2 ‘oct 6 nw |

CLERK. US, □□□

4 . SOUTHERN DISTRICT CF CALIFCA □□□

6 7 . 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || ESMERALDA SARAI CRUZ-_ ) Case No.: 3:18-cv-02511-BEN D VENEGAS, )- 3:17-cr-03179-BEN-1 M t, ) 13 oven ) ORDER DENYING MOTION TO al” ) VACATE, SET ASIDE, OR

AME ) CORRECT SENTENCE UNDER

15 UNITED STATES OF ERICA, ) 28 U.S.C. § 2255 16 Respondent. ) _) [ECF No. 1] 17 18 19 WWI. INTRODUCTION 20 Before the Court is Petitioner Esmeralda Sarai Cruz-Venegas’ (“Movant” or 21 ||“Petitioner”’) motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her 92 || sentence of 48 months’ imprisonment and five years of supervised release, resulting from 23 felony conviction for Importation of Methamphetamine, in violation of 21 U.S.C. 8§ □ 24 ||952 and 960. CV ECF No,! 1; ECF No. 28. After considering the papers submitted, 25 ||Supporting documentation, and applicable law, the Court DENIES Petitioner’s Motion. 26

28 | All docket citations refer to the criminal case docket, Case No. 3:17-cr-00414-BEN- Any docket citations in this civil case will be referred to as “CV ECF No.” □□ . 1 □

| BACKGROUND 2 A. Statement of Facts

3 In Spring 2017, Petitioner was a nineteen year old student at the University of Baja 4 California, majoring in Political Science, and became pregnant with her second child. 5 || ECF No. 21 at 2:16-18. However, on August 26, 2017, Petitioner was hospitalized for 6 ||two days following a miscarriage. Id. at 2; ECF No. 18 at 7. After Petitioner confided in 7 ||her father regarding the medical bills she had incurred, he agreed to loan her the money g || for her hospital bills because her boyfriend refused to help with expenses. ECF No. 21 at ||2:19-24; ECF No. 18 at 4. 10 Meanwhile, at an unknown time, Petitioner admitted to responding toa Facebook 11 |/ad that sought females to work in the United States for very good pay. ECF No. 18 at 3. 12 || The reply to her message informed her that she would have to transport drugs into the 13 || United States in exchange for $800.00, which she would receive after she completed the 14 ||delivery. Jd. Petitioner agreed to the terms. Jd; see also ECF No. 21 at 2:25-27. 15 || Petitioner stated she hoped to be able to pay her father back for the money for her medical expenses after earning money by transporting drugs. ECF No. 18 at 4. 17 On September 7, 2017, Petitioner received a call from an unknown female, who 