16 time, Petitioner’s girlfriend, Marcia Cervantes, who was living with Petitioner, 17 distributed 29.9 grams of methamphetamine (actual) to an undercover agent. Id. 18 On December 11, 2016, Petitioner purchased approximately two pounds of 19 methamphetamine from co-conspirators. PSR, ECF No. 51, 5. Ten days later, Petitioner 20 attempted to purchase a further 654 grams of methamphetamine (actual) from co21 conspirators, but the drugs were seized before they were delivered to Petitioner. Id. The 22 investigation into Petitioner continued for three more months. Id. During that time, 23 Petitioner possessed and sold firearms in connection with his conspiracy to distribute 24 methamphetamine, including semi-automatic AR-15 style weapons without serial 25 numbers. Plea Agreement, ECF No. 25, 5. 26 On April 26, 2017, Petitioner was indicted in the Southern District of California 27 and charged with participating in a conspiracy to distribute 50 grams or more of 28 methamphetamine (actual), in violation of 21 U.S.C. § 846 and 841(a)(1). Indictment, 1 ECF No. 1. He was arrested two days later. See Arrest Notice, ECF No. 3. 2 On September 19, 2017, Petitioner consented to entering a Rule 11 plea, and a 3 change of plea hearing was held before Magistrate Judge Ruben Brooks. ECF. No. 24. 4 After Petitioner was placed under oath, the Court found, inter alia, Petitioner knowingly 5 and voluntarily entered into a plea agreement, Petitioner was not subject to any threats or 6 coercion, the promises made in exchange for his plea were limited only to those 7 contained in his plea agreement, and that there was a factual and legal basis for the plea. 8 ECF. No. 26 at 3-5. Accordingly, Magistrate Judge Brooks issued Findings and 9 Recommendations advising that the Court accept Petitioner’s guilty plea to Count 1 of 10 the indictment. Id. at 4 . That same day, Petitioner signed a written plea agreement (the 11 “Plea Agreement”), pursuant to which he agreed to plead guilty to conspiracy to 12 distribute over 50 grams of methamphetamine as defined by 21 U.S.C. §§ 846 and 13 841(a)(1) (the “Plea Agreement”). See ECF No. 25. 14 In the Plea Agreement, Petitioner initialed pages indicating he understood, among 15 other things, that: (1) he entered into the Plea Agreement freely and voluntarily; (2) he 16 “had a full opportunity to discuss all the facts and circumstances of the case with defense 17 counsel and has a clear understanding of the charges and the consequences of this plea”; 18 (3) the facts in the “factual basis” portion of the Plea Agreement are true; (4) no one 19 threatened Petitioner or his family to induce his guilty plea; and (5) he waived, “to the 20 full extent of the law, any right to appeal or to collaterally attack the conviction and any 21 lawful restitution order, except a post-conviction collateral attack based on a claim of 22 ineffective assistance of counsel.” See ECF No. 25, 7, 11-12. 23 On October 19, 2017, after no objections were received, the Court adopted 24 Magistrate Judge Brooks’ Findings and Recommendations and accepted Petitioner’s 25 guilty plea. ECF. No. 33. 26 The Parties submitted identical sentencing summary chart calculations. See ECF 27 Nos. 52 and 55. The Parties’ Sentencing Guideline Calculations were as follows: 28 Base Offense Level [U.S.S.G. § 2D1.1(c)(3)]: 34 1 Possession of a Firearm [U.S.S.G. § 2D1.1(b)(1)]: +2 2 Accordingly, the Adjusted Offense Level was 36.3 See ECF Nos. 52, 55. Both the 3 Government and Petitioner’s counsel, David Baker, argued for a three-level reduction for 4 acceptance of responsibility. See ECF Nos. 52, 55. The PSR contained the same 5 recommendations listed above but also recommended a two-level increase for Petitioner’s 6 supervisory role in the offense. PSR, ECF No. 51, 21. The PSR’s recommendation came 7 from language in the Plea Agreement stating “[o]n October 13, 2016, defendant 8 Augustine Aragon had his girlfriend, Maria Cervantes, distribute 29.9 grams of pure 9 methamphetamine to an undercover law enforcement officer.” ECF No. 25, 4. As 10 discussed in the Analysis section below, the Court addressed this discrepancy during the 11 sentencing hearing. 12 At sentencing, the Court inquired about the mandatory minimum in this case, but 13 the Government informed the Court that it “was aware of [Petitioner’s] efforts to, toward 14 the end of the investigation . . . try and change his conduct to a certain extent, so we took 15 that into consideration in determining whether or not to file notice of the prior conviction 16 under 851.” Tr., ECF No. 96, 17 (citing 21 U.S.C. § 851 (a) (prohibiting defendants from 17 being subjected to increased punishment by reason of previous convictions “unless before 18 trial, or before entry of a plea of guilty, the United States attorney files an information 19 with the Court”)). 