Knopping v. United States

• Court: District Court, S.D. California
• Decided: April 12, 2024
• Docket: 3:22-cv-01132
• Status: Unknown

Opinion

1 2 3

9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ROBERT WILLIAM KNOPPING, CASE NO. 18-cr-4451-LAB 22-cv-1132-LAB Petitioner, 13 14 vs. ORDER:

15 UNITED STATES OF AMERICA, (1) GRANTING MOTION TO 16 Respondent. FILE REPLY, [Dkt. 77]; and

17 (2) DENYING MOTION TO SET 18 ASIDE SENTENCE UNDER 28 U.S.C. § 2255, [Dkt. 72] 19 20 Petitioner Robert William Knopping moves to vacate or set aside his 21 sentence under 28 U.S.C § 2255. (Dkt. 72).1 The Government opposes 22 Knopping’s motion. (Dkt. 79, 83). Having carefully considered the parties’ 23 briefing and evidence, the Court DENIES the motion. 24 // 25 // 26 27 1 Page numbers cited in this Order refer to those imprinted by the Court’s 1 I. BACKGROUND AND STATEMENT OF FACTS 2 On September 17, 2018, Knopping attempted to enter the United States 3 from Mexico, but he was stopped at the San Ysidro Port of Entry and asked 4 where he was headed. (Dkt. 1 at 2). During an inspection of Knopping’s 5 vehicle, border guards smelled fuel coming from inside the vehicle, noticed 6 evidence of tampering with the fuel tank, and sent the vehicle through a 7 scanning machine that showed anomalies in the fuel tank. (Id.). The vehicle 8 was then sent to secondary inspection where the fuel pump cover was 9 removed revealing thirty wrapped packages. (Id. at 2–3). All thirty packages 10 contained methamphetamine. (Id. at 3). 11 Knopping was arrested, given Miranda warnings, and waived them. (See 12 id.; Dkt. 89-3). He admitted he knew the vehicle contained drugs, and also 13 admitted that he had successfully smuggled narcotics into the United States 14 before. (Dkt. 1 at 3; see also Dkt. 89-3). He added that he had been offered 15 money to recruit new drivers to smuggle drugs. (Dkt. 1 at 3; 31 at 3–4; see also 16 Dkt. 89-3). Additionally, Knopping’s cell phone was seized. (Dkt. 31 at 4). It 17 contained messages corroborating he had attempted to recruit others to 18 smuggle drugs. (Id.; see also Dkt. 72 at 12; 89-3). 19 According to Knopping, the investigating agents attempted to unlock his 20 cell phone, but when unsuccessful, they asked him to unlock it for them. 21 (Dkt. 72 at 9). Knopping refused, but eventually the agents unlocked his cell 22 phone and accused him of offering someone else money to move drugs across 23 the border through text messages. (Id. at 12). Knopping alleges the agents 24 coerced him into talking without counsel present because he wasn’t in the right 25 mindset. (Id. at 13). After seeing that his phone had been unlocked, Knopping 26 continued speaking with the agents. (Id. at 13–14). He claims he requested 27 counsel multiple times during the interview, but the agents ignored his 1 Two weeks before his scheduled trial date, Knopping pled guilty to 2 importing methamphetamine. (Dkt. 26, 58). He signed a written plea 3 agreement swearing under oath that he knowingly, voluntarily, and intelligently 4 waived his trial rights. (Dkt. 28). Pending sentencing, and while on pretrial 5 release, Knopping violated his pretrial release conditions by using drugs. 6 (Dkt. 55 at 2:15–20). Additionally, Knopping failed to appear for sentencing on 7 March 18, 2019, (Id. at 2:5; Dkt. 37), absconding for about four months before 8 turning himself in on July 11, 2019, (Dkt. 57 at 39:14–24). 9 A petition was filed alleging Knopping had violated conditions of pretrial 10 release by using drugs and absconding. (See Dkt. 59 at 2:10–11). Knopping 11 waived his right to a prompt revocation hearing because his counsel was 12 attempting to negotiate an alternative plea agreement that wouldn’t result in 13 new formal charges. (See Dkt. 41; 57 at 3:13–23). 14 On September 30, 2019, the Court entered judgment and sentenced 15 Knopping to a ninety-month custodial term and five years of supervised 16 release. (Dkt. 49, 57). He appealed the Court’s sentence. The Ninth Circuit 17 affirmed in part, vacated in part, and remanded. (Dkt. 50, 69). This Court then 18 filed a judgment in accordance with the Ninth Circuit mandate on July 14, 2021. 19 (Dkt. 70). 20 Over a year later, Knopping filed a § 2255 motion. (Dkt. 72). The 21 Government opposed the motion, (Dkt. 79),2 and filed supplemental briefs 22 addressing the merits of Knopping’s ineffective assistance of counsel claim, 23

