DAVID D. DOWD, Jr., District Judge.
Before the Court is the motion of Luis Alberto Mendoza-Almendarez ("Mendoza" or "Petitioner") for relief pursuant to 28 U.S.C. §2255 (ECF No. 157) and the Government's brief in opposition (ECF No. 159). For the following reasons, the motion is denied.
Mendoza was indicted on April 23, 2008, and pleaded guilty on November 19, 2008, to conspiracy to distribute and to possess with the intent to distribute five kilograms or more of cocaine, and one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). The defendant later filed a motion to withdraw his guilty plea, which the Court denied.
At sentencing, the Court determined that Mendoza's Base Offense Level was 34, his Criminal History Category was VI, and his advisory imprisonment range was 262-327 months. These numbers were calculated first by the Probation Department and then determined by the Court under the United States Sentencing Guidelines ("U.S.S.G." or "sentencing guidelines"). The Base Offense Level was determined based on the amount and type of drugs that Mendoza admitted were involved in the criminal conduct. The Court rejected a two-level reduction of the offense level for acceptance of responsibility because Mendoza tried to withdraw his guilty plea. The Court declined to apply a "Career Offender" enhancement under the sentencing guidelines that would increase the offense level. Thus his Total Offense Level remained the same as his Base Offense Level of 34. Mendoza's Criminal History Category was determined based on his many prior criminal convictions.
The Government sought a statutory enhancement, and it filed an Information pursuant to 21 U.S.C. §851 alleging that Mendoza had two prior drug convictions that could increase his penalty to a life imprisonment without possibility of release under 21 U.S.C. §841(b)(1)(A). Ultimately, only one of these prior convictions was used to determine that Section 841 imposed a statutory mandatory minimum sentence of 240 months imprisonment for the present conviction.
The Court imposed a sentence of 262 months with supervised release for a period of three years. This sentence is within the sentencing guidelines range and above the statutory mandatory minimum. The Court imposed this sentence to run concurrently with the remainder of a sentence that Mendoza was already serving for felon in possession of ammunition and for being found as an illegal alien in the United States following deportation in case number CR-06-00542 in the United States District Court for the Central District of California.
Mendoza appealed the Court's decision to deny his motion to withdraw his guilty plea. However, the Sixth Circuit rejected the defendant's argument and affirmed the decision. United States v. Mendoza-Almendarez, 437 F.Appx. 394 (6th Cir. 2011).
II. Basis for Petitioner's Motion
Mendoza now brings a motion to vacate, correct, or modify his sentence pursuant to 28 U.S.C. §2255. His claim for relief is based on alleged ineffective assistance of counsel. Mendoza claims that his trial counsel exhibited ineffective assistance at sentencing for two reasons. First, Mendoza claims that his counsel failed to argue that his criminal history score was calculated incorrectly, and thus his Criminal History Category was incorrect. Second, he claims that counsel failed to argue that his sentence should be credited with the time that he had already served on the California term of imprisonment for a related conviction. Mendoza also claims that his appellate counsel provided ineffective assistance for not raising these issues on direct appeal.
III. Standard of Law
28 U.S.C. §2255(a) provides that a prisoner has a "right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." If the Court finds that there has been such a violation, it shall "correct the sentence as may appear appropriate." 28 U.S.C. §2255(b). In this case, Petitioner claims that he is entitled to relief under Section 2255 because he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel.
The petitioner bears the burden of establishing that his constitutional right to counsel was denied by a preponderance of the evidence. McNeil v. U.S., 72 F.Supp.2d 801, 804 (N.D.O.H. 1999). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that in order to establish ineffective assistance of counsel, a convicted defendant must make two showings: (1) that counsel's performance was deficient under an objective standard of reasonableness, and (2) that the defendant suffered prejudice because of counsel's errors. Id. at ...