20 While the Court considered the Government’s argument favoring a sentence at the [22] 3 Although Petitioner argues that he was unable to present evidence of his [23] cooperation with the Government at sentencing, the Court considered the record in this 24 case at the time of sentencing, which included the PSR. The PSR stated that “[t]he defendant has assisted authorities in the investigation or prosecution of the defendant’s [25] own misconduct by timely notifying authorities of the intention to enter a plea of guilty.” 26 ECF No. 51, 8. On that basis, the PSR recommended a further reduction by one level. Id. As such, separate and aside from whether any parties presented evidence on this issue [27] at sentencing, the Court had been made aware of Petitioner’s cooperation with the 28 Government in investigating his own crimes. See id. 1 lower end of the guideline range and was aware of its authority to depart from the 2 guidelines, it chose to award a sentence at the high end of the guideline range because of 3 Petitioner’s extensive criminal history. Tr., ECF No. 96, 22. The Court specifically 4 noted its concern Petitioner was dealing in both drugs and firearms, and thus found a 5 significant period of incarceration was warranted. Id. As such, the Court sentenced 6 Petitioner to 210 months in custody and a term of three years supervised released. 7 Judgment, ECF No. 61. 8 During the sentencing hearing, the Court directly asked, “Mr. Aragon, do you 9 acknowledge that you waived your right to appeal and collateral attack?” to which 10 Petitioner responded, “Yes, Your Honor.” ECF No. 96 at 25:15-20. Petitioner did not 11 appeal his sentence. On March 5, 2019, Petitioner filed this motion less than one year 12 after judgment in his case became final, alleging Petitioner’s counsel, David Baker, 13 provided ineffective assistance of counsel in five ways. Mot., ECF No. 89. Petitioner 14 also alleges (1) three of his conditions of supervised release are unconstitutionally vague, 15 (2) he was under duress at the time of sentencing, and (3) his sentence was based on 16 inaccurate information. Id. 17 II. LEGAL STANDARD 18 Under Section 2255, a petitioner is entitled to relief if the sentence (1) was 19 imposed in violation of the Constitution or the laws of the United States, (2) was given by 20 a court without jurisdiction to do so, (3) was in excess of the maximum sentence 21 authorized by law, or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255 ; 22 United States v. Speelman, 431 F.3d 1226 , 1230 n.2 (9th Cir. 2005). Here, Petitioner 23 alleges his sentence was imposed in violation of his Sixth Amendment right to effective 24 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688 (1984); United States 25 v. Alferahin, 433 F.3d 1148, 1160-61 (9th Cir. 2006). He also claims certain portions of 26 his sentence violate the Constitution. See United States v. Evans, 883 F.3d 1154 , 116227 1164 (9th Cir. 2018). [28] 1 III. ANALYSIS 2 Petitioner moves to vacate or correct his sentence on eight different grounds. Mot. 3 at 4-14.4 The first five grounds Petitioner allege his counsel’s representation was 4 ineffective because his attorney (1) coerced Petitioner into signing the Plea Agreement, 5 (2) failed to present mitigating evidence at the sentencing hearing of (a) family support 6 letters or (b) post-arrest rehabilitative efforts, (3) failed to inform Petitioner he had the 7 right to correct inaccurate information in the PSR, and (4) failed to inform the Court of 8 Petitioner’s desire to cooperate with the Government. Id. Petitioner further argues that 9 his sentence should also be corrected or vacated because (6) certain conditions of his 10 supervised release are unconstitutionally vague, (7) he suffered from duress and fear 11 during his sentencing hearing, and (8) his sentence was based on inaccurate information 12 contained in the PSR. Id. at 7-10. As addressed at the end, the Court agrees that Ground 13 Six merits relief. However, Petitioner’s remaining grounds for relief are denied for two 14 reasons: First, Grounds Seven and Eight are barred due to procedural default, both due to 15 Petitioner’s waiver of his right to collaterally attack his sentence as well as due to his 16 failure to show actual prejudice. Second, Grounds One through Five fail to show 17 objectively unreasonable representation or actual prejudice sufficient to support his 18 claims of ineffective assistance of counsel. 