Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND Movant's Plea Agreement includes the following statement of factual basis: I am not a citizen or national of the United States. I was deported, excluded, or removed from the United States through Calexico, California on December 4, 2003. I was voluntarily present and found in the United States in or near San Luis, Arizona on September 4, 2004. I did not obtain the express consent of the Secretary of the Department
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 1-

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
United States of America, Plaintiff/Respondent -vsJose Angel Romero-Lopez, Defendant/Movant CR-04-1008-PHX-JAT CV-06-1017-PHX-JAT (JI) REPORT & RECOMMENDATION On Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

I. MATTER UNDER CONSIDERATION Movant, following his conviction in the United States District Court for the District of Arizona, filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on March 2, 2007 (#31). On June 8, 2007, Respondent filed its Response (#36), attacking the merits of the Motion. Movant has not filed a reply, and the time to do so has expired. The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases , Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of Homeland Security to reapply for admission to the United States prior to returning to the United States. Furthermore, for sentencing purposes, I admit I was convicted of possession of a narcotic controlled substance for sale, a felony, on September 3, 2002 and I was represented by an attorney. I was sentenced to three years prison. (Plea Agreement, #12 at 8.)

B. PROCEEDINGS AT TRIAL On September 7, 2004, Movant was charged by Complaint (#1) with one count of attempted re-entry after removal, and one count of re-entry after a felony, in violation of 18 U.S.C. § 1326(a) and (b)(2). He made an initial appearance on September 7, 2004, and attorney Bruce Yancey was appointed to represent Movant. (M.E. 9/7/04, #2.) On September 15, 2004, Movant executed a Waiver of Indictment (#4), consenting to proceeding by way of information. On the same day Movant executed a Consent (#5) to plead guilty before a magistrate judge, and an Information (#6) was filed, which again charged Movant with one count of attempted re-entry, and one count of re-entry. Movant subsequently entered into a written Plea Agreement (#12) in which Movant agreed to plead guilty to Count II (re-entry) in exchange for dismissal of Count I (attempted re-entry). The Government stipulated to an appropriate sentence, dependent upon Movant's criminal history, the resulting offense level under the United States Sentencing Guidelines, and various agreed upon adjustments. It was agreed that Movant would receive a three-level downward departure for acceptance of responsibility. It was agreed that a Level 24 Offense would be adjusted by a four level downward departure for savings to the government pursuant to U.S.S.G. § 5K3.1, yielding a sentencing range of 24 to 63 months. A Level 20 0ffense would receive a two level departure, for a range of 18 to 51 months, and a Level 16 Offense would receive a one level departure, for a range of 10 to 37 months. (#12 at 3-4.) In addition, the plea agreement contained the following waiver of Movant's rights to appeal and collaterally attack his conviction and sentence. The defendant waives any and all motions, defenses, probable
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 2-

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (#12 at 5.)

cause determinations, and objections which the defendant could assert to the information or indictment or the Court's entry of judgment against the defendant and imposition of sentence upon the defendant (including any constitutional claims pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004) and its progeny) providing the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case.

On September 15, 2004, Movant entered his plea of guilty before the undersigned magistrate judge (M.E. 9/15/04, #7), who found the plea to have been knowingly and voluntarily made and recommended that it be accepted. (Findings, #8.) Movant appeared for sentencing before District Judge Teilborg on November 29, 2004. Movant's plea was accepted and Movant was sentenced to a term of 63 months. (M.E. 11/29/04, #10; Judgement, #11.)

C. PROCEEDINGS ON DIRECT APPEAL On December 9, 2004, Movant filed a pro se Notice of Appeal and Collateral Attack (#13), arguing that defense counsel had lied and coerced Movant into entering a guilty plea, and that counsel failed to address Movant's need for drug rehabilitation. The filing was treated as a notice of appeal, and new counsel was appointed to represent Movant on appeal. (Order 1/28/05, #15.) On March 17, 2006, the Ninth Circuit Court of Appeals dismissed the appeal in light of the valid appeal waiver. The Mandate (#23) was issued the same date.