24 2 Knopping also filed a motion requesting leave to file a reply. (Dkt. 77). In the initial order setting a briefing schedule in the matter, the Court permitted 25 Knopping to file a reply two weeks after the Government filed its opposition. 26 (Dkt. 73). The Court subsequently extended the Government’s time to file its opposition to February 17, 2023. (Dkt. 78). Knopping filed his reply on 27 February 28, 2023. (Dkt. 80). The Court finds that filing timely, and therefore 1 (Dkt. 83, 89). Knopping asked for additional time to reply to the Government’s 2 initial supplemental brief, (Dkt. 84), which the Court granted, (Dkt. 85). 3 Knopping never responded to the initial supplemental brief, but he submitted a 4 reply to the Government’s second supplemental brief. (Dkt. 90). 5 II. DISCUSSION 6 Knopping cites six instances where his counsel was supposedly 7 ineffective. (Dkt. 72 at 5). The Government maintains the motion is untimely, 8 and therefore procedurally barred. (Dkt. 79 at 3). The Government alternatively 9 argues that the motion lacks factual support and doesn’t demonstrate either 10 ineffective assistance or prejudice. (Dkt. 83 at 3–11; 89 at 2–7). 11 A. Statute of Limitations 12 A prisoner in custody may move the court that imposed his sentence to 13 vacate, set aside, or correct the judgment under § 2255 if the sentence was 14 imposed in violation of the Constitution or laws of the United States, the court 15 was without jurisdiction to impose such a sentence, the sentence was longer 16 than the maximum authorized by law, or the sentence is otherwise subject to 17 collateral attack. 28 U.S.C. § 2255(a). A one-year limitations period applies to 18 motions brought under this section. The limitations period runs from the latest 19 of: (1) the date on which the judgment of conviction becomes final; (2) the date 20 on which the impediment to making a motion created by governmental action 21 in violation of the Constitution or laws of the United States is removed, if the 22 movant was prevented from making a motion by such governmental action; 23 (3) the date on which the right asserted was initially recognized by the Supreme 24 Court, if that right has been newly recognized by the Supreme Court and made 25 retroactively applicable to cases on collateral review; or (4) the date on which 26 the facts supporting the claim or claims presented could’ve been discovered 27 through the exercise of due diligence. Id. § 2255(f); United States v. Blaylock, 1 be granted to determine the validity of a petition brought under that section 2 “[u]nless the motions and the files and records of the case conclusively show 3 that the prisoner is entitled to no relief.” Blaylock, 20 F.3d at 1465. 4 This Court entered judgment after remand on July 14, 2021. (Dkt. 70). 5 Knopping’s one-year limitations period under § 2255 expired on July 14, 2022. 6 He mailed his motion on July 22, 2022, eight days after the expiration of the 7 limitations period. (Dkt. 72 at 19). The motion was eventually filed on the 8 Court’s docket on August 1, 2022, eighteen days after the expiration of the 9 limitations period. (Id. at 20). 10 Knopping contends his untimeliness should be excused because he 11 mistakenly believed the one-year limitations period started on either the day 12 he personally received the Court’s order in the mail, or the day his writ to the 13 Supreme Court was denied, rather than the day on which final judgment was 14 entered. (Dkt. 80 at 4). He also argues that short staffing and a change of 15 mailing policy within the Bureau of Prisons (“BOP”) attributed to his untimely 16 filing. (Id. at 2–4). 17 These arguments are unpersuasive. Even accepting Knopping’s 18 allegations that he mistakenly believed the deadline to be different and that he 19 was somehow hindered by the BOP’s mailing policy, the explanations don’t 20 justify the delay. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). 21 Knopping’s motion is time-barred and DISMISSED on this ground. 22 B. Ineffective Assistance of Counsel 23 Regardless of Knopping’s untimely filing, the Court alternatively rejects 24 his ineffective assistance claim on the merits. To establish ineffective 25 assistance of counsel, a petitioner must prove by a preponderance of the 26 evidence that: (1) the assistance provided by counsel fell below an objective 27 standard of reasonableness; and (2) there is a reasonable probability that, but 1 Strickland v. Washington, 466 U.S. 668, 688 (1984). To satisfy the deficiency 2 prong of the Strickland test, a petitioner must show that his counsel’s 3 performance “fell below an objective standard of reasonableness” and wasn’t 4 “within the range of competence demanded of attorneys in criminal cases.” Id. 5 at 687 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). There is a 6 “strong presumption that counsel’s conduct falls within a wide range of 7 professional assistance.” Id. at 689. “Surmounting Strickland’s high bar is 8 never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). 9 Knopping makes six arguments in support of his ineffective assistance 10 claim: (1) his counsel failed to properly advise him of his rights and options to 11 defend himself in a criminal case; (2) he wasn’t afforded his right to a pretrial 12 release revocation hearing; (3) agents at the border conducted an 13 unconstitutional search of his cell phone; (4) his counsel failed to move to 14 suppress certain statements; (5) his counsel failed to obtain and review 15 discovery; and (6) his counsel failed to object to the use of his juvenile record, 16 which he argues resulted in the imposition of a longer sentence. (Dkt. 72 at 5). 17 The Government’s response refutes each of the arguments and demonstrates 18 that none affected the outcome of this case. (See Dkt. 83 at 6–11; 89 at 2–7). 19 1. Knopping Was Properly Advised of His Rights and Options 20 21 The record refutes Knopping’s claim that he wasn’t properly advised of 22 his rights and options to defend himself. During his plea colloquy on 23 December 20, 2018, before Magistrate Judge Barbara L. Major, Knopping 24 repeatedly stated he understood he was pleading guilty to importing 25 methamphetamine and waiving his right to a trial. (Dkt. 58 at 3:15–4:22, 7:14– 26 25). He said he understood by pleading guilty he was admitting the amount 27 and type of drug involved in the case, and relieving the Government of its 1 doubt. (Id. at 8:14–9:3). The record likewise demonstrates that Knopping was 2 informed that by pleading guilty, he faced a maximum sentence of forty years 3 and a mandatory minimum sentence of five years. (Dkt. 28 at 4; 58 at 9:9–12). 4 He stated he understood the possibility of those penalties. (Dkt. 58 at 9:9–21). 5 He also said he understood that by pleading guilty he was waiving his right to 6 appeal and collaterally attack his conviction and sentence. (Id. at 12:22–13:11). 7 Knopping now argues he answered all of Judge Major’s questions 8 affirmatively because his counsel told him to do so to prevent his plea from 9 being rejected (if convicted at trial Knopping faced a possible sentence of life 10 in prison). (Dkt. 72 at 6). He asserts that all defense attorneys advise their 11 clients to answer affirmatively and that he was “falsely advised [of] possible 12 and likely outcomes.” (Id.). But his conclusory allegations are refuted by the 13 record, and in any event are insufficient to prove his counsel was ineffective. 14 Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). Other than 15 attributing to counsel a generalized statement that he could face a life 16 sentence, Knopping doesn’t identify any statement his counsel made that was 17 false. (See Dkt. 72 at 6); see also Grubb v. Woodford, 105 F. App’x 142, 144 18 (9th Cir. 2004) (affirming denial of ineffective assistance of counsel claim 19 because defendant was informed of his rights, including the possible sentence, 20 he waived his rights, and he entered into a plea agreement for a sentence less 21 than the maximum exposure). 