United States District Court, D. Oregon, Portland Division
Williams United States Attorney Jane H. Shoemaker Assistant
United States Attorney Attorneys for Plaintiff .
Olson Hoevet Olson Howes, Attorneys for Defendant.
OPINION & ORDER
A. HERNANDEZ United States District Judge.
moves to vacate or to correct his sentence pursuant to 28
U.S.C. § 2255. ECF 56. Because Defendant's claims
have no merit or have been waived, the Court denies
Defendant's Motion. Because the Motion and record
conclusively show Defendant is not entitled to relief, no
evidentiary hearing is required.
& PROCEDURAL BACKGROUND
16, 2013, a grand jury charged Defendant with two counts of
armed bank robbery in violation of 18 U.S.C. § 2113(a),
(d) (Counts One and Three) and two counts of using a firearm
during a crime of violence in violation of 18 U.S.C. §
924(c)(1) (Counts Two and Four). ECF 26 (Indictment). The
Indictment stemmed from two separate armed bank robberies on
October 22, 2012, and November 21, 2012, in the Portland
September 30, 2013, Defendant pleaded guilty to the two armed
bank robbery counts (Counts One and Three) and one count of
using a firearm during a crime of violence (Count Two). ECF
26 (Indictment), ECF 38 (Plea Agreement), ECF 39 (Plea
Petition). On January 13, 2014, pursuant to a Plea Agreement
that the parties entered into pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), this Court sentenced
Defendant to 186 months imprisonment on Count One, a
mandatory minimum sentence of 84 months imprisonment on Count
Two to be served consecutively to the sentence on Count One,
and 186 months imprisonment on Count Three to be served
concurrently with the sentence imposed on Count One. ECF 44
(Judgment and Commitment). Pursuant to the Plea Agreement,
the Court dismissed Count Four. As part of his Plea
Agreement, Defendant waived his right to appeal or to
collaterally attack his conviction or sentence. Accordingly,
Plaintiff did not appeal his conviction or his sentence.
§ 2255, a federal prisoner in custody may move the
sentencing court to vacate, set aside, or correct a sentence
on the basis that the sentence violates the Constitution or
the laws of the United States. 28 U.S.C. § 2255(a);
United States v. Withers, 638 F.3d 1055, 1062 (9th
Cir. 2011) (citing Davis v. United States, 417 U.S.
petitioner must demonstrate that an error of constitutional
magnitude had a substantial and injurious effect or influence
on the guilty plea or the jury's verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); see also
United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
2003) (“We hold now that Brecht's harmless
error standard applies to habeas cases under section 2255,
just as it does to those under section 2254.”).
district court must grant a hearing “[u]nless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief[.]” 28
U.S.C. § 2255(b). In determining whether a § 2255
motion requires a hearing, “the standard essentially is
whether the movant has made specific factual allegations
that, if true, state a claim on which relief could be
granted.” Withers, 638 F.3d at 1062 (brackets
and internal quotation marks omitted). A district court may
dismiss a § 2255 motion based on a facial review of the
record “only if the allegations in the motion, when
viewed against the record, do not give rise to a claim for
relief or are ‘palpably incredible or patently
frivolous.'” Id. at 1062-63 (quoting
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984)); see United States v. Hearst, 638 F.2d
1190, 1194 (9th Cir. 1980) (conclusory statements in a §
2255 motion are insufficient to require a hearing).
review is not an alternative to direct appeal. Bousley v.
United States, 523 U.S. 614, 621 (1998) (“Habeas
review is an extraordinary remedy and will not be allowed to
do service for an appeal.”) (internal quotation marks
omitted). Absent a showing of cause and prejudice, a habeas
petitioner procedurally defaults all claims that were not
raised in his direct appeal, other than claims asserting
ineffective assistance of counsel. Massaro v. United
States, 538 U.S. 500, 504 (2003). “[T]o obtain
collateral relief based on trial errors to which no
contemporaneous objection was made, a convicted defendant
must show both (1) ‘cause' excusing his double
procedural default, and (2) ‘actual prejudice'
resulting from the errors of which he complains.”
United States v. Frady, 456 U.S. 152, 167-68 (1982).
To demonstrate “cause, ” the defendant must
establish that “‘some objective factor external
to the defense impeded his adherence to the procedural
rule.” United States v. Skurdal, 341 F.3d 921,
925 (9th Cir. 2003) (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986)). For “prejudice, ” the
defendant must show “not merely that the errors at his
trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170. The
district court does not need to address both prongs if the
defendant fails to satisfy one. Id. at 168.
defendant who fails to show cause and prejudice to excuse a
procedural default, may still obtain review on a § 2255
collateral attack by demonstrating the likelihood of his
actual innocence. United States v. Braswell, 501
F.3d 1147, 1150 (9th Cir. 2007). To establish actual
innocence, the defendant must demonstrate that in light of
all the evidence, it is more likely than not that no
reasonable juror would have convicted him. Alaimalo v.
United States, 645 F.3d 1042, 1047 (9th Cir. 2011);