United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
Pending before the Court are Petitioner Jose Benjamin Hernandez's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) and United States Magistrate Judge Michelle H. Burns' Report and Recommendation ("R & R"), which recommends that the Court deny the Motion. (Doc. 23.) Petitioner filed objections to the R & R on August 25, 2014. (Doc. 26.) Therefore, the Court will review the record on all relevant matters de novo. The Court accepts the R & R as to the second and third argument raised in Petitioner's objection and orders a hearing as to the first argument asserted as set forth below.
On August 27, 2009, Petitioner was arrested during a drug deal in which he possessed methamphetamine. Although Petitioner did not possess a firearm at his arrest, a co-conspirator, Jesus Rivera-Alvarado, did. Officers also found two firearms in a vehicle driven by Felix Pita-Mota and Juan Carreno-Guitierrez, two other individuals involved in the deal. Petitioner, Rivera-Alvarado, Felix Pita-Mota, and Carreno-Guitierrez all departed from the home of Jose Luis Pita-Mota to arrive at the deal location. Petitioner later acknowledged that he lived with Jose Pita-Mota for two to three months before his arrest, and during that time he observed Pita-Mota make methamphetamine and met with Pita-Mota's drug suppliers. Three weeks before the deal, Pita-Mota also showed Petitioner a.38 super firearm that he possessed.
After being detained, Petitioner was charged with the crimes of (1) conspiracy to possess methamphetamine with intent to distribute (the "First Count"), and (2) distribution and possession with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine (the "Second Count"). He also engaged in a "free talk" with the Government, in which Petitioner was to give a full and honest account of the crimes about which he knew and the Government would evaluate the information in good faith without promising anything in return. The Government terminated the free talk when it ascertained that Petitioner was not being truthful. The Government later offered Petitioner a deal in which the government agreed to drop the Second Count if Defendant pled guilty to the First. The Government further agreed to recommend a sentence no higher than the middle of the Sentencing Guidelines range. Petitioner alleges that his trial counsel never told him about this offer and that the offer expired.
Petitioner pled guilty to the First and Second Counts without entering into a plea agreement. At sentencing, Petitioner's presentencing report included a sentence enhancement for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1). The report also included a downward adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b). The Court accepted the proposed Sentencing Guidelines calculation in the report. On direct appeal, Petitioner challenged the Court's imposition of the sentence enhancement for possession of a weapon. ( Id., Ex. 4.) The Ninth Circuit affirmed the sentence. ( Id., Ex. 5.)
Petitioner brings the current Motion, requesting relief under § 2255 on grounds that (1) Petitioner's counsel was ineffective in failing to inform Petitioner of a plea offer; (2) Petitioner's counsel was ineffective in failing to recommend a downward departure for acceptance of responsibility; and (3) Petitioner's sentence violates his Sixth Amendment right to a jury trial because the sentence was enhanced for possession of a firearm when Petitioner did not possess a firearm at his arrest. (Doc. 1.)
I. Legal Standard
A federal prisoner may seek relief under 28 U.S.C. § 2255(a) if his sentence was imposed in violation of the United States Constitution or the laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. When a prisoner petitions for post-conviction relief, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. § 636(b)(1). If a petitioner files timely objections to the magistrate's R & R, the district judge must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Id .; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Fed.R.Civ.P. 72(b).
A § 2255 petition is an "extraordinary remedy, " however, and "will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (citation omitted). If a prisoner could have raised a claim on direct appeal but did not do so, he has "procedurally defaulted" on that claim and cannot present it in a 2255 petition unless he shows (1) cause for failing to raise it on direct appeal and "actual prejudice" from that failure or (2) that he is "actually innocent." Id. at 622 (citations omitted). A claim is exempt from the procedural default rule, however, if it cannot be presented without further factual development. Id. at 621. A claim of ineffective assistance of counsel may fall within this exemption. Masaro v. United States, 538 U.S. 500, 509 (2003).
Section 2255 "requires the District Court to hold an evidentiary hearing unless the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Crispo v. United States, 443 F.2d 13, 14 (9th Cir. 1971) (quoting 28 U.S.C. § 2255). "To earn the right to a hearing, therefore, [a petitioner is] required to allege specific facts which, if true, would entitle him to relief." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996); see also United States v. Burrows, 872 F.2d 915, 916 (9th Cir. 1989) ("The district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.").
A. Ground One: Ineffective Assistance of Counsel, Plea Agreement
The two-prong test for establishing ineffective assistance of counsel was established 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 ...