D. PRESENT MOTION TO VACATE Original Motion - Movant filed his original Motion to Vacate (#24) on April 11, 2006. Movant's motion asserted two grounds for relief: (A) Movant's plea agreement was coerced by counsel's representation that Movant would receive a sentence of 120 months if
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 3-

Page 3 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

he did not accept the plea agreement; and (B) counsel was ineffective for failing to explain the plea agreement, or otherwise adequately advise Movant of his options. On September 28, 2006, Respondent filed its Response (#28), conceding that Movant's motion was timely, but arguing that Movant failed to establish ineffective assistance of counsel, based upon an affidavit of trial counsel that reflects that he advised Movant that without the benefits of the plea agreement, a conviction with his criminal history would result in a sentencing range of 100 to 125 months. Movant filed a Reply (#29) asserting: (1) denial of his Fifth Amendment Right to prosecution on a grand jury indictment; (2) that any waiver of that right was unknowingly made; (3) counsel was ineffective for failing to assert Movant's right to an indictment and for failing to raise the absence of an allegation of a prior conviction in the information; (4) counsel was ineffective for waiving Movant's right to appeal; (5) Movant's waiver of appeal rights was not knowingly made; (6) Movant was improperly sentenced under the United States Sentencing Guidelines, as determined by United States v. Booker, 125 S.Ct. 738 (2005), because Movant's sentence was derived from an offense level based on facts not proven to a jury or admitted by Movant; (7) Movant's rights under the Vienna Convention Treaty Act, Article 36 were denied when he was not advised of his right to report to his Embassy/Consular office. In an Order filed February 15, 2007 (#30), noting that the Reply asserted new grounds for relief which would not otherwise be considered, the Court gave Movant twenty days to amend his Motion to Vacate. In response, on March 2, 2007, Movant filed an Amended Motion to Vacate (#31). The Court construed that filing as including a motion to amend (Order 4/3/7, #33), which was eventually granted (Order 5/23/7, #35). Amended Motion - Movant's Amended Motion asserts the following four claims for relief: (1) he was denied his right to prosecution on a grand jury Indictment; (2) (a) that any waiver of his right to indictment was unknowingly made, (b) that he received ineffective assistance of counsel when he waived his right, and (c) that his sentence exceeds the statutory maximum; (3) that his waiver of his appeal rights was not knowingly made because of his
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 4-

Page 4 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ineffective assistance of counsel; and (4) that he was improperly sentenced under U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004). On April 16, 2007, Respondent filed its Response (#36) to the Amended Motion, arguing that: (1) Movant was advised of his rights to a grand jury indictment, and received effective assistance of counsel, and therefore his plea and waiver were knowingly entered; (2) that Movant's sentence was within the authorized range, and was enhanced only by his prior convictions; (3) Movant fails to establish that counsel was ineffective for allowing Movant to waive his appeal rights; (4) Movant's sentence was increased solely upon the basis of his prior convictions, which may properly be found by the judge at sentencing, and which Movant admitted; and (5) Movant is not entitled to an evidentiary hearing. The Court's order granting Movant's motion to amend directed Movant to file a reply within 30 days of service of a response to this amended motion. (Order 5/23/7, #35.) Movant did not reply, and the time to do so has now run.

III. APPLICATION OF LAW TO FACTS A. WAIVER OF RIGHT TO GRAND JURY INDICTMENT For his first ground for relief Movant argues that he was denied his right to prosecution on a grand jury indictment. Rather than being denied that right, Movant waived it. On September 15, 2004, Movant executed a Waiver of Indictment (#4), consenting to proceeding by way of information. At the time of his execution of the waiver, at his change of plea hearing, Movant was advised of and agreed to waive that right: THE COURT: Under the Constitution of the United States you have the right to have a Grand Jury review your case. A Grand Jury is made up of at least 16 but not more than 23 people. And at least 12 of those people must agree that there is probable cause to believe you did what you're accused of doing in order for your case to proceed. If your matter were presented to a Grand Jury, it might or it might not decide that your case should proceed. If they decided your case should proceed, they would sign what's called an Indictment. You would be indicted. Instead of an Indictment your case has been brought today by that Information signed by the prosecutor not the Grand Jury. You have the right to insist upon a review and an Indictment by
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 5-

Page 5 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the Grand Jury, but you can give up that right and agree to proceed here today on the Information signed by the prosecutor. Those are your rights to have a Grand Jury Indictment. Do you understand them? THE DEFENDANT: Yes. THE COURT: Have you discussed with your lawyer giving up your right to a Grand Jury Indictment? THE DEFENDANT: Yes. THE COURT: Have any threats or promises been made to you to cause you or induce you to give up your rights to have a Grand Jury Indictment? THE DEFENDANT: No. THE COURT: Do you wish to sign a written waiver at this time and give up your right to a Grand Jury Indictment? THE DEFENDANT: Yes. (R.T. 9/15/04, #20 at 8-9.) This first ground for relief is without merit.

B. VALIDITY OF WAIVER OF GRAND JURY INDICTMENT As part of his second ground for relief, Movant asserts that any waiver of his right to indictment was unknowingly made because: (1) he still does not understand the right, and (2) it was constitutionally deficient performance for counsel to allow Movant to plead guilty on the basis of the Information. (#31 at 5.)