22 One gleans from Knopping’s petition that much of his dissatisfaction 23 stems from receiving a sentence that was higher than what he expected. 24 However, Judge Major advised Knopping of exactly that possibility during the 25 change of plea colloquy, and Knopping said he understood. Judge Major told 26 Knopping that the sentencing judge would “consider the sentencing as 27 advisory in determining [his] sentence,” and that “the sentencing judge may 1 advise a lower sentence.” (Dkt. 58 at 9:23–10:16). Knopping responded that 2 he’d discussed this with his counsel, (id. at 10:1–3), and acknowledged that he 3 understood his sentence might be longer than he expected: 4 THE COURT: [N]either your attorney nor anyone else can guarantee the sentence you will receive. If 5 the sentence you receive is more severe than you 6 expect, you will be bound by your guilty plea and you will not have a right to withdraw your guilty plea, do 7 you understand that, Mr. Knopping? 8 THE DEFENDANT: Yes. 9 10 (id. at 10:17–23). 11 No evidence demonstrates Knopping’s guilty plea was the product of 12 ineffective assistance. To the contrary, the record establishes that he read the 13 written plea agreement, initialed each page, and signed the agreement 14 declaring that he had discussed it with his attorney and fully understood its 15 meaning and effect. (Id. at 12:2–20). Knopping also later confirmed he was 16 satisfied with the representation he received from his counsel. (Id. at 12:12– 17 14). 18 In sum, Knopping was properly advised of his rights and options to 19 defend himself in his criminal case, and he knowingly, voluntarily, and 20 intelligently waived them. 21 2. Knopping Waived His Right to a Revocation Hearing 22 Knopping waived his right to a revocation hearing for violations of pretrial 23 release. Under Federal Rule of Criminal Procedure 32.1(b), a revocation 24 hearing must be held so the defendant has an opportunity to make a statement 25 and present any information in mitigation unless this right is waived. Fed. R. 26 Crim. P. 32.1(b). Here, Knopping waived his right to a revocation hearing to 27 allow his counsel the option to negotiate an alternative plea that would prevent 1 conditions and absconding. (See Dkt. 41; 57 at 3:13–23). Knopping’s counsel 2 declared that she met with him to go over his rights and review his options, and 3 he confirmed he was prepared to go forward with sentencing. (Dkt. 89-1 ¶ 15). 4 Once again, Knopping’s arguments reflect dissatisfaction, not with his 5 counsel, but with the sentence he received. He argues “[he] was given an 6 additional 30 months” when he thought “he would receive a [total] sentence of 7 60 months.” (Dkt. 72 at 7; accord Dkt. 90 at 3, 7, 9). But after he absconded 8 before sentencing, the Court wasn’t obligated to credit him with the full 9 downward adjustments originally agreed to. (Dkt. 57 at 26:8–25). Knopping 10 breached the plea agreement by failing to appear, (Dkt. 28 at 11), triggering a 11 two-level upward adjustment for obstruction of justice, U.S.S.G. § 3C1.1. On 12 Knopping’s appeal, the Ninth Circuit agreed the Court didn’t “abuse its 13 discretion by concluding that Knopping’s failure to appear at the initial 14 sentencing and subsequent decision to abscond for several months were 15 inconsistent with complete acceptance of responsibility.” (Dkt. 69 at 3). 16 Knopping incorrectly alleges that he received a longer sentence because 17 his counsel failed to pursue a pretrial revocation hearing. This allegation is 18 refuted by the record. Counsel argued for the Court to impose no greater 19 sentence than the mandatory minimum of sixty months. (Dkt. 57 at 7:15–20). 20 Counsel explained that Knopping absconded because he feared going to 21 prison during his initial sentencing, (id. at 9:6–11); while missing, he remained 22 on good behavior and wasn’t rearrested, (id. at 9:15–18); and he accepted 23 responsibility from the inception of the case and pled guilty under a “Fast Track” 24 plea agreement, (id. at 15:2–20). Despite counsel’s arguments, the Court 25 disagreed that Knopping was entitled to downward adjustments for acceptance 26 of responsibility and Fast Track. (Id. at 26:8–25). In sum, Knopping’s 27 noncompliant behavior, not any malfeasance by his counsel, was the reason 1 3. Cell Phone Search 2 To establish ineffective assistance of counsel based on failure to 3 suppress evidence, a defendant must show that a reasonable probability exists 4 both that the motion would’ve been granted and the outcome would’ve been 5 different. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). 6 Knopping fails to make the required showing here. His cell phone and the data 7 within it were subject to search at the border without a warrant. United States 8 v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); United States v. Cano, 9 934 F.3d 1002, 1014, 1016 (9th Cir. 2019). 10 When Knopping was arrested on September 17, 2018, the investigators 11 relied on the border search exception to run a Cellebrite download of his cell 12 phone. (Dkt. 89-2). While Knopping claims his cell phone was locked, (see 13 Dkt. 72 at 9; 90 at 4), it had to be unlocked before the Cellebrite download, 14 (Dkt. 89-2). Either Knopping provided his passcode or the cell phone was 15 already unlocked because the investigators “wouldn’t have attempted to crack 16 or bypass the PIN [themselves]. That’s something our CFAs would have done 17 later if needed with other software.” (Id.). In the post-arrest recorded video 18 statement, Knopping never raised an issue with his cell phone being unlocked 19 or the information obtained. (See Dkt. 89-3). Under then existing law, the 20 border search was legal and any motion to suppress the evidence would’ve 21 been futile. Moreover, there wasn’t a point for counsel to litigate motions related 22 to his cell phone because Knopping agreed to plead guilty under a Fast Track 23 agreement. (Dkt. 89-1 ¶ 10); see also United States v. Lopez-Armenta, 400 24 F.3d 1173, 1175 (9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty 25 plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent 26 rulings and cures all antecedent constitutional defects.”). Counsel’s inaction in 27 this regard wasn’t ineffective and didn’t change the outcome of Knopping’s 1 4. Suppression of Statements 2 Knopping argues vaguely that his disgruntled statements to the agents 3 should’ve been suppressed because his rights were violated when he 4 requested to speak to counsel. The Court assumes that he is referring to 5 statements he made about importing drugs on a prior occasion. (See Dkt. 72 6 at 13–14). 7 Again, Knopping must show that a reasonable probability exists both that 8 the motion would’ve been granted and the outcome would’ve been different 9 absent the introduction of the unlawful evidence. See Kimmelman, 477 U.S. at 10 382. Knopping acknowledges he was given Miranda warnings, and admits he 11 voluntarily “engaged in conversation, [albeit] a disgruntled one” with the 12 agents. (Dkt. 72 at 14). He offers no evidence that the agents coerced him to 13 speak with them. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 14 1048 (9th Cir. 1990) (“Coercive police activity is a necessary predicate to the 15 finding that a confession is not ‘voluntary’ within the meaning of the due 16 process clause.”). He also insists he requested counsel numerous times during 17 his conversation with the agents, but the agents “simply ended the interview” 18 after his “final” request for counsel. (Dkt. 72 at 14). 19 To the contrary, Knopping didn’t request counsel. In the post-arrest 20 recorded video statement, Knopping acknowledged he understood his rights 21 provided in the Miranda warning, agreed to speak with the investigators without 22 counsel present, and never requested to speak to counsel during the duration 23 of the recorded statement. (See Dkt. 89-3). Almost twenty-five minutes into 24 questioning, Knopping asked when he would get a phone call and the 25 investigator responded that we could talk about that later. (See id.). Knopping 26 continued answering questions for thirty-nine minutes before requesting a 27 phone call to his mother, so she doesn’t think that he “is dead or something.” 