United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
TO THE HONORABLE SUSUN R. BOLTON:
On November 8, 2013, Movant, currently confined at the Federal Bureau of Prisons facility in Coleman, Florida, docketed a motion seeking to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. Movant contends his federal criminal conviction must be vacated because he was denied his right to the effective assistance of counsel. Respondent docketed a response to the motion on August 28, 2014. Any reply to the answer to the motion was due September 28, 2014.
I Procedural Background
An indictment returned July 6, 2010, charged Movant and two co-defendants with one count of conspiracy to commit obstruction of justice by retaliating against a witness and aiding and abetting, in violation of 18 U.S.C. § 1513(f). See Criminal Doc. 1. Movant and his co-defendants were also indicted on one count of conspiracy to commit obstruction of justice by assaulting, i.e., retaliating against, a witness for his testimony in a criminal matter, and aiding and abetting, in violation of 18 U.S.C. §§ 1531(b)(1) and (c) and 2. Id.
On February 16, 2011, a jury found Movant guilty on both counts of the indictment. See Criminal Doc. 71. The probation office calculated a sentencing range of 360 months imprisonment to life imprisonment. See Criminal Doc. 92. On May 23, 2011, Movant was sentenced to concurrent 360 month terms of imprisonment on each count, followed by five years of supervised release. The sentences in this matter were ordered to be served consecutively to the terms of imprisonment Movant was already serving for a conviction for a 2005 assault with a deadly weapon and a 2008 second-degree murder conviction, to which latter charge Movant pled guilty. See Criminal Doc. 96.
Movant took a timely direct appeal of his convictions and sentences. In his direct appeal Movant argued the District Court erred by not excluding the testimony of the prosecution's expert witness and that his sentence was unreasonable. The Ninth Circuit Court of Appeals affirmed Movant's convictions and sentences in a memorandum decision entered October 17, 2012. See Criminal Doc. 117; 485 Fed. App. 285, 2012 WL 4918980.
In his section 2255 motion, Movant contends he was denied his right to the effective assistance of counsel.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052,  (1984).... To prevail on a claim of ineffective assistance of counsel, petitioner must show 1) his attorney's performance was unreasonable under prevailing professional standards; and 2) there is 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, 104 S.Ct. at 2064). "Strickland defines a reasonable probability as a probability sufficient to undermine confidence in the outcome.'" Id.
United States v. Span , 75 F.3d 1383, 1386-87 (9th Cir. 1996). See also United States v. Thomas , 417 F.3d 1053, 1056 (9th Cir. 2005). Movant must overcome a strong probability that counsel's conduct fell within a wide range of reasonable professional assistance or what could be considered sound trial strategy. United States v. Fredman , 390 F.3d 1153, 1156-57 (9th Cir. 2004).
The Sixth Amendment entitles a criminal defendant to "a reasonably competent attorney, whose advice is within the range of competence demanded of attorneys in criminal cases." United States v. Cronic , 466 U.S. 648, 655, 104 S.Ct. 2039, 2044-45 (1984) (internal quotations omitted). In order to find that Movant was deprived of the effective assistance of counsel and grant him relief on this claim pursuant to section 2255, the Court must conclude Movant's trial counsel's performance was deficient and that the deficient performance prejudiced Movant. See, e.g., United States v. Manzo , 675 F.3d 1204, 1209-10 (9th Cir. 2012); United States v. Withers , 638 F.3d 1055, 1066-67 (9th Cir. 2011). It is Movant's burden to provide the Court with sufficient evidence from which the Court can conclude counsel's performance was unconstitutionally ineffective. See, e.g., Withers , 638 F.3d at 1066-67.
Counsel's performance is deficient when it is unreasonable, or not "within the range of competence demanded of attorneys in criminal cases." Strickland , 466 U.S. at 687, 104 S.Ct. at 2054. Judicial scrutiny of counsel's performance must be "highly deferential." Id., 466 U.S. at 689 , 104 S.Ct. at 2065. See also Carter v. Lee , 283 F.3d 240, 248-49 (4th Cir. 2002). Movant must overcome a strong presumption that his counsel's representation was within a wide range of reasonable professional assistance. See ...