1. Movant's Understanding of Right Movant offers nothing to support his contention that he still "does not understand the `Grand Jury Indictment'." (#31 at 5.) He offers no argument why the explanation of the Grand Jury and Indictment process, and his rights thereto, as given to him at his change of plea hearing was not adequate for him to understand his right.

2. Ineffective Assistance of Counsel Further, Movant offers nothing to explain why counsel was deficient for allowing Movant to plead to the Information. Claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Movant must show: (1) deficient performance - counsel's representation fell below
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 6-

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694. Deficient Peformance - Movant does not explain why it was deficient performance for counsel to allow Movant to plead to the Information. A deficient performance is one in which counsel's errors were so great he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). An objective standard applies to proving such ineffectiveness, and requires a defendant to demonstrate that counsel's actions were "outside the wide range of professionally competent assistance." United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991)(quoting Strickland, 466 U.S. at 687-90). Here, the only deficiency pointed to by Movant is trial counsel's allowing him to plead to the information. However, competent counsel routinely advise their clients to waive their rights to a grand jury indictment and to plead guilty to an information, particularly where, as here, there are substantial benefits to be obtained by doing so, and little to be gained by insisting on an indictment. Given the relatively straightforward burden of proof in an illegal re-entry case, there was a high likelihood that the Government could have obtained an indictment against Movant. While there could conceivably be other marginal, tactical benefits to insisting on an indictment in a particular case, Movant has not suggested why that would have been so in this case. Further, Movant had much to gain by the waiver. The Government's proffered plea agreement was conditioned upon Movant's participation in it's "fast track" program, which included waiver of indictment. As a result of that agreement, Movant obtained not only dismissal of one count, but an agreement that Movant would receive a three-level downward departure for acceptance of responsibility, plus an additional downward departure for savings to the government pursuant to U.S.S.G. § 5K3.1. (#12 at 3-4.) Had counsel insisted on a grand jury indictment "the plea offer would have been withdrawn and that and [sic]
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 7-

Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

subsequent offer would not be as favorable to the defendant, Jose Romero-Lopez, as the `fast track plea offer'." (Aff. of Trial Counsel, Exhibit C to Response, #36.) In short, Movant offers no explanation why, given the circumstances, it was deficient for counsel to advise Movant to plead guilty to the Information. Prejudice - Moreover, in the context of a guilty plea, Movant must prove he was prejudiced from that ineffectiveness by demonstrating a reasonable probability that but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The defendant must show "that but for counsel's errors, he would either have gone to trial or received a better plea bargain." U.S. v. Howard, 381 F.3d 873, 882 (9th Cir. 2004). Movant makes no such allegations. Moreover, given the considerable benefits of sentencing provided for under the terms of the plea agreement, and the relatively straightforward burden of proof in an illegal re-entry case, the undersigned would find any such allegations highly suspect. Conclusion - Movant has failed to establish that his waiver of his grand jury rights was not knowingly and voluntarily entered. Accordingly, this portion of Ground Two is without merit.

C. WAIVER OF APPELLATE RIGHTS For his Ground Three for relief, Movant argues that his waiver of his appeal rights: (1) was not knowingly made because counsel was ineffective by giving bad advice, and (2) could not validly extend to issues coming up after sentencing.

1. Effect of Ninth Circuit Decision In denying Movant's direct appeal, the Ninth Circuit noted that Movant had made a "valid appeal waiver." Ordinarily, the doctrines of res judicata and collateral estoppel do not apply to habeas corpus proceedings. Sanders v. U.S., 373 U.S. 1, 8 (1963). However, the law of the case doctrine is applicable on federal habeas review. Shore v. Warden, 942 F.2d 1117, 1123 (7th Cir. 1991). "The law of the case doctrine `ordinarily precludes a court from
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 8-

Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

re-examining an issue previously decided by the same court, or a higher appellate court, in the same case.'" U.S. v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994) (quoting U.S. v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985)). Under this doctrine, a district court will ordinarily refrain from acting if an appellate court previously has issued a decision on the merits of the claim. U.S. v. Caterino, 29 F.3d at 1395. Thus, the Ninth Circuit has long held that "[i]ssues disposed of on a previous direct appeal are not reviewable in a subsequent petition under § 2255." Stein v. U.S., 390 F.2d 625, 626 (9th Cir. 1968). Here, it is not apparent to the undersigned whether the Ninth Circuit assumed or determined that the appeal waiver was valid. To the extent that the matter was litigated before them, their findings would be the law of the case and binding in this proceeding. Because Respondent has not relied upon the Ninth Circuit's decision, and the outcome is not affected thereby, the undersigned will address the merits of the claim.