1 embellish facts,” (Dkt. 31 at 10), which appears to be happening here. If 2 Knopping requested counsel after the recorded statement, it’s unclear if he 3 made any incriminating statements prior to invoking his right to counsel. 4 Even if Knopping was entitled to suppress statements made after he 5 invoked his right to counsel, this argument was waived when Knopping pled 6 guilty under a Fast Track agreement. (Dkt. 89-1 ¶ 10); see also Lopez- 7 Armenta, 400 F.3d at 1175; Williams v. Ryan, No. 05-cv-737-WQH-WMc, 2010 8 WL 3768151, at *12 (S.D. Cal. Sept. 21, 2010) (citing Strickland, 466 U.S. at 9 691 and Langford v. Day, 110 F.3d 1380, 1386–88 (9th Cir. 1996) (petitioner 10 failed to demonstrate ineffective assistance of counsel based on a failure to file 11 suppression motion where he insisted on pleading guilty)). Counsel didn’t act 12 unreasonably by not pursuing a motion to suppress Knopping’s voluntary 13 statements taken in compliance with Miranda. 14 5. Discovery Review 15 “Ineffective assistance claims based on a duty to investigate must be 16 considered in light of the strength of the government’s case.” Eggleston v. 17 United States, 798 F.2d 374, 376 (9th Cir. 1986). Here, Knopping argues his 18 counsel “never once went over a single piece of evidence” and “it is virtually 19 impossible for counsel to have reviewed every piece of the evidence . . . [or] 20 for counsel to have done any sort of investigation of the case, the facts, and 21 information provided.” (Dkt. 72 at 14–15). Knopping’s claim is directly 22 contradicted by his counsel’s statement that she received approximately fifty 23 pages of discovery and reviewed the discovery with him on multiple occasions. 24 (See Dkt. 57 at 21:25; 89-1 ¶¶ 8–9). Even Knopping later admits that he “did 25 in fact receive a partial discovery via email” but it was only a few pages of basic 26 information. (Dkt. 90 at 2). Knopping’s concession proves that his counsel did 27 obtain and review discovery in his case. Moreover, Knopping waived this claim 1 F.3d 1141, 1144 (9th Cir. 2012) (citing Tollett v. Henderson, 411 U.S. 258, 267 2 (1973) and Lopez-Armenta, 400 F.3d at 1175) (“An unconditional guilty plea 3 waives all nonjurisdiction, antecedent defects.”). 4 Regardless, Knopping was caught red-handed smuggling drugs into the 5 United States from Mexico. The evidence against him was overwhelming, so it 6 wasn’t ineffective for counsel to concentrate her efforts on advising him to 7 plead guilty rather than prepare for a trial where, if convicted, Knopping would 8 likely receive a much harsher sentence. See Eggleston, 798 F.2d at 376. As 9 the Government points out, Knopping hasn’t provided any version of facts that 10 would have resulted in a different outcome. (Dkt. 83 at 10); see also Bragg v. 11 Galaza, 242 F.3d 1082, 1088–89 (9th Cir. 2001) (holding mere speculation that 12 further investigation might’ve led to helpful evidence isn’t sufficient to show 13 ineffective assistance). To the contrary, the record demonstrates that counsel 14 reviewed the discovery and made a strategic determination of how to proceed 15 with the case. 16 6. Object to Use of Knopping’s Juvenile Record 17 The Court properly considered Knopping’s juvenile record during his 18 sentencing. Under the United States Sentencing Guidelines, one point is 19 added for each juvenile sentence imposed for an offense committed prior to 20 the defendant’s eighteenth birthday if the juvenile sentence was imposed within 21 five years of the defendant’s commencement of the current offense. U.S.S.G. 22 §§ 4A1.1(c), 4A1.2(d). Knopping’s juvenile criminal record included auto thefts 23 and failing to obey an order of the juvenile court. (Dkt. 57 at 29:23–30:6). 24 These prior convictions (true findings) counted for one point each, placing 25 Knopping in Criminal History Category II. (Dkt. 31 at 7–8). Both juvenile 26 sentences were imposed within five years of Knopping’s federal offense. 27 Knopping also asserts in a February 22, 2023 letter to the Court that “[he] 1 establishes that Knopping didn’t qualify for Safety Valve relief because he was 2 too “terrified” to participate in a debrief session with the prosecutor. (Dkt. 57 3 at 18:10–14). Under then existing law, his two criminal history points precluded 4 him from eligibility for Safety Valve relief. U.S.S.G. § 5C1.2; (Dkt. 31 at 17). 