19 A. Grounds Seven and Eight: Barred Collateral Attack Claims 20 Apart from Petitioner’s ineffective assistance of counsel grounds for vacating or 21 correcting his sentence, Petitioner argues that (1) he suffered from duress and fear at the 22 time of his sentencing that prevented him from presenting all relevant mitigating 23 evidence to the Court, and (2) his sentence was based on inaccurate information [25] 26 4 All references to page numbers in Petitioner’s Motion are to the page number shown in the ECF No. generated header at the top of each page rather than any page [27] number shown on the document due to the Motion containing two separate documents, 28 which have repetitive page numbers. 1 contained in the PSR. Mot., ECF No. 89, 10-14. Neither ground alleges these issues 2 were due to ineffective assistance of counsel. 3 In exchange for certain concessions from the Government including dismissal of 4 two other cases pending against him, Petitioner agreed to forgo a trial and instead plead 5 guilty as evidenced by his signed plea agreement with initialed pages making clear that 6 he understood that he was waiving “to the full extent of the law, any right to appeal or to 7 collaterally attack the conviction and any lawful restitution order, except a post8 conviction collateral attack based on a claim of ineffective assistance of counsel.” See 9 Findings and Recommendations, ECF No. 26, 7, 11-12. During his Change of Plea 10 Hearing, Magistrate Judge Brooks also expressly found that Petitioner understood he was 11 waiving his right to appeal or collaterally attack his conviction and sentence. Id. at 3. 12 Again, after sentence was imposed, this Court asked Petitioner directly whether he had 13 waived his right to collateral attack. Petitioner did not object or ask for an explanation of 14 his sentence. He agreed that he waived his right. As a result, Petitioner’s waiver of his 15 right to collaterally attack his sentence, as he is now doing, raises two issues: (1) waiver 16 and (2) procedural default. 17 1. Waiver 18 “A defendant’s waiver of his rights to appeal and to bring a collateral attack is 19 generally enforced if ‘(1) the language of the waiver encompasses his right to appeal on 20 the grounds raised, and (2) the waiver is knowingly and voluntarily made.’” Davies v. 21 Benov, 856 F.3d 1243, 1246-47 (9th Cir. 2017). The right to collaterally attack a 22 sentence is a statutory right that may be waived. United States v. Abraca, 985 F.2d 1012 , 23 1014 (9th Cir. 1993). “A knowing and voluntary waiver of a statutory right is 24 enforceable.” Id. 25 The Plea Agreement provides that Petitioner “waives, to the full extent of the law, 26 any right to appeal or to collaterally attack the conviction and any lawful restitution 27 order, except a post-conviction collateral attack based on a claim of ineffective assistance 28 of counsel.” ECF No. 25, 12. Thus, to the extent Petitioner attempts to collaterally 1 attack his conviction or sentence, he waived his right to do so under the Plea Agreement. 2 See United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Further, to the 3 extent Petitioner may try to argue such a waiver was not voluntary, the Court finds such 4 arguments unpersuasive. During the sentencing hearing, the Court directly asked 5 Petitioner, “Mr. Aragon, do you acknowledge that you waived your right to appeal and 6 collateral attack?” Tr., ECF No. 96, 27. Petitioner responded, “Yes, Your Honor.” Id. 7 This statement confirmed both Petitioner’s attestation on the Plea Agreement and 8 Magistrate Judge Brooks’ findings at the change of plea hearing. See ECF Nos. 24 and 9 25. Thus, Petitioner validly waived his right to collaterally attack his sentence, and the 10 record discloses no issues as to the voluntariness of Petitioner’s waiver. Therefore, the 11 Court enforces the collateral attack waiver with respect to Grounds Seven and Eight. 12 2. Procedural Default 13 Grounds Seven and Eight are also barred by procedural default. “The general rule 14 in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is 15 barred from raising the claim on collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 16 331 , 350–51 (2006). “Where a defendant has procedurally defaulted a claim by failing to 17 raise it on direct review, the claim may be raised in habeas only if the defendant can first 18 demonstrate either [1] ‘cause’ and actual ‘prejudice,’ or that [2] he is ‘actually 19 innocent.’” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations 20 omitted); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (holding that “[a] 21 Section 2255 movant procedurally defaults his claims by not raising them on direct 22 appeal and not showing cause and prejudice or actual innocence in response to the 23 default”). Here, Petitioner’s Motion makes no claims of actual innocence, which would 24 contradict the record in this case, including his guilty plea. See ECF No. 89. As such, 25 Petitioner must make a showing of cause and actual prejudice to overcome his procedural 26 default. 27 For the reasons outlined below, the Court finds that Petitioner has made no such 28 showing for Grounds Seven and Eight. 1 a. Petitioner has not shown duress 2 Petitioner argues he was denied due process of law because he was prevented from 3 “presenting virtually any mitigation information at all to the Court at sentencing due to 4 duress and fear of imminent bodily harm and fear of reprisal.” Mot., ECF No. 89, 30. 5 The Government responds that it rejected Petitioner’s offer to cooperate, and therefore 6 any mitigating evidence Petitioner could have offered during sentencing but did not 7 because of his safety concerns did not prejudice his sentence. Opp’n, ECF No. 8. 8 Moreover, Petitioner gave a long and detailed description of his previous criminal 9 activity and the events leading up to his arrest during the sentencing hearing. See Tr., 10 ECF No. 96, 5-15. 11 It is a bedrock principle of this country that criminal proceedings are held open to 12 the public both to encourage witnesses to come forward, discourage perjury, and allow 13 the public to see a defendant is dealt with fairly. See, e.g., In re Oliver, 333 U.S. 257 , 14 278 (1948) (“It is ‘the law of the land’ that no man’s life, liberty or property be forfeited 15 as a punishment until there has been a charge fairly made and fairly tried in a public 16 tribunal.”); see also U.S. CONST. AMEND. VI (“In all criminal prosecutions, the accused 17 shall enjoy the right to a speedy and public trial.”); Presley v. Georgia, 558 U.S. 209 , 215 18 (2010) (extending the right to public observance at criminal proceedings to voir dire, 19 noting that “[t]rial courts are obligated to take every reasonable measure to accommodate 20 public attendance at criminal trials”). 21 Reviewing the record, the Court finds no indication that the Government was 22 interested in entering into a cooperation agreement or proffer session with Petitioner. 23 Further, Petitioner’s extensive statement during the sentencing hearing belies his 24 allegation that he was not free to present mitigating evidence. Finally, the record 25 indicates that even if Petitioner did not present information on his “cooperation efforts,” 26 his sentence was still reduced by two offense levels by the Court in recognition of the fact 27 that he accepted responsibility. See Tr., ECF No. 96, 19. Because Petitioner makes no 28 showing that the Government was interested in cooperating with him, he does not 1 demonstrate any prejudice that would excuse his failure to raise this claim on direct 2 appeal. Accordingly, Ground Seven of Petitioner’s claim is denied as procedurally 3 defaulted. 4 b. The information in the PSR was not prejudicial 5 In Ground Eight of his Motion, Petitioner argues his sentence resulted in a denial 6 of due process because the PSR contained untrue information where it stated he directed 7 his girlfriend to distribute methamphetamine, which Petitioner denies. Mot., ECF No. 89, 8 32. 9 A sentence that rests on “improper or inaccurate information” violates due process. 10 See Dorszynski v. United States, 418 U.S. 424 , 431 n. 7 (1974). However, the Court’s 11 sentence did not do so here. During the sentencing hearing, the Government argued, 12 consistent with the PSR and a statement in the Plea Agreement, that Defendant “allowed 13 his pregnant girlfriend, Ms. Cervantes, to be involved in the criminal activity jointly with 14 him.” Tr., ECF No. 96, 18 (emphasis added). The Court inquired about whether 15 Petitioner “directed” or “supervised” Cervantes and why there was a discrepancy in 16 “role” between the parties’ adjusted offense level and the PSR. The Government 17 clarified that it did not believe Petitioner “directed” or “supervised” Cervantes, but that 18 they were “jointly involved in the criminal activity.” Id. at 19. The Court noted it 19 understood the Government’s position, accepted it, and determined Cervantes to be an 20 independent actor. See id. (calculating the applicable guideline range without the PSR’s 21 recommended increase for role). 