United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Movant Jose Luis Pita-Mota, who is confined in the Federal Correctional Institution-Cumberland in Cumberland, Maryland, has filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV 13-2141 ("CV") Doc. 1; CR 09-1114 ("CR") Doc. 333.) Plaintiff United States of America (the "Government") filed a Response (CV Doc. 4), but despite having the opportunity to do so, Movant has not filed a reply.
Movant raises three grounds for relief in the § 2255 Motion: (1) Movant's counsel was ineffective by failing to attempt to negotiate a favorable plea agreement; (2) Movant's counsel was ineffective by failing to object to the admission of a co-defendant's plea agreement on the ground that the plea agreement constituted a guilty plea of a non-testifying co-defendant; and (3) Movant's counsel was ineffective by failing to raise, on appeal, the issue that the Court abused its discretion in denying Movant's motion for severance and by counsel's failure to argue the inadmissibility of a co-defendant's plea agreement as a violation of Movant's rights to confrontation.
On June 3, 2010, a federal grand jury returned a Second Superseding Indictment charging Movant with conspiracy and possession with the intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii); possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and illegal reentry by a removed alien in violation of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). (CR Doc. 120.) Three co-defendants were also charged with those drug and similar firearm counts. (Id.)
Jury trial began on June 22, 2010, after Movant and three co-defendants rejected plea agreements. (CR Doc. 151 - RT 6/18/10 36-38.) On June 30, 2010, the jury found Movant guilty of the two drug trafficking counts (Counts 1 and 2); felon in possession of a firearm (Count 6); and illegal reentry of a removed alien (Count 9). (CR Doc. 162 - RT 6/30/10 1045-46.) The jury found Movant not guilty of possession of a firearm in furtherance the drug trafficking offenses (Count 3). (Id.)
On October 21, 2010, the Court sentenced Movant to a sentence of 324 months' imprisonment, the low end of the resulting Sentencing Guideline range, consisting of concurrent terms of 324 months on each of the drug trafficking counts and 120 months on the felon in possession and reentry after deportation counts. (CR Doc. 240 - RT 10/21/10 15-16.) The Court also sentenced Movant to concurrent terms of supervised release to follow his release from imprisonment; five years on the drug trafficking counts, and three years on the felon in possession and reentry after deportation counts. (Id.)
Movant appealed and argued that the Court erred (a) in allowing modus operandi testimony regarding drug traffickers; (b) by admitting a redacted statement of a non-testifying co-defendant; (c) by admitting "other act" evidence against two co-defendants; (d) by admitting lay testimony of voice identification; and (e) by denying a downward adjustment for acceptance of responsibility and imposing the 324-month sentence. See C.A. No. 10-10514. The Ninth Circuit Court of Appeals rejected Movant's claims and affirmed his convictions and sentences in a memorandum disposition. (CR Doc. 320-1.) The Court of Appeals found that there was no reversible error and that "the evidence against Defendant was overwhelming." (Id. at 2-3.) The mandate issued on June 26, 2012. (CR Doc. 320.)
Movant filed a petition for certiorari to the United States Supreme Court on September 12, 2012. (CV Doc. 4, Exh. A.) The petition was denied on October 15, 2012. (CV Doc. 4, Exh. B.
The Government claims that all three grounds for relief set forth in Movant's Motion are without merit and fail to establish that he is entitled to relief. The Government contends that Movant's Motion should be denied and dismissed with prejudice.
The two-prong test for establishing ineffective assistance of counsel was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a convicted defendant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 687-88. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. See id. at 689-90. To satisfy the second prong of the Strickland test, "the ...