United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge
THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
before the Court is Rafiq A. Brooks'
(“Movant”) “Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody” (the “Motion to Vacate”)
(Doc. 1). For the reasons explained herein, the
undersigned recommends that the Court deny and dismiss the
Motion to Vacate with prejudice without holding an
December 2012, a jury convicted Movant of (i) Conspiracy to
Possess with Intent to Distribute Marijuana (Count 1); (ii)
Possession with Intent to Distribute Marijuana on or about
November 17, 2011 (Count 3); and Possession with Intent to
Distribute Marijuana on or about November 9, 2011 (Count 4).
(CR Docs. 139, 453). The Court sentenced Movant to a prison
term of 110 months on Count 1, sixty months on Count 3, and
sixty months on Count 4. (Doc. 453). All sentences run
appealed his convictions to the Ninth Circuit Court of
Appeals. In a December 22, 2014 Memorandum, the Ninth Circuit
affirmed Movant's convictions on Counts 1 and 3. (CR Doc.
527). However, the Ninth Circuit reversed Movant's
conviction on Count 4 and remanded the matter to the District
Court for a determination of whether resentencing is
appropriate. (Doc. 527-1 at 22). At a January 15, 2015 status
conference, the Government made an oral motion to dismiss
Count 4 with prejudice. (CR Doc. 532). The Court granted the
motion and found that resentencing is not necessary.
February 18, 2015, Movant, through counsel, filed a
“Motion for Sentence Reduction and Resentencing”
(Doc. 533) in light of recent changes to the Sentencing
Guidelines applicable to drug cases and the Court's
dismissal of Count 4. The Court denied the Motion. (Doc.
554). The Court subsequently granted the parties' Joint
Stipulation for Reduction of Sentence. (Docs. 547, 555).
Pursuant to the Stipulation, the Court reduced Movant's
sentence on Count 1 from 110 months to 92 months. (Doc. 555).
On October 28, 2016, Movant timely filed the Motion to Vacate
Legal Standards Applicable to IAC Claims
three grounds for relief present ineffective assistance of
counsel claims. “Under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), a defendant claiming ineffective assistance of
counsel must show that counsel's actions were not
supported by a reasonable strategy and that the error was
prejudicial.” Massaro v. United States, 538
U.S. 500, 505 (2003). Under the first prong, a defendant must
show that a counsel's representation falls “below
an objective standard of reasonableness” as measured by
“prevailing professional norms.”
Strickland, 466 U.S. at 687-88. There is a
“strong presumption that counsel's performance
falls within the wide range of professional
assistance.” Kimmelman v. Morrison, 477 U.S.
365, 381 (1986). “A reasonable tactical choice based on
adequate inquiry is immune from attack under
Strickland.” Gerlaugh v. Stewart, 129
F.3d 1027, 1033 (9th Cir. 1997).
respect to the second prong, “Strickland asks
whether it is ‘reasonably likely' the result would
have been different.” Harrington v. Richter,
131 S.Ct. 770, 792 (2011) (quoting Strickland, 466
U.S. at 696). “This does not require a showing that
counsel's actions ‘more likely than not altered the
outcome,' but the difference between
Strickland' s prejudice standard and a
more-probable-than-not standard is slight and matters
‘only in the rarest case.'” Id.
(quoting Strickland, 466 U.S. at 693, 697).
“The likelihood of a different result must be
substantial, not just conceivable.” Id.
(citing Strickland, 466 U.S. at 693).
DISCUSSION A. Ground One
Ground One, Movant alleges that his trial counsel was
constitutionally ineffective by advising Movant “that
he had an actionable defense that could be asserted at
trial.” (Doc. 2 at 8). Movant contends that
“[c]ompetent counsel would have told [Movant] that,
given the weight of the evidence and his statements, the
likelihood of succeeding at trial would be minimal. Had
[trial counsel] provided this well-reasoned advice, [Movant]
would have elected not to go to trial and would have instead
pleaded guilty.” (Id.). Yet the Government has
provided a copy of an April 18, 2012 letter in which trial
counsel advised Movant that:
If our motions are denied, then at trial I'd rate your
chances at quite a bit less than 50%. The [co-defendants]
look pretty guilty, and you were with them, so the jury-being
human- will tend to assume you are guilty by ...