United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
E. JONES, SENIOR JUDGE.
Vidana-Saravia (Vidana) filed a pro se petition
pursuant to 28 U.S.C. §2255, (#77) to vacate or set
aside his federal conviction. A month later, he filed a
motion asking for a protective order of the attorney-client
work product information. (#79). In his pro se
petition, Vidana claims that he received ineffective
assistance of counsel and asks me to hold an evidentiary
hearing and impose the mandatory minimum sentence of 60
months in place of his previously imposed 87 month sentence.
Upon review of the record, I conclude Vidana's claims for
relief lack merit and an evidentiary hearing is unnecessary
because Vidana alleges no facts that would entitle him to
relief. For the reasons set forth below, Vidana's
§2255 motion and his motion for a protective order are
denied. I also decline to issue a certificate of
appealability, because petitioner has not made a substantial
showing of a denial of a constitutional right, pursuant to 28
U.S.C. §2253 (c)(2).
2014, Salem Police Officers, with the help of a confidential
informant (CI), arranged for the delivery of approximately
five pounds of methamphetamine to the CI. Following the
delivery, the police arrested the person making the delivery,
who then agreed to cooperate with the police. This
cooperating source (CS) identified Vidana as the source of
the methamphetamine. At the request of the officers, the CS
placed a call to Vidana. The officers recorded the
conversation between the CS and Vidana, during which Vidana
discussed details related to the delivery of the
methamphetamine, arranged to collect the money from that
sale, and agreed to deliver an additional pound of heroin.
While en route to meet the CS, Vidana was arrested. At that
time, the officers searched Vidana and discovered
approximately 447.6 grams of heroin on Vidana's person.
After his arrest, Vidana consented to a search of his home.
No items of evidentiary value were found or seized at his
pleaded guilty to Possession with the Intent to Distribute
Heroin in violation of 21 U.S.C. § 841 (a)(1) and
(b)(1)(B). In May, 2016, 1 sentenced him to 87 months in
prison. He filed this motion in June, 2017.
establish ineffective assistance of counsel, a defendant must
show: (1) his legal representation was so deficient it
amounted to a denial of his Sixth Amendment right to counsel;
and (2) there is a reasonable probability that the
"deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984); accord United States v. Withers, 618 F.3d
1008, 1019 (9th Cir. 2010); see also Knawles v.
Mirzayance, 556 U.S. 111, 122 (requiring that a
defendant must show both deficient performance and prejudice
to prove ineffective assistance of counsel). If a defendant
fails to prove either prong, the entire ineffective
assistance of counsel claim fails. Strickland, 466
U.S. at 700. Regarding the first prong of the
Strickland test, "the defendant must show that
the counsel's representation fell below an objective
standard or reasonableness." Strickland, 466
U.S. at 688; accord Withers, 618 F.3d at 1019.
Regarding the second prong, a "reasonable
probability" means "a probability sufficient to
undermine confidence in the outcome." Matylinsky v.
Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (quoting
Strickland, 466 U.S. at 694). The defendant has the
burden of showing that the errors "actually had an
adverse effect on the defense." Strickland, 466
U.S. at 693.
inquiry into counsel's performance "must be highly
deferential, " and strategic choices as to how to defend
a case are "virtually unchallengeable."
Strickland, 466 U.S. at 689-90. In addition,
"the defendant must overcome the presumption that, under
the circumstances, the challenged action 'might be
considered sound trial strategy.'"
Strickland, 466 U.S. at 689.
satisfy the prejudice prong, "a challenger must
demonstrate a reasonable probability that, but for the
counsel's unprofessional errors, the result of the
proceeding would have been different." Harrington v.
Richter, 562 U.S. 86 104 (2011). However, "it is
not enough to show that the errors had some conceivable
effect on the outcome of the proceeding. Counsel's errors
must be so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable."
Harrington, 562 U.S. at 104.
petition, Vidana asserts three bases for his claim of
ineffective assistance of counsel. Vidana asserts that his
attorney provided ineffective assistance of counsel when she
(1) failed to file a motion to suppress evidence obtained
from the phone recording that occurred between the CS and
Vidana; (2) failed to challenge his warrantless arrest; and
(3) failed to file a motion to suppress the warrantless
search of his home.
Vidana's first claim, the CS consented to the
officer's request to call Vidana and to record the call.
The federal wiretap statute permits warrantless audio
surveillance if one of the participants in the monitored
conversation consents. 18 U.S.C. § 2511(1). Furthermore,
the Fourth Amendment provides no protection "to 'a
wrongdoer's misplaced belief that a person to whom he
voluntarily confides his wrongdoing will not reveal
it.'" United States v. White, 401 U.S. 745,
749 (1971) (citation omitted). Vidana's counsel correctly
chose not to file a motion to suppress on this issue. Thus,
contrary to his assertion, Vidana received effective
assistance of counsel.
his second and third claims, Vidana contends that he received
ineffective assistance when his counsel failed to challenge
his warrantless arrest and the warrantless search of his
home. He argues that the officers led him to believe that he
was lawfully arrested when consented to the search his home
when, in fact, the officers had neither probable cause nor a
warrant to arrest him. Given the facts recounted above, the
officers had probable cause to arrest Vidana. Vidana agreed
to meet the CS and deliver a controlled substance. When he
arrived, he had nearly 500 grams of heroin on his person. As
he admits in his motion, he consented to the search of his
home. His attorney's decision not to ...