22 Accordingly, Petitioner fails to show any actual prejudice sufficient to overcome 23 his procedural default because the Court adopted his proposed sentencing guidelines and 24 did not include the allegedly incorrect information in the PSR when the Court made its 25 guideline range calculation. 26 Petitioner’s ineffective assistance of counsel claims (Grounds One through Five of 27 his motion) are not procedurally defaulted and are addressed below. 28 B. Grounds One through Five: Ineffective Assistance of Counsel Claims 1 A defendant who claims his attorney provided ineffective assistance must 2 demonstrate both that (1) the attorney’s performance “fell below an objective standard of 3 reasonableness,” and (2) there exists “a reasonable probability that, but for counsel’s 4 unprofessional errors, the result of the proceeding would have been different.” 5 Strickland, 466 U.S. at 687-88 . “[T]he two-part Strickland v. Washington test applies to 6 challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, [7] 474 U.S. 52, 58-59 (1985). 8 With respect to the first factor, “[w]hen a convicted defendant complains of the 9 ineffectiveness of counsel’s assistance, the defendant must show that counsel’s 10 representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. 11 at 687-88. This involves proving “that counsel’s performance was deficient,” by 12 “showing that counsel made errors so serious that counsel was not functioning as the 13 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 14 687; see also Iaea v. Sunnn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland). 15 As to the second factor, “in order to satisfy the ‘prejudice’ requirement, the 16 defendant must show that there is a reasonable probability that, but for counsel’s errors, 17 he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 18 U.S. at 58-59. “The purpose of the Sixth Amendment guarantee of counsel is to ensure 19 that a defendant has the assistance necessary to justify reliance on the outcome of the 20 proceeding.” Strickland, 466 U.S. at 691-92 . “A convicted defendant making a claim of 21 ineffective assistance must identify the acts or omissions of counsel that are alleged not to 22 have been the result of reasonable professional judgment.” Id. at 690 . Then, the court 23 evaluates “whether, in light of all the circumstances, the identified acts or omissions were 24 outside the wide range of professionally competent assistance.” Id. 25 Here, each of Petitioner’s claims of ineffective assistance of counsel fail to show 26 either (1) behavior by Mr. Baker that fell below the objective standard of reasonableness 27 or (2) prejudice to Petitioner. 28 1. Petitioner has not shown he was coerced into the Plea Agreement 1 In Ground One, Petitioner argues that his attorney, David Baker, was ineffective 2 because Baker threatened that if Petitioner did not plead guilty, his girlfriend, Marcia 3 Cervantes, would not be eligible for “safety valve” sentencing criteria set forth in 18 4 U.S.C. § 3553 (f)(1)-(5) and “will be sentenced to [a] mandatory minimum of 5 years.” 5 Mot., ECF No. 89, 2-3. Petitioner alleges that Baker told him if he did not sign the Plea 6 Agreement, the Government would not push to lower the offense with which Cervantes 7 was charged, meaning she would not be sentenced to probation, would serve time in 8 prison, and no one would be available to care for her children. Id. at 5 . He also states 9 that he “forcefully signed the plea agreement that he did NOT desire [to sign] with untrue 10 facts due to Defense Counsel David Baker’s threats and promises of getting the errors 11 fixed and informing the government of Aragon’s desire to cooperate.” Id. at 24 . As a 12 result, he contends his guilty plea was involuntary. 13 Under the Strickland test, “a defendant who pleads guilty upon the advice of 14 counsel may only attack the voluntary and intelligent character of the guilty plea by 15 showing that the advice he received from counsel was ineffective.” Lambert v. Blodgett, [16] 393 F.3d 943, 979 (9th Cir. 2004) (quoting Hill, 474 U.S. at 56-57 ). Thus, in a claim of 17 ineffective assistance of counsel arising out of a defendant’s guilty plea, the defendant 18 must meet the Strickland test by showing that (1) under an objective standard, “counsel’s 19 assistance was not within the range of competence demanded of counsel in criminal 20 cases” and (2) the defendant suffered actual prejudice because of this incompetence. 