2. Permissibility of Waiver Movant argues that his waiver of his appeal rights could not validly extend to issues coming up after sentencing. He asserts that "it is well settled that a person cannot waive the right of issues if comes up after the sentencing." (Amended Motion, #31 at 7.) Some constitutional rights are automatically waived by entering an unconditional guilty plea.1 Of the rights that survive entry of a guilty plea, some still may be expressly waived through plea agreements.2 Some rights, however, can never be waived. For example,

Such rights include, among others, the right to a jury trial, the right to confront one's accusers, and the right to invoke the privilege against self-incrimination, McCarthy v. United States, 394 U.S. 459, 466 (1969), as well as the right to challenge constitutional defects which occur before entry of the plea. United States v. Broce, 488 U.S. 563, 573-74 (1989). For example, defendants generally may agree to waive the right to appeal the conviction and sentence, United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996), and the right to file a civil suit under 42 U.S.C. § 1983 seeking redress for government violations of constitutional rights. Newton v. Rumery, 480 U.S. 386, 397-98 (1987).
Document 37
- Filed 08/27/2007 92

1

Case 2:04-cr-01008-JAT

Page 9 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a plea agreement cannot bar defendants from asserting: "claims involving a breach of the plea agreement, racial disparity in sentencing among codefendants or an illegal sentence imposed in excess of a maximum statutory penalty," Baramdyka, 95 F.3d at 843; the right to a unanimous jury verdict, United States v. Ullah, 976 F.2d 509, 512 (9th Cir.1992); or a speedy trial, United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir.1997); the right to receive impeachment and exculpatory Brady evidence, U.S. v. Ruiz, 241 F.3d 1157 (9th Cir. 2001). Movant offers no authority showing a limitation on waivers of issues "com[ing] up after the sentencing." Nor does Movant explain what issue in his case has "come[] up after the sentencing." The things of which Movant complains all occurred at sentencing or prior thereto, i.e. in the course of entering his plea. This argument is without merit.3

3. Validity of Waiver Movant argues that his waiver of his appeal rights was not knowingly made because counsel gave "bad advices and mischaracterization come out of this case." Motion, #31 at 7.) It is true that a waiver of rights of appeal or collateral attack must be made "knowingly and voluntarily." United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994). Whether a particular waiver was made "knowingly and voluntarily" is a determination made by looking to the circumstances surrounding the signing and entry of the plea agreement. See United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). The Supreme Court has stated that "a defendant who pleads guilty upon the advice of counsel `may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].' " Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (internal quotation marks and citation omitted). Thus, if Movant could show that counsel's advice (Amended

Case 2:04-cr-01008-JAT

To the extent that Movant asserts "an illegal sentence imposed in excess of a maximum statutory penalty," Baramdyka, 95 F.3d at 843, those issues will be addressed hereinafter.
Document 37
- Filed 08/27/2007 10 -

3

Page 10 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

was deficient, then his waiver could be rendered involuntary and thus invalid. However, Movant does not explain how counsel's advice was deficient. "It is well-established that mere conclusory allegations are not sufficient to warrant relief under a § 2255 motion." Stein v. U.S., 390 F.2d 625, 627 (9th Cir. 1968). This argument is unsupported and is without merit. 4. Summary - Arguably the Ninth Circuit finding of a valid waiver of appeal rights is the law of the case. To the extent that it is not, Movant has failed to show herein that his appeal rights were not knowingly and voluntarily made. Accordingly, Movant's Ground Three is without merit.

D. UNAUTHORIZED SENTENCE In his second ground for relief, Movant argues that "any sentence above two years exceeds the statutory maximum and violates the Constitution." (Amended Motion, #31 at 5.) In his fourth ground for relief Movant argues that his rights under U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004) were violated when the trial court increased his offense level. Respondent argues that Movant's sentence was within the authorized range, and was enhanced only by his prior convictions, which may properly be found by the judge at sentencing, and which Movant admitted. In Blakely ,the Supreme Court found that the Washington state sentencing scheme violated the defendant's right to a jury because a judge determined questions of fact necessary to the application of a sentencing enhancement. In Booker, the Court applied Blakely to the the U.S. Sentencing Guidelines, rendering the guidelines advisory rather than mandatory, and concluded that any fact, other than a prior conviction, which increases the authorized sentence for a Federal defendant must be established by a guilty plea or found by a jury beyond a reasonable doubt. In sentencing Movant, the Court noted that Movant had pled guilty to violation 8 U.S.C. § 1326(a) enhanced by 1326(b)(2), Reentry After Deportation. That resulted in the
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 11 -

Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Court calculating a sentencing guideline using "a base offense level of 8, with 16 levels added because the defendant was convicted of a drug trafficking offense pursuant to 2L1.1." (R.T. 11/29/04, #18 at 4-5.) The Court then subtracted three levels for acceptance of responsibility, and departed downwards an additional four levels "pursuant to 5K3.1 for an approved early disposition program." (Id. at 5.) Accordingly, the Court calculated a total offense level of 17, and a Criminal History Category VI, resulting in a sentencing range of 51 to 63 months. (Id. at 6.) Movant was sentenced to 63 months. (Judgment, #11.) Thus, the only factor utilized to increase Movant's offense level was his prior conviction for a drug-trafficking offense. However, this was not a fact that the Court found. Rather it was a fact admitted by Movant as part of his plea agreement. Furthermore, for sentencing purposes, I admit I was convicted of possession of a narcotic controlled substance for sale, a felony, on September 3, 2002 and I was represented by an attorney. I was sentenced to three years prison. (Plea Agreement, #12 at 8.) Even had Movant not admitted the prior conviction, its existence could be found by the trial court. Under the Supreme Court's decision in Almendarez-Torres v. United States, [523 U.S. 224 (1998)] a judge may enhance a sentence under § 1326(b) for a prior conviction even if the fact of the conviction was not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt. Covian argues that the Supreme Court has effectively overruled Almendarez-Torres, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea. . . .All of these arguments, however, are squarely foreclosed by our precedents. We therefore must reject Covian's contention that the district court could not enhance his sentence based on its own finding of the fact of a prior felony conviction. U.S. v. Covian-Sandoval, 462 F.3d 1090, 1096 (9th Cir. 2006) (internal citations omitted). Accordingly, Movant's sentence was not improperly enhanced, and this claim is without merit. // //
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 12 -

Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

E. EVIDENTIARY HEARING In his prayer for relief, Movant requests an evidentiary hearing. The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir.1998). No evidentiary hearing is required if it can be " 'conclusively decided on the basis of documentary testimony and evidence in the record.' " Shah v. U.S., 878 F.2d, 1156, 1159 (9th Cir. 1989) (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989)). Moreover, mere conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981). Movant's claims are either conclusory and unsupported or, as viewed against the record, are plainly without merit, or they are not supported by controlling law. Accordingly, Movant is not entitled to an evidentiary hearing on his claims.

F. APPOINTMENT OF COUNSEL Finally, Movant's prayer for relief also seeks appointment of counsel. Constitution - It has generally been held that "there is no constitutional right to counsel at a collateral, post-conviction section 2255 proceeding." Sanchez v. U.S., 50 F.3d 1448, 1456 (9th Cir. 1995). Applicable Rules - Further, under the Rules Governing Section 2255 Proceedings, appointment of Counsel is only required when an evidentiary hearing is scheduled and may be ordered when complex discovery procedures are invoked. See Rules Governing Section 2255 Proceedings Rule 6(a) (appointment for discovery procedures) and 8(c) (appointment for evidentiary hearings). Here, Movant is not entitled to an evidentiary hearing, and no discovery has been sought. Discretionary Appointment - The Court is authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, to appoint counsel where "the court determines that the interests of justice so require...". 18 U.S.C. § 3006A(a)(2). The Court's discretion to appoint counsel is
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 13 -

Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

generally restrained by the scope of due process considerations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 107 S.Ct. 1911 (1987). "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look , 718 F.2d 952, 954 (9th Cir. 1983). Movant has not shown a likelihood of success on the merits of his claims, nor has he shown that the legal issues are so complex that he is unable to articulate his claims. Although certainly succinct in doing so, Movant has plainly identified and

communicated to the Court plausible, if ultimately unsuccessful, claims. In these circumstances, the undersigned finds no basis for an appointment of counsel

IV. RECOMMENDATION IT IS THEREFORE RECOMMENDED that the Movant's request for an evidentiary hearing and for appointment of counsel be DENIED. IT IS FURTHER RECOMMENDED that Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed March 2, 2007 (#31) be DENIED.

V. EFFECT OF RECOMMENDATION This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration
Case 2:04-cr-01008-JAT Document 37
- Filed 08/27/2007 14 -

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc). DATED: August 27, 2007
C:\USDC\04-1008-24r RR 07 02 01 re MVacate.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:04-cr-01008-JAT

Document 37

- Filed 08/27/2007 15 -

Page 15 of 15