1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 CASE NO. 20CR0245-LAB 10 LUIS MARROT CACERES,
11 Petitioner, ORDER DENYING MOTION TO 12 vs. SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. § 2255 13 UNITED STATES OF AMERICA, [Dkt. 56]
14 Respondent. 15 16 Luis Marrot Caceres moves to vacate or set aside his sentence under 17 28 U.S.C § 2255. (Dkt. 56). The United States opposes Caceres’s motion. 18 (Dkt. 59). Having carefully considered the pleadings, the Court DENIES the 19 motion. 20 I. BACKGROUND 21 In 2019, Caceres was arrested and charged with importing 22 methamphetamine and heroin into the United States in violation 28 U.S.C. 23 §§ 952 and 960. (Dkt. 56 at 3). On February 20, 2020, he pled guilty to both 24 charges. (Id.). The Court entered judgment and sentenced Caceres to a 120- 25 month term followed by five years of supervised release. (Dkt. 42). 26 II. QUESTION PRESENTED 27 Caceres contends he received ineffective assistance of counsel during 1 supplement the record. (Id. at 15). 2 A. Evidentiary Hearing 3 When a § 2255 motion is “based on alleged occurrences outside the 4 record,” a court can hold an evidentiary hearing. Shah v. United States, 878 5 F.2d 1156, 1158 (9th Cir. 1989) (collecting cases). See also United States v. 6 Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989) (when a § 2255 motion requires 7 a credibility determination only, no hearing is required). But the court need not 8 conduct an evidentiary hearing on an ineffective assistance of counsel claim 9 in the absence of an adequate showing of prejudice. See United States v. 10 Birtle, 792 F.2d 846, 849 (9th Cir. 1986) (no evidentiary hearing required 11 where all factual issues related to performance of counsel and prejudice prong 12 not met). 13 B. Ineffective Assistance of Counsel 14 Under 28 U.S.C. § 2255, a federal prisoner may move to vacate, set 15 aside, or correct a sentence on four grounds: (1) the sentence was imposed 16 in violation of the Constitution or laws of the United States; (2) the court lacked 17 jurisdiction to impose the sentence; (3) the sentence exceeded the maximum 18 authorized by law; or (4) the sentence is otherwise subject to collateral attack. 19 28 U.S.C. § 2255(a); United States v. Speelman, 431 F.3d 1226, 1230 n.2 (9th 20 Cir. 2005). The burden is on the prisoner to prove one or more of the four 21 bases for relief. 22 Here, Caceres must show that his counsel’s performance was deficient, 23 and the deficient performance prejudiced him. See Strickland v. Washington, 24 466 U.S. 668, 688–93 (1984). Under the performance prong of Strickland, the 25 focus is on whether counsel’s actions were within the range of competence 26 demanded of attorneys in criminal cases. Turner v. Calderon, 281 F.3d 851, 27 881 (9th Cir. 2002) (quoting McMann v. Richardson, 397 U.S. 759, 771 1 wide range of professional assistance.” Strickland, 466 U.S. at 689. Under 2 Strickland’s prejudice prong, a movant must “show that there is a reasonable 3 probability that, but for counsel’s unprofessional errors, the result of the 4 proceeding would have been different. A reasonable probability is a 5 probability sufficient to undermine confidence in the outcome.” Id. at 694. 6 In addition, a movant must demonstrate both deficient performance and 7 prejudice to establish ineffective assistance of counsel. Id. at 687; United 8 States v. Olson, 925 F.2d 1170, 1173 (9th Cir.1991). “Because failure to meet 9 either prong is fatal to [a defendant’s] claim, there is no requirement that 10 [courts] ‘address both components of the inquiry if the defendant makes an 11 insufficient showing on one.’” Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 12 2011) (quoting Strickland, 466 U.S. at 697). A court need not hold a hearing 13 to determine the validity of an ineffective assistance of counsel claim if “the 14 files and records of the case conclusively show that the prisoner is entitled to 15 no relief.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). 16 Caceres’s ineffective assistance claim has to do with the Safety Valve 17 provision of the Sentencing Guidelines. (Dkt. 56 at 9–15). He contends his 18 counsel was ineffective because he didn’t initiate Safety Valve discussions in 19 a timely manner, (id. at 10–11); didn’t promptly or effectively respond to the 20 Government's concerns about the truthfulness of Caceres’s proffer, (id. 21 at 11–12); and failed to request a continuance to attempt to cure the perceived 22 problems, (id. at 12–13). Caceres maintains his counsel’s deficient 23 performance prejudiced him. (Id. at 13–15). The Government counters that 24 Caceres can’t demonstrate ineffective assistance of counsel because the 25 record establishes that his defense counsel made timely and reasonable 26 decisions to facilitate the Safety Valve process and, regardless, counsel’s 27 alleged errors didn’t prejudice Caceres because he didn’t tell the truth during 1 Concerning Caceres’s claim that his lawyer was tardy in initiating Safety 2 Valve discussions, the