5 Regardless, Knopping can’t demonstrate that, but for the alleged error, 6 his sentence would’ve been different. See Strickland, 466 U.S. at 688. His 7 ninety-month sentence was far shorter than the low end of his guidelines range 8 of 262 to 327 months. (Dkt. 57 at 35; 70 at 2). To the contrary, Knopping’s 9 counsel skillfully negotiated the mandatory minimum sentence he faced from 10 ten years down to five years, (Dkt. 57 at 19:7–25), and her arguments urging 11 many other mitigating factors helped reduce his sentence even further, (id. 12 at 7:15–9:25, 15:13–20). 13 7. No Evidentiary Hearing Required 14 An evidentiary hearing isn’t required when “the motion and the files and 15 records of the case conclusively show that the prisoner is entitled to no relief.” 16 28 U.S.C. § 2255; United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) 17 (“Merely conclusory statements in a § 2255 motion are not enough to require 18 a hearing.”). Courts may decide whether facts can be gathered and the record 19 supplemented with other documentary evidence prior to determining the need 20 for an evidentiary hearing. Shah, 878 F.2d at 1160; see also United States v. 21 Olmo, 663 F. Supp. 102, 103–04 (N.D. Cal. 1987). An evidentiary hearing isn’t 22 required in this case because Knopping hasn’t made “specific factual 23 allegations which, if true, would entitle him to relief.” Baumann v. United States, 24 692 F.2d 565, 571 (9th Cir. 1982). 25 III. CERTIFICATE OF APPEALABILITY 26 A certificate of appealability is authorized “only if the applicant has made 27 a substantial showing of the denial of a constitutional right.” 28 U.S.C. 1 issues are debatable among jurists of reason; that a court could resolve the 2 issues [in a different manner]; or that the questions are adequate to deserve 3 encouragement to proceed further.’” Lambright v. Stewart, 220 F.3d 1022, 4 1025 (9th Cir. 2000) (alteration and emphasis in original) (quoting Barefoot v. 5 Estelle, 463 U.S. 880, 893 n.4 (1983)). In the absence of a certificate of 6 appealability, no appeal in a § 2255 proceeding may be heard. 28 U.S.C. § 7 2253(c). 8 Having reviewed the matter, the Court finds that Knopping hasn’t made 9 a substantial showing that he was denied a constitutional right and isn’t 10 persuaded that jurists could disagree with the Court’s resolution of his claims 11 or that the issues presented deserve encouragement to proceed further. 12 Therefore, a certificate of appealability is DENIED. 13 IV. CONCLUSION 14 Ultimately, Knopping isn’t concerned with the actions of his counsel. 15 Rather, he states himself that he “only comes forward now to get the 60 month 16 sentence he was promised” or that he “only comes forward for his sentence to 17 be vacated and set aside and to be re-sentenced to the 60 month plea 18 agreement that he signed for and was well-promised by his former Attorney, 19 without any aggravating factors.” (Dkt. 90 at 3, 9). He is upset that instead of 20 receiving sixty months, he received ninety months, which he believes is a 21 breach of the plea agreement he signed, and he didn’t receive any benefit from 22 pleading guilty under the Fast Track agreement. (Id. at 3, 7). In fact, Knopping 23 did receive a benefit because his sentence of ninety months was below the 24 guideline range of 262 to 327 months. While the Court recognizes that 25 Knopping wants to be an upstanding citizen in the community, he must face 26 the consequences of his uncontested criminal activity—imported 27 methamphetamine into the United States and absconded for about four 1 Knopping’s motion to vacate, set aside, or correct sentence under 28 2 || U.S.C. §2255 in DENIED. The Court finds there is no right to or need for an 3 || evidentiary hearing in this case. Knopping’s motion for appointment of counsel 4 ||is DENIED, as is a certificate of appealability. 5 IT IS SO ORDERED. 6 7 || Dated: April 12, 2024 law A Chum Hon. LARRY ALAN BURNS 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- 18-cr-4451-LAB