Hernandez v. United States

• Court: District Court, S.D. California
• Decided: October 30, 2024
• Docket: 3:23-cv-01319
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE JESUS HERNANDEZ, JR. Case Nos.: 23-cv-01319-AJB; Petitioner, 22-cr-00262-AJB 12

13 v. ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE, 14 UNITED STATES OF AMERICA, OR CORRECT SENTENCE UNDER 15 Respondent. 28 U.S.C. § 2255

16 (Doc. Nos. 1; 28) 17 18 Before the Court is Petitioner Jose Jesus Hernandez, Jr.’s (“Petitioner”) Motion to 19 Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“Motion”), alleging 20 ineffective assistance of counsel by his attorney, Antonio F. Yoon. (Doc. No. 28.)1 21 Respondent the United States (the “Government”) filed an opposition (Doc. No. 38), to 22 which Petitioner replied (Doc. No. 502). Having reviewed the parties’ briefs and all relevant 23 24 1 The instant Motion is filed in both Petitioner’s civil case and the underlying criminal case. 25 (Compare Doc. No. 1, Hernandez v. United States, No. 23-cv-01319-AJB (S.D. Cal.) with Doc. No. 28, United States v. Hernandez, No. 22-cr-00262-AJB-1 (S.D. Cal.).) Hereafter, all docket entries refer those 26 in Petitioner’s criminal case unless otherwise specified. 2 Petitioner’s reply was due to the Court by October 23, 2023 (Doc. No. 40); however, on February 27 26, 2024, Petitioner filed a letter requesting the status of his reply (Doc. No. 44). The Court ordered the Government to respond. (Doc. No. 46.) The Government then filed a status report stating it could not find 28 1 filings, and for the reasons set forth below, the Court DENIES Petitioner’s Motion. 2 I. BACKGROUND 3 On November 17, 2020, Petitioner was arrested at the San Ysidro Port of Entry in 4 San Diego, California, when law enforcement found methamphetamine and fentanyl 5 concealed in the vehicle Petitioner was driving. (Doc. No. 38 at 13; see also Doc. No. 1, 6 USA v. Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Nov. 18, 2020).) On 7 November 18, 2020, Petitioner made his initial appearance before then Magistrate Judge 8 Andrew G. Schopler, and Judge Schopler appointed Mr. Yoon to represent Petitioner. 9 (Doc. No. 4, USA v. Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Nov. 18, 2020).) 10 On February 18, 2021, Petitioner waived indictment before Magistrate Judge 11 Mitchell D. Dembin, and a two-count information was filed, charging Petitioner with 12 Importation of Methamphetamine and Fentanyl in violation of 21 U.S.C. §§ 952 and 960. 13 (Doc. Nos. 43, 44, USA v. Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Feb. 18, 14 2021).) Petitioner was arraigned and a not guilty plea entered. (Doc. No. 44, USA v. 15 Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Feb. 18, 2021).) A Motion in Limine 16 Hearing was held by the Court on January 31, 2022, and a jury trial was set for March 8, 17 2022. (Doc. No. 110, USA v. Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Jan. 31, 18 2022).) 19 Just over a week later, on February 8, 2022, a separate three-count indictment was 20 filed in this District charging Petitioner with Conspiracy to Import and with Importation of 21 Methamphetamine and Fentanyl, in violation of 21 U.S.C. §§ 952, 960, and 963, all as 22 Class A felonies. (Doc. No. 1.) On February 10, 2022, Magistrate Judge Skomal, on oral 23 motion of the Government, dismissed the related first-filed case without prejudice and 24 25 No. 47.) In light of the discrepancy, the Court permitted Petitioner additional time to file a reply. (Doc. 26 No. 48.) Petitioner then filed two replies: one with a preface addressing the filing issue (Doc. No. 49), and one consisting only of the reply (Doc. No. 50). Upon the Court’s review, the replies are substantively 27 identical with the latter having only a few typographical differences. As such, all citations to Petitioner’s reply hereafter are to the later filed document (Doc. No. 50). 28 1 arraigned Petitioner on the newly-filed indictment. (See Doc. No. 6; Doc. Nos. 113–15, 2 USA v. Hernandez et al., No. 21-cr-00279-AJB-1 (S.D. Cal. Feb. 10, 2022).) Petitioner 3 pleaded not guilty at arraignment. (Doc. No. 6.) 4 On February 22, 2022, Petitioner waived prosecution by indictment (Doc. No. 38-2 5 at 5:5–24), and a two-count superseding information was filed, charging Petitioner with 6 Importation of Methamphetamine and Fentanyl in violation of 21 U.S.C. §§ 952 and 960, 7 both as Class B felonies (Doc. No. 15). After being arraigned, Petitioner then pleaded guilty 8 to both counts as charged in the superseding information under a plea agreement with the 9 Government. (Doc. Nos. 16; 17.) 10 Prior to accepting Petitioner’s guilty plea, the Court confirmed that Petitioner was 11 in good health such that he could understand the proceedings and was not under the 12 influence of any medication, drugs, or alcohol that would impact his ability to understand 13 the proceedings. (Doc. No. 38-2 at 4:21–5:4.) The Court informed Petitioner of the 14 mandatory minimum and potential maximums with regard to prison time, supervised 15 release, and assessed fines, all of which Petitioner confirmed he understood. (Id. at 9:23– 16 12:4.) The Court confirmed that Petitioner had spoken with Mr. Yoon “about the 17 sentencing guidelines and how they might apply.” (Id. at 11:4–6.) When asked if he had 18 any questions about potential sentencing, Petitioner declined. (Id. at 12:5–9.) The Court 19 further confirmed that Petitioner had read the plea agreement completely, discussed it 20 thoroughly with Mr. Yoon, and had all of his questions answered. (Id. at 12:10–13:8.) 21 On July 18, 2022, this Court held a sentencing hearing, at which Mr. Yoon argued 22 for a 60-month sentence, while the Government proposed a 240-month sentence. (See Doc. 23 Nos. 22; 23; 38-3.) Considering the parties’ arguments, statutory factors, the applicable 24 sentencing guidelines, and the specific history and characteristics of Petitioner, the Court 25 sentenced Petitioner to 151 months of imprisonment and supervised release for four years, 26 with each count to run concurrently. (Doc. Nos. 25; 26.) 27 On July 17, 2023, Petitioner timely filed the instant § 2255 habeas Motion. (Doc. 28 No. 28.) 1 II. LEGAL STANDARD 2 A federal prisoner in custody under a sentence of a court may move to vacate, set 3 aside, or correct the sentence “upon the ground that the sentence was imposed in violation 4 of the Constitution or laws of the United States, or that the court was without jurisdiction 5 to impose such sentence, or that the sentence was in excess of the maximum authorized by 6 law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). To warrant relief 7 under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise 8 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 9 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 10 Timmreck, 441 U.S. 780, 783 (1979). If it is clear a petitioner has failed to state a claim, or 11 has “no more than conclusory allegations, unsupported by facts and refuted by the record,” 12 a district court may deny a § 2255 motion without an evidentiary hearing. United States v. 13 Quan, 789 F.2d 711, 715 (9th Cir. 1986). 14 III. DISCUSSION 15 A. Petitioner’s Ineffective Assistance of Counsel Claims 16 In the instant Motion, Petitioner asserts three violations of his Sixth Amendment 17 right to effective assistance of counsel, all centering around Mr. Yoon’s presentation of 18 plea offers to Petitioner.4 (Doc. No. 28 at 4–6.) 19 1. Legal Standard 20 “Defendants have a Sixth Amendment right to counsel, a right that extends to the 21 plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). “[T]he two-part 22 Strickland v. Washington test applies to challenges to guilty pleas based on ineffective 23 assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985) (referencing Strickland v. 24 Washington, 466 U.S. 668 (1984)). To prevail on a claim of ineffective assistance of 25

26 4 The instant Motion identifies two different pleas Petitioner asserts the Government offered. (See 27 generally Doc. Nos. 28; 50.) For clarity, the Court will analyze Petitioner’s claims chronologically, first addressing the claims stemming from the alleged first plea offer (Grounds 2 and 3) and second addressing 28 1 counsel, a petitioner must show that (1) counsel’s representation was deficient such that it 2 “fell below an objective standard of reasonableness,” and (2) counsel’s deficient 3 performance prejudiced the petitioner such that “there is a reasonable probability that, but 4 for counsel’s unprofessional errors, the result of the proceeding would have been 5 different.” Strickland, 466 U.S. at 687–88, 694. “In the context of pleas[,] a defendant must 6 show the outcome of the plea process would have been different with competent advice.” 7 Lafler, 566 U.S. at 163. 8 The first prong of the Strickland test requires a showing that “counsel made errors 9 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 10 the Sixth Amendment.” Strickland, 466 U.S. at 687. “The reasonableness of counsel’s 11 performance is to be evaluated from counsel’s perspective at the time of the alleged error 12 and in light of all the circumstances, and the standard of review is highly deferential.” 13 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see also Strickland, 466 U.S. at 689 14 (noting there is “a strong presumption that counsel’s conduct falls within the wide range 15 of reasonable professional assistance”). 16 The second prong requires a showing “that there is a reasonable probability that, but 17 for counsel’s unprofessional errors, the result of the proceeding would have been 18 different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient 19 to undermine confidence in the outcome.” Id. In the context of an accepted guilty plea, “the 20 defendant must show that there is a reasonable probability that, but for counsel’s errors, he 21 would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 22 59. Where the plea offer was rejected, “a defendant must show that but for the ineffective 23 advice of counsel there is a reasonable probability that the plea offer would have been 24 presented to the court (i.e., that the defendant would have accepted the plea and the 25 prosecution would not have withdrawn it in light of intervening circumstances), that the 26 court would have accepted its terms, and that the conviction or sentence, or both, under the 27 offer’s terms would have been less severe than under the judgment and sentence that in 28 fact were imposed.” Lafler, 566 U.S. at 164. 1 Unless the petitioner can make a showing for both Strickland prongs, “it cannot be 2 said that the conviction . . . resulted from a breakdown in the adversary process[.]” 3 Strickland, 466 U.S. at 687. 4 2. Alleged Coercion Regarding First Plea Offer (Grounds 2 and 3) 5 Petitioner claims he “was coerce[d] and advi[sed] not to take the first plea agreement 6 of unlawful disregard charge” because “it was not a definite sentence but an open 7 plea . . . .” (Doc. No. 28 at 5–6.) However, Petitioner argues that the first plea offer “was a 8 lesser offense level [so he] would [have] been sentenced to lesser time” (id. at 6) and it 9 would “not [have] effect[ed] First Step Act [(“FSA”)] credit eligibility” (id. at 5).5 10 According to Petitioner, the Government offered Petitioner two different plea offers. 11 (See Doc. Nos. 28; 50.) First, the Government offered Petitioner a “plea agreement of 12 unlawful disregard.” (Doc. Nos. 28 at 5; 50 at 1–2.) However, Petitioner explains he did 13 not accept this plea offer because of how Mr. Yoon presented it: 14 When Mr. Yoon presented this plea agreement he caused fear in me stating (1) that he felt it was not a good plea agreement because it was an open plea 15 of 0–20 years and (2) that he felt that the government would be giving me the 16 higher end 20 years and (3) that with my criminal history I would be sentenced as a career offender and (4) [h]e even stated that it was a lower offense level 17 by 2 or 3 points but that it didn’t matter because of my criminal history the 18 outcome would be the same. Mr. Yoon used this fear and coerced me, and misadvised me not to take this plea agreement. 19 20 (Id.) About one week after Petitioner rejected the first plea offer, on February 8, 2022, the 21 Government filed the indictment charging him with an additional count of conspiracy to 22 import methamphetamine and fentanyl. (Id. at 1.) 23

24 25 5 The First Step Act of 2018 implemented various prison and sentencing reforms, including a directive to establish evidence-based recidivism reduction programs and incentives for inmates to 26 participate in anti-recidivism programs. Pub. L. No. 115-391, 132 Stat. 5194 (2018). Under the First Step Act, eligible prisoners may earn time credits for “successfully complet[ing] evidence-based recidivism 27 reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A). However, prisoners serving sentences for conviction of certain offenses are statutorily ineligible for such credits. 18 U.S.C. § 28 1 In its opposition, the Government counters that “[t]he only plea offers made by the 2 United States in this case were offers to plead to the importation of fentanyl and 3 methamphetamine (or the conspiracy to import these drugs).” (Doc. No. 38 at 5.) Mr. Yoon 4 submitted a declaration averring the same. (Doc. No. 38-1 ¶ 7 (“Mr. Hernandez’s motion 5 refers to an ‘unlawful disregard’ plea offer. I do not know what that means. The only plea 6 offers the government made were for Mr. Hernandez to plead to importation and/or 7 conspiracy to import.”).) 8 As with Mr. Yoon and the Government, the Court is not aware of an “unlawful 9 disregard” offense to which Petitioner could have pleaded. Further, liberally construing 10 Petitioner’s Motion in light of his pro se status, the Court cannot independently ascertain 11 an offense to which Petitioner could have pleaded that fits his allegations. As such, 12 Petitioner fails to demonstrate that there was any probability, let alone a reasonable one, 13 that the Court would have confirmed such a plea agreement had it been accepted by 14 Petitioner and presented to the Court. Cf. Lafler, 566 U.S. at 164. 15 Accordingly, the Court DENIES the instant Motion with regard to allegations that 16 Mr. Yoon coerced Petitioner into rejecting a prior, more favorable plea offer. 17 2. Alleged Coercion Regarding the Plea Agreement (Ground 1) 18 Petitioner asserts he was “coerce[d]” by Mr. Yoon into taking the plea agreement 19 based on “misleading or misrepresentation regarding [his] First Step Act (F.S.A.) credit 20 eligibility . . . .” (Doc. No. 28 at 4.) Specifically, Petitioner states that the Bureau of Prisons 21 (the “BOP”) labeled him “ineligible.” (Id.) Petitioner provides no further facts regarding 22 his conclusion of coercion in either the instant Motion or his reply. “Conclusory allegations 23 which are not supported by a statement of specific facts do not warrant habeas relief.” 24 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 25 Moreover, his allegations of coercion are belied by the Change of Plea Hearing, 26 wherein the Court questioned Petitioner extensively regarding the plea agreement. 27 Petitioner averred that he had read the agreement completely, thoroughly discussed it with 28 Mr. Yoon who answered all his questions, and was not promised anything, threatened by 1 anyone, nor rushed or hurried in making his decision to plead guilty. (Doc. No. 38-2 at 2 12:9–13:9, 16:8–25.) “These ‘solemn declarations in open court carry a strong presumption 3 of verity.’” Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (quoting Blackledge 4 v. Allison, 431 U.S. 63, 74 (1977)). 5 Accordingly, the Court DENIES the instant Motion with regard to allegations Mr. 6 Yoon coerced Petitioner into taking the plea agreement. 7 3. Alleged Misrepresentation or Misleading Advice (Ground 1) 8 Petitioner asserts that Mr. Yoon or Mr. Yoon’s investigator drafted a set of 9 calculations that appear to reflect sentencing estimates that account for reductions due to 10 “good time,” “time served,” “RDAP,” and “1/2 way house.” (Doc. Nos 28 at 12; 50 at 2– 11 3.) Mr. Yoon allegedly handed this paper to Petitioner “tell[ing him] that this is what 12 [Petitioner] had to expect if [he] got sentenced to 5[,] 6[,] 7[, or] 8 years.” (Doc. No. 50 at 13 2–3.) However, Petitioner states that the BOP has marked him ineligible for FSA credits 14 (Doc. No. 28 at 4), which has had a “huge adverse effect” on Petitioner as he cannot reduce 15 his sentence through the earning of FSA credits.7 (Doc. No. 50 at 3.) 16 Mr. Yoon counters that “[i]t is [his] understanding that [his] investigator prepared 17

18 6 Petitioner’s reply indicates he may have a concern regarding his competence at the Plea Hearing. 19 (Doc. No. 50 at 2 (“. . . I do have my full sobriety[.] I am far more competent mentally and emotionally th[a]n I was when I was present in your court room.”).) “When analyzing competence to plead guilty, we 20 look to whether a defendant has the ability to make a reasoned choice among the alternatives presented to 21 him.” United States v. Howard, 381 F.3d 873, 878 (9th Cir. 2004) (quoting Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.1997)). Where a petitioner makes “bald, conclusory or inherently incredible 22 assertions” of incompetence to plead guilty due to drug use “a district court has the discretion to dismiss the petition without a hearing.” Howard, 381 F.3d at 879. Here, Petitioner only raises the specter of 23 incompetence by referencing his comparative sobriety. Such references alone are insufficient to challenge Petitioner’s guilty plea on the ground of competence. In contrast, Petitioner testified at the Plea Hearing 24 to being in good health such that he could understand the proceedings and not under the influence of any 25 medication, drugs, or alcohol that would impact his ability to understand the proceedings. (Doc. No. 38-2 at 4:21–5:4.) Moreover, at the Sentencing Hearing five months after the Plea Hearing, Petitioner read 26 letters to the Court asserting he was currently 20 months sober. (Doc. No. 38-3 at 19:1–5.) 7 The Court notes that Petitioner argues that Mr. Yoon failed to properly advise him that accepting 27 the plea offer would make him FSA credit ineligible, while also arguing that he was incorrectly deemed ineligible. Considering Petitioner’s pro se status, the Court addresses each argument in turn on its own 28 1 those calculations for Mr. Hernandez,” but not at Mr. Yoon’s request. (Doc. No. 38-1 ¶ 5.) 2 Mr. Yoon states he neither prepared nor asked another to prepare the calculation sheet. (Id.) 3 Finally, Mr. Yoon avers that he has no record or recollection of advising Petitioner about 4 his eligibility for FSA credit, either independently or upon Petitioner’s inquiry. (Id. ¶ 4.) 5 First, the Court turns to whether Mr. Yoon’s alleged conduct, or lack of conduct, 6 falls below the objective standard of reasonableness. Assuming Petitioner’s factual 7 allegations are correct—that either Mr. Yoon or his investigator drafted the document— 8 calculations demonstrating potential impact of programs and credits that may reduce 9 different possible sentences are not objectively unreasonable under the instant 10 circumstances. Sentence reduction through programs and credits depends on a myriad of 11 factors, including program availability, the BOP’s assessment of Petitioner’s risk levels, 12 and Petitioner’s actions, behavior, and performance. Petitioner does not allege that Mr. 13 Yoon promised, guaranteed, or otherwise advised Petitioner that he would actually receive 14 those reductions. In fact, the existence of four sets of calculations, each based on a different 15 sentence, underscore their speculative nature. Although the calculations reflect sentences 16 lower than that which Petitioner received, the lowest calculation was for a 60-month 17 sentence—the minimum Petitioner could receive and the sentence for which Mr. Yoon 18 argued. As such, even assuming Petitioner’s allegations to be true, the Court does not find 19 such calculations to be a gross mischaracterization or patently erroneous advice. See 20 Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (“Erroneous predictions 21 regarding a sentence are deficient only if they constitute gross mischaracterization of the 22 likely outcome of a plea bargain combined with erroneous advice on the probable effects 23 of going to trial.”) (cleaned up). 24 Further, the Court does not find that failing to independently inform Petitioner 25 regarding the impact of his guilty plea on his FSA eligibility is objectively unreasonable. 26 See Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (“[Counsel’s f]ailure to advise [the 27 defendant] of a collateral penalty cannot be held to be below an objective standard of 28 1 reasonableness.”). 2 Second, even if the Court were to find that the alleged conduct fell below an 3 objective standard of reasonableness, providing Petitioner with such calculations was not 4 prejudicial under the second Strickland prong. See Gonzalez v. United States, 33 F.3d 1047, 5 1051–52 (9th Cir. 1994) (finding the defendant not prejudiced by “alleged gross error in 6 calculating the sentencing guidelines range and likely sentence” where the defendant was 7 informed of the maximum possible sentences and fines and responded affirmatively when 8 asked if satisfied with counsel). Here, before taking Petitioner’s plea, the Court informed 9 Petitioner of the mandatory minimum and potential maximums with regard to prison time, 10 supervised release, and assessed fines, all of which Petitioner confirmed he understood. 11 (Doc. No. 38-2 at 9:23–10:6, 11:17–12:4.) The Court confirmed that Petitioner had spoken 12 with Mr. Yoon “about the sentencing guidelines and how they might apply.” (Id. at 11:4– 13 6.) When asked if he had any questions about potential sentencing, Petitioner declined. (Id. 14 at 12:5–9.) Because Petitioner was informed of the potential maximums he could face at 15 sentencing, he was not prejudiced by being provided incorrect potential calculations. 16 Additionally, Petitioner does not assert that, had counsel accurately advised him of 17 the effect of his guilty plea on FSA credit eligibility, he would have rejected the plea offer 18 and insisted on going to trial. See Hill, 474 U.S. at 59. Nor did Petitioner allege any special 19 circumstances that might support the conclusion that he placed particular emphasis on his 20 FSA credit eligibility in deciding whether to plead guilty. See id. Moreover, if Petitioner 21 had not accepted the plea agreement, he would have faced a three-count indictment where 22 each count carried a term of imprisonment of ten years to life. (Doc. No. 38 at 1–2.) As 23

24 25 8 In its opposition, the Government asserts that “Mr. Yoon could not have been grossly incompetent in failing to advise [Petitioner] about FSA time credit when [Mr. Yoon] was never asked for his advice.” 26 (Doc. No. 38 at 11.) Although the Court arrives at the same conclusion as the Government regarding the first Strickland prong, the Court notes that the Government’s argument is conclusory and overstated. Read 27 broadly, the Government is implying that an attorney has no affirmative duty to advise a defendant, which is incorrect. Read narrowly, the Government relies on an unstated assumption that a reasonably competent 28 1 such, the Court finds no evidence suggesting Petitioner wanted to go or would have insisted 2 on going to trial but for Mr. Yoon’s purported deficiency. See United States v. Silveira, 3 997 F.3d 911, 916 (9th Cir. 2021) (acknowledging it was “simply . . . not plausible” that 4 the defendant would have insisted on going to trial, in part because he would have faced a 5 longer sentence had he gone to trial). 6 Accordingly, the Court DENIES the instant Motion with regard to allegations Mr. 7 Yoon provided constitutionally deficient advice regarding the plea agreement Petitioner 8 accepted. 9 4. Alleged Errors Related to FSA Eligibility 10 Petitioner also claims error regarding the BOP’s clerical recording of Petitioner’s 11 FSA eligibility. (See Doc. Nos. 28 at 4; 50 at 3–4.) Petitioner represents that the BOP 12 originally labeled Petitioner as FSA ineligible pursuant to 18 U.S.C. § 3632(d)(4)(lxvi)– 13 (lxvii).9 (Doc. No. 50 at 4.) Petitioner argues that was error because 18 U.S.C. § 14 3632(d)(4)(lxvi) was “unlawfully applied” to “unlawfully determine [him] to be statutorily 15 ineligible.” (Id.) However, Petitioner also asserts his case manager informed him that, a 16 week prior to filing his reply, it was determined that the BOP had erred in marking him 17 ineligible because he did not have a leadership role and subparagraph lxviii,10 not 18

19 9 Subparagraph lxvii of 18 U.S.C. 3632(d)(4)(D) deems ineligible prisoners serving a sentence for 20 conviction pursuant to 21 U.S.C. 960(b) of “manufacturing, distributing, dispensing, or possessing with 21 intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, if the 22 sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing 23 Commission.” 18 U.S.C. 3632(d)(4)(D)(lxvii) (emphasis added). Subparagraph lxvi deems ineligible prisoners serving a sentence for conviction of “manufacturing, distributing, dispensing, or possessing with 24 intent to manufacture, distribute, or dispense, a mixture or substance containing a detectable amount of 25 N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide[—commonly known as fentanyl—]or any analogue thereof” under 21 U.S.C. 960(b)), with no leadership role requirement. 18 U.S.C. 26 3632(d)(4)(D)(lxvi). 10 Subparagraph lxviii deems FSA ineligible a prisoner convicted pursuant to 21 U.S.C. 960(b) of 27 “manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, or knowingly importing or exporting a controlled substance, if the sentencing court 28 1 subparagraph lxvi, applies. (Doc. No. 50 at 3–4.) Petitioner states that he is now “awaiting 2 the new composition sheet establishing that [he is] FSA eligible.” (Id. at 4.) 3 Taking Petitioner’s assertions as true, any complaint Petitioner had as to his 4 ineligibility became moot when rectified by the BOP. See U.S. CONST. art. III, § 2, cl. 1; 5 see also United States v. Livar, 108 F.4th 738, 742 (9th Cir. 2024) (“A case becomes moot 6 when it no longer satisfies the case-or-controversy requirement of the Constitution, which 7 demands that the parties continue to have a personal stake in the outcome of the lawsuit.”) 8 (internal quotation marks and citation omitted). If Petitioner believes a further error with 9 the BOP’s application of statutory eligibility remains, then such a claim is not appropriately 10 brought as an ineffective assistance of counsel claim under § 2255. See Pinson v. Carvajal, 11 69 F.4th 1059, 1066 (9th Cir. 2023), cert. denied sub nom. Sands v. Bradley, 144 S. Ct. 12 1382 (2024) (“[M]otions to contest the legality of a sentence must be filed under § 2255 in 13 the sentencing court, while petitions that challenge the manner, location, or conditions of 14 a sentence’s execution must be brought pursuant to § 2241 in the custodial court.”). 15 To the extent, Petitioner is claiming that Mr. Yoon provided ineffective assistance 16 of counsel because he did not “ma[k]e any effort to properly address this [alleged] error 17 concerning [his] FSA eligibility” (Doc. No. 50 at 4), such a claim is meritless because Mr. 18 Yoon’s representation of Petitioner ended with sentencing, only after which the BOP’s 19 alleged error could have occurred. 20 Accordingly, the Court DENIES the instant Motion with regard to alleged errors in 21 his FSA eligibility. 22 IV. APPOINTMENT OF COUNSEL & EVIDENTIARY HEARING 23 In his reply, Petitioner requests that the Court appoint counsel. (Doc. No. 50 at 3.) 24 “[T]he protections of the Sixth Amendment right to counsel do not extend to either state 25 26 27 any analogue thereof; and (II) the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing 28 1 collateral proceedings or federal habeas corpus proceedings.” Bonin v. Vasquez, 999 F.2d 2 425, 430 (9th Cir. 1993). However, the Court may provide a financially eligible § 2255 3 petitioner with representation when “the interests of justice so require . . . .” 18 U.S.C. § 4 3006A(a)(2)(B). “Unless an evidentiary hearing is required, the decision to appoint counsel 5 is within the discretion of the district court.” Knaubert v. Goldsmith, 791 F.2d 722, 728 6 (9th Cir. 1986); cf. R. 8(c), Rules Governing Section 2255 Proceedings (“If an evidentiary 7 hearing is warranted, the judge must appoint an attorney to represent a moving party who 8 qualifies to have counsel appointed under 18 U.S.C. § 3006A.”). 9 A district court must hold an evidentiary hearing before denying a § 2255 motion, 10 unless it is conclusively shown that the petitioner is entitled to no relief. 28 U.S.C. § 11 2255(b); see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (“Summary 12 dismissal is appropriate only where the allegations in the petition are ‘vague or conclusory’ 13 or ‘palpably incredible,’ or ‘patently frivolous or false.’”) (quoting Allison, 431 U.S. at 75– 14 76). However, if it is clear the petitioner has failed to state a claim, or has “no more than 15 conclusory allegations, unsupported by facts and refuted by the record,” a district court 16 may deny a § 2255 motion without an evidentiary hearing. Quan, 789 F.2d at 715. As 17 discussed above, the Court finds that Petitioner has failed to state a claim on all grounds. 18 The Court finds that an evidentiary hearing is not required and, accordingly, DENIES 19 Petitioner’s request for appointment of counsel. 20 V. CERTIFICATE OF APPEALABILITY 21 Lastly, “[u]nder the Antiterrorism and Effective Death Penalty Act of 1996, there 22 can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge 23 issues a certificate of appealability.” Welch v. United States, 578 U.S. 120, 127 (2016) 24 (citing 28 U.S.C. § 2253(c)(1)). A court may issue a certificate of appealability “only if the 25 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 26 § 2253(c)(2). “That standard is met when ‘reasonable jurists could debate whether (or, for 27 that matter, agree that) the petition should have been resolved in a different manner.’” 28 Welch, 578 U.S. at 127 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). l Having reviewed the record, the Court finds that no reasonable jurist would dispute 2 ||that Mr. Yoon’s challenged performance fell within the “wide range of reasonable 3 || professional assistance.” See Strickland, 466 U.S. at 689. The Court therefore DENIES a 4 certificate of appealability. 5 CONCLUSION 6 After careful consideration, the Court finds that Petitioner’s Motion, the briefs filed 7 ||in opposition thereto and support thereof, and the record as a whole “conclusively show 8 ||that [Petitioner] is entitled to no relief.” 28 U.S.C. § 2255(b). Accordingly, the Court 9 || DENIES Petitioner’s Motion to vacate, set aside, or correct his sentence pursuant to 28 10 U.S.C. § 2255, DENIES Petitioner’s request to appoint counsel, and DENIES a certificate 11 || of appealability because Petitioner has not “made a substantial showing of the denial of a 12 || constitutional right.” See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is instructed to 13 |/enter judgment in both the underlying criminal case and Petitioner’s civil case and close 14 || Petitioner’s civil case. 15 IT IS SO ORDERED. 16 Dated: October 28, 2024 © ¢ 7 Hon. Anthony J.Battaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 14