Court finds that counsel properly arranged for Caceres 3 to participate in a debriefing before Caceres’s scheduled sentencing date. The 4 problem wasn’t with the timing of the debriefing. Instead, according to the 5 Government, the problem was Caceres didn’t tell the truth during the 6 debriefing. The record establishes that defense counsel met with Caceres 7 before the debriefing and emphasized the importance of proving truthful and 8 complete information. However, in contravention of his lawyer’s counsel, 9 Caceres lied about his involvement and otherwise provided untruthful and 10 incomplete information. After hearing argument from both the prosecutor and 11 Caceres’s counsel at sentencing, the Court agreed with adopted the 12 Government’s evaluation of Caceres’s statements and its recommendation 13 not to grant Safety Valve relief. (Dkt. 59 at 18). No action taken or not taken 14 by defense counsel informed the Court’s decision to deny Safety Valve. 15 Rather, the Court denied relief because it found that the prosecutor, credibly 16 and acting in good faith, had good reason to disbelieve Caceres’ account. 17 Caceres’s related claim that his counsel was deficient in not requesting 18 a further continuance of the sentencing hearing is also spurious. The Court 19 had previously granted a continuance to facilitate the Safety Valve debriefing 20 and stated it wouldn’t allow a further postponement of Caceres’s sentencing 21 absent extraordinary good cause.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 CASE NO. 20CR0245-LAB 10 LUIS MARROT CACERES,
11 Petitioner, ORDER DENYING MOTION TO 12 vs. SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. § 2255 13 UNITED STATES OF AMERICA, [Dkt. 56]
14 Respondent. 15 16 Luis Marrot Caceres moves to vacate or set aside his sentence under 17 28 U.S.C § 2255. (Dkt. 56). The United States opposes Caceres’s motion. 18 (Dkt. 59). Having carefully considered the pleadings, the Court DENIES the 19 motion. 20 I. BACKGROUND 21 In 2019, Caceres was arrested and charged with importing 22 methamphetamine and heroin into the United States in violation 28 U.S.C. 23 §§ 952 and 960. (Dkt. 56 at 3). On February 20, 2020, he pled guilty to both 24 charges. (Id.). The Court entered judgment and sentenced Caceres to a 120- 25 month term followed by five years of supervised release. (Dkt. 42). 26 II. QUESTION PRESENTED 27 Caceres contends he received ineffective assistance of counsel during 1 supplement the record. (Id. at 15). 2 A. Evidentiary Hearing 3 When a § 2255 motion is “based on alleged occurrences outside the 4 record,” a court can hold an evidentiary hearing. Shah v. United States, 878 5 F.2d 1156, 1158 (9th Cir. 1989) (collecting cases). See also United States v. 6 Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989) (when a § 2255 motion requires 7 a credibility determination only, no hearing is required). But the court need not 8 conduct an evidentiary hearing on an ineffective assistance of counsel claim 9 in the absence of an adequate showing of prejudice. See United States v. 10 Birtle, 792 F.2d 846, 849 (9th Cir. 1986) (no evidentiary hearing required 11 where all factual issues related to performance of counsel and prejudice prong 12 not met). 13 B. Ineffective Assistance of Counsel 14 Under 28 U.S.C. § 2255, a federal prisoner may move to vacate, set 15 aside, or correct a sentence on four grounds: (1) the sentence was imposed 16 in violation of the Constitution or laws of the United States; (2) the court lacked 17 jurisdiction to impose the sentence; (3) the sentence exceeded the maximum 18 authorized by law; or (4) the sentence is otherwise subject to collateral attack. 19 28 U.S.C. § 2255(a); United States v. Speelman, 431 F.3d 1226, 1230 n.2 (9th 20 Cir. 2005). The burden is on the prisoner to prove one or more of the four 21 bases for relief. 22 Here, Caceres must show that his counsel’s performance was deficient, 23 and the deficient performance prejudiced him. See Strickland v. Washington, 24 466 U.S. 668, 688–93 (1984). Under the performance prong of Strickland, the 25 focus is on whether counsel’s actions were within the range of competence 26 demanded of attorneys in criminal cases. Turner v. Calderon, 281 F.3d 851, 27 881 (9th Cir. 2002) (quoting McMann v. Richardson, 397 U.S. 759, 771 1 wide range of professional assistance.” Strickland, 466 U.S. at 689. Under 2 Strickland’s prejudice prong, a movant must “show that there is a reasonable 3 probability that, but for counsel’s unprofessional errors, the result of the 4 proceeding would have been different. A reasonable probability is a 5 probability sufficient to undermine confidence in the outcome.” Id. at 694. 6 In addition, a movant must demonstrate both deficient performance and 7 prejudice to establish ineffective assistance of counsel. Id. at 687; United 8 States v. Olson, 925 F.2d 1170, 1173 (9th Cir.1991). “Because failure to meet 9 either prong is fatal to [a defendant’s] claim, there is no requirement that 10 [courts] ‘address both components of the inquiry if the defendant makes an 11 insufficient showing on one.’” Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 12 2011) (quoting Strickland, 466 U.S. at 697). A court need not hold a hearing 13 to determine the validity of an ineffective assistance of counsel claim if “the 14 files and records of the case conclusively show that the prisoner is entitled to 15 no relief.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). 16 Caceres’s ineffective assistance claim has to do with the Safety Valve 17 provision of the Sentencing Guidelines. (Dkt. 56 at 9–15). He contends his 18 counsel was ineffective because he didn’t initiate Safety Valve discussions in 19 a timely manner, (id. at 10–11); didn’t promptly or effectively respond to the 20 Government's concerns about the truthfulness of Caceres’s proffer, (id. 21 at 11–12); and failed to request a continuance to attempt to cure the perceived 22 problems, (id. at 12–13). Caceres maintains his counsel’s deficient 23 performance prejudiced him. (Id. at 13–15). The Government counters that 24 Caceres can’t demonstrate ineffective assistance of counsel because the 25 record establishes that his defense counsel made timely and reasonable 26 decisions to facilitate the Safety Valve process and, regardless, counsel’s 27 alleged errors didn’t prejudice Caceres because he didn’t tell the truth during 1 Concerning Caceres’s claim that his lawyer was tardy in initiating Safety 2 Valve discussions, the Court finds that counsel properly arranged for Caceres 3 to participate in a debriefing before Caceres’s scheduled sentencing date. The 4 problem wasn’t with the timing of the debriefing. Instead, according to the 5 Government, the problem was Caceres didn’t tell the truth during the 6 debriefing. The record establishes that defense counsel met with Caceres 7 before the debriefing and emphasized the importance of proving truthful and 8 complete information. However, in contravention of his lawyer’s counsel, 9 Caceres lied about his involvement and otherwise provided untruthful and 10 incomplete information. After hearing argument from both the prosecutor and 11 Caceres’s counsel at sentencing, the Court agreed with adopted the 12 Government’s evaluation of Caceres’s statements and its recommendation 13 not to grant Safety Valve relief. (Dkt. 59 at 18). No action taken or not taken 14 by defense counsel informed the Court’s decision to deny Safety Valve. 15 Rather, the Court denied relief because it found that the prosecutor, credibly 16 and acting in good faith, had good reason to disbelieve Caceres’ account. 17 Caceres’s related claim that his counsel was deficient in not requesting 18 a further continuance of the sentencing hearing is also spurious. The Court 19 had previously granted a continuance to facilitate the Safety Valve debriefing 20 and stated it wouldn’t allow a further postponement of Caceres’s sentencing 21 absent extraordinary good cause. Caceres’s prevarications during his 22 debriefing didn’t create good cause for a “do-over” or provide justification for 23 the Court to grant a second continuance of his sentencing hearing. No 24 provision of the Guidelines, nor any case law of which the Court is aware, 25 entitles a defendant who deliberately lies during a Safety Valve debriefing to 26 a “second bite of the apple.” 27 No evidentiary hearing is necessary here because Caceres hasn’t 1 || Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982); Ortiz v. Stewart, 2 || 149 F.3d 923, 934 (9th Cir. 1998) (no abuse of discretion for district court to 3 || deny an evidentiary hearing if movant doesn’t establish a colorable claim for 4 ||relief for ineffective assistance). To the contrary, Caceres has failed to 5 || plausibly allege that his defense counsel's performance fell below an objective 6 || standard of reasonableness. Separately, Caceres has not established that he 7 was prejudiced by any action of his counsel — the outcome he complains of 8 || was entirely of his own doing. 9 His motion is DENIED. 10 lll. CERTIFICATE OF APPEALABILITY 11 A certificate of appealability is authorized “only if the applicant has made 12 ||a substantial showing of the denial of a constitutional right.” 28 U.S.C. 13 || § 2253(c)(2). To make such a showing, a movant must show that “jurists of 14 || reason could disagree with the district court’s resolution of his constitutional 15 || claims or that jurists could conclude the issues presented are adequate to 16 || deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 17 || 322, 327 (2003). Having thoroughly reviewed the matter, the Court finds that 18 || Caceres hasn't made — and cannot make — the required showing. A certificate 19 || of appealability is DENIED. 20 || IV. CONCLUSION 21 Caceres’s motion, to vacate, set aside, or correct sentence under 28 22 ||U.S.C. § 2255 is DENIED. His request for a certificate of appealability is 23 || likewise DENIED. 24 IT IS SO ORDERED. law Au 26 || Dated: May 26, 2023 dof A my 27 HON. LARRY ALAN BURNS 38 United States District Judge