21 Lambert, 393 F.3d at 979-80 ; Lockhart, 474 U.S. at 57-58 . “Unless a defendant makes 22 both showings, it cannot be said that the conviction . . . resulted from a breakdown in the 23 adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687 . 24 Here, Baker flatly refuted that he told Petitioner a failure to enter into a plea 25 agreement would affect Cervantes’ “safety valve” treatment. Baker Decl., ECF No. 10126 3, 1-2. More importantly, however, Petitioner’s argument is contradicted by his own 27 sworn statements during his change of plea hearing. The Plea Agreement states that 28 “[n]o one has threatened defendant or defendant’s family to induce this guilty plea.” 1 ECF No. 25, 7. After placing Petitioner under oath, Magistrate Judge Brooks found 2 Petitioner had knowingly and voluntarily entered into the Plea Agreement, and that Plea 3 Agreement “did not result from force, threats or promises (other than those made in the 4 plea agreement).” Findings and Recommendations, ECF No. 26, 4. 5 These were findings to which Petitioner did not object. Because Petitioner’s new 6 argument is devoid of evidence of counsel’s coercion, his claim lacks support. 7 Accordingly, Petitioner’s first claim fails to show ineffective assistance of counsel. 8 Even assuming Baker had made the alleged statements, Petitioner has not claimed 9 he would have gone to trial on all three cases brought against him. Thus, Petitioner has 10 also failed to demonstrate any actual prejudice. See Hill, 474 U.S. at 58-59 . Petitioner’s 11 first claim fails to show ineffective assistance of counsel for this reason as well. 12 2. Petitioner has not shown his counsel was inadequate during the sentencing hearing with respect to presenting mitigating evidence [13] 14 Petitioner’s Second and Third Grounds for relief allege his counsel was ineffective 15 by failing to accept and present mitigating evidence at Petitioner’s sentencing hearing, 16 specifically (1) letters from his family and (2) evidence of Petitioner’s “post-arrest 17 rehabilitative efforts.” Mot., ECF No. 89, 5, 25-26. 18 The Strickland test also applies during noncapital sentencing proceedings. Daire v. 19 Lattimore, 812 F.3d 766, 767 (9th Cir. 2016) (citing Glover v. United States, 531 U.S. 20 198, 202-04 (2001). At sentencing, “the formulation of the standard [for deficient 21 performance, as an element of ineffective assistance of counsel] is the same: reasonable 22 competence in representing the accused.” See Premo v. Moore, 562 U.S. 115, 126 (2011) 23 (quoting Strickland, 466 U.S. at 688 ) (alteration in original). Thus, in a claim of 24 ineffective assistance of counsel arising out of counsel’s performance at a defendant’s 25 sentencing hearing, the defendant must meet the Strickland test by showing that (1) under 26 an objective standard, “counsel’s assistance was not within the range of competence 27 demanded of counsel in criminal cases” and (2) the defendant suffered actual prejudice 28 because of this incompetence. Lambert, 393 F.3d at 979–80; Lockhart, 474 U.S. at 57 - 1 58. 2 Petitioner’s arguments boil down to a claim that his attorney did not present all of 3 the evidence Petitioner wanted his attorney to present. However, a defendant may not cry 4 ineffective assistance of counsel merely because his or her attorney did not raise all of the 5 arguments the client wishes the attorney would have raised. Jones v. Barnes, 463 U.S. 6 745, 751 (1983) (noting that counsel “must be allowed to decide what issues are to be 7 pressed”). Courts view attorneys’ professional judgment with a presumption of 8 deference. Strickland, 466 U.S. at 689 ; see also Smith v. Stewart, 140 F.3d 1263 , 1274 9 n.4 (9th Cir. 1998) (noting that counsel is not required to file “kitchen-sink briefs” 10 because it “is not necessary and is not even particularly good . . . advocacy”). 11 During the sentencing hearing, Petitioner’s counsel addressed Petitioner’s family 12 support and noted that members of Petitioner’s family were present in the Court for the 13 hearing. Tr., ECF No. 96, 3-4. Moreover, Petitioner’s counsel denies that Petitioner ever 14 gave counsel letters from Petitioner’s family to submit to the Court. Baker Decl., ECF 15 No. 101-3, 2-3. Even if they existed, the Court does not find that they would have 16 affected Petitioner’s sentence. The Court was aware of the Petitioner’s family support 17 when considering the factors contained in 18 U.S.C. § 3553 . The Court determined that a 18 sentence at the high end of the guideline range was appropriate given Petitioner’s 19 significant criminal history and involvement with both drugs and firearms. Tr., ECF No. 20 96, 22. Letters from family would not have caused a change in Petitioner’s sentence 21 here. 22 Petitioner also argues his counsel failed to present mitigating evidence at his 23 sentencing hearing of his “post-arrest rehabilitative efforts.” Mot., ECF No. 89, 4-5. 24 However, Petitioner filed his own Sentencing Memorandum, which discussed how 25 Petitioner had decided to change his life and realized the error of his actions. See ECF 26 No. 55 at 3-4. Petitioner himself exercised his opportunity to speak directly to the Court 27 during his sentencing hearing as evidenced by over ten pages of the transcript from the 28 sentencing hearing, at which time Petitioner explained what led him to commit his crimes 1 and how much he regretted his actions. ECF No. 96, 5-15. In addition, Petitioner’s 2 counsel addressed Petitioner’s post-arrest conduct during the sentencing hearing, as well 3 as the significant impacts his case had on his family. Id. at 3-4 . Counsel likewise argued 4 that even with a sentence at the low end of the guideline range, Petitioner would be a 5 changed man and “a productive member of society.” Id. 6 In sum, attorneys are not required to advance every argument their client wants 7 them to make in order to provide effective representation. Barnes, 463 U.S. at 751 . 8 Rather, courts vest counsel with discretion in representing their clients. Strickland, 466 9 U.S. at 689. For these claims, Petitioner has failed to make any showing that his 10 counsel’s performance here fell below the standard of competence required of counsel. 11 See Strickland, 466 U.S. at 687-88 . Accordingly, Petitioner’s Second and Third Grounds 12 fail to show ineffective assistance of counsel. 13 3. Petitioner has not shown a material inaccuracy in the PSR 14 Petitioner’s Fourth Ground for relief alleges ineffective assistance of counsel 15 because his attorney failed to advise Petitioner of his right to correct inaccurate 16 information in the PSR. Mot., ECF No. 89, 5-6. According to Petitioner, the PSR 17 incorrectly indicated that Petitioner’s girlfriend, Marcia Cervantes, distributed 18 methamphetamine at Petitioner’s direction. Id. at 6. He contends that if “the Court 19 would have taken [the error] into consideration at sentencing to address the errors,” he 20 would have had “the probability of a different outcome at sentencing.” Id. at 28. The 21 Government argues Petitioner’s counsel reviewed the PSR with Petitioner in detail, and 22 that this factual allegation is also contained in Petitioner’s Plea Agreement, which 23 Petitioner conceded under oath was true and could be proven at trial beyond a reasonable 24 doubt. Opp’n, ECF No. 101, 5. 25 As explained above in analyzing Ground Eight, this argument fails to show actual 26 prejudice because the Court adopted Petitioner’s proposed guideline range and did not 27 include the two-level increase in adjusted offense level recommended in the PSR for 28 Petitioner’s alleged role in supervising Cervantes. Moreover, Petitioner’s claims are 1 dubious. Petitioner’s counsel stated he “went over the PSR with [Petitioner] in detail 2 prior to sentencing and he failed to bring any alleged inaccuracies to [counsel’s] 3 attention.” Baker Decl., ECF No. 101-3, 3. Petitioner also agreed under oath and subject 4 to the penalty of perjury that the facts he now disputes were “true, undisputed and could 5 be proven at trial beyond a reasonable doubt.” Plea Agreement, ECF No. 25, 4. 6 Petitioner further reaffirmed the voluntariness and accuracy of the facts contained in the 7 Plea Agreement before Magistrate Judge Brooks. Findings and Recommendations, ECF 8 No. 26, 4. In short, the record is devoid of evidence supporting Petitioner’s claim that the 9 PSR contained inaccurate facts or that those inaccurate facts caused him prejudice. 10 Accordingly, Petitioner has failed to prove either ineffective assistance of counsel 11 or prejudice. 12 4. Petitioner has not demonstrated the Government wanted his help 13 Petitioner’s Fifth Ground for relief alleges ineffective assistance of counsel 14 because his attorney failed to inform the Court during sentencing that Petitioner offered 15 to cooperate with the Government. Mot., ECF No. 89, 6-7. He argues that he asked his 16 attorney to exclude the public from the courtroom so he could present confidential 17 information, but his attorney said he would not relay the request to the Court and advised 18 Petitioner not to make the request to the Court himself. Id. at 29. Petitioner argues that 19 he was unable to put on a proper defense and relay all mitigating evidence due to the 20 public’s presence in the courtroom. Id. However, he fails to articulate what evidence he 21 would have presented. Id. Undercutting the claims, Petitioner’s own counsel stated that 22 he presented Petitioner’s offer of cooperation to the Government, but the Government 23 rejected the offer. Baker Decl., ECF No. 101-3, 3. Accordingly, counsel reports that he 24 chose not to address the rejected offer of cooperation as he did not believe it would have 25 a positive impact on sentencing. Id. 26 To find ineffective assistance of counsel, Strickland requires counsel’s 27 representation to fall “outside the wide range of professionally competent assistance,” 28 and that “there is a reasonable probability that, but for counsel’s unprofessional errors, 1 the result of the proceeding would have been different.” 466 U.S. at 687-90 . First, the 2 Court has already acknowledged the public’s right to be present in the courtroom during 3 criminal proceedings. Presley, 558 U.S. at 215 . As such, the Court does not find Baker’s 4 failure to request that the public be excluded from the courtroom to constitute error. 5 Petitioner also addressed the Court directly for a significant period of time and could 6 have, but did not, relay this request to the Court. 7 Assuming for argument’s sake that this allegation calls into question counsel’s 8 performance, the Court concludes it would not have affected Petitioner’s sentence. Put 9 simply, Petitioner’s rejected offer to assist the Government would not have influenced the 10 Court’s sentence given Petitioner’s substantial criminal history and trafficking in both 11 drugs and firearms. Accordingly, Petitioner’s Fifth Ground for relief alleging his counsel 12 did not convey Petitioner’s offer to help the government fails to show ineffective 13 assistance of counsel. 14 C. Ground Six: Conditions of Supervised Release 4, 5, and 13 are vague 15 Both Petitioner and the Government agree that since Petitioner’s sentence became 16 final, the language of standard conditions of supervision 4, 5, and 13 have been amended 17 to address vagueness concerns. See Evans, 883 F.3d at 1162-1164 ; see also Opp’n, ECF 18 No. 101, 89 (“The Government respectfully submits that the Court should amend the 19 language of standard conditions of supervision 4, 5 and 13”). Because these conditions 20 do not provide Petitioner clear notice of what is required of him, Petitioner’s motion is 21 GRANTED-IN-PART. The Court strikes the Conditions of Supervised Release 4, 5, 22 and 13 from Petitioner’s sentence. 23 D. Petitioner’s Remaining Motions 24 Petitioner also filed a Motion to Compel Discovery. See ECF No. 92. Petitioner’s 25 motion asks the Court to compel his former attorney, David Baker, to assist Petitioner by 26 providing him discovery related to his Motion to Vacate, Correct, or Set Aside. Id. The 27 Court finds nothing in Petitioner’s Motion to Vacate that would have been aided by an 28 order compelling Petitioner’s former counsel to participate in discovery. Rather, the 1 || Court is able to render a decision on Petitioner’s Motion to Vacate with the existing 2 ||record in this case. Accordingly, Petitioner’s Motion to Compel Discovery is DENIED 3 moot. See Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (holding “that 4 || an issue is moot when deciding it would have no effect within the confines of the case 5 |/itself’). The Government’s Motion for Extension of Time to File Response, ECF No. 95, 6 likewise DENIED as moot. See id. 7 CONCLUSION 8 For the foregoing reasons, Petitioner’s Motion to Vacate is DENIED. ECF No. 9 ||89. Because the record refutes Petitioner’s factual allegations and otherwise precludes 10 || habeas relief, Petitioner’s Motion is DENIED without an evidentiary hearing. The Court 11 |/strikes Conditions of Supervised Release 4, 5, and 13. 12 Finally, the Court denies Petitioner a certificate of appealability. A defendant is 13 || required to obtain a certificate of appealability in order to appeal a decision denying a 14 || motion under 28 U.S.C. § 2255 . A court may issue a certificate of appealability where 15 || the movant has made a “substantial showing of the denial of a constitutional right,” and 16 || reasonable jurists could debate whether the motion should have been resolved differently, 17 that the issues presented deserve encouragement to proceed further. See Miller-El v. 18 || Cockrell, 537 U.S. 322, 335 (2003). This Court finds that Petitioner has not made the 19 ||necessary showing. A certificate of appealability is therefore DENIED. 20 IT IS SO ORDERED. 79 DATED: March 25, 2021 ~ ROGER T. BENITEZ 23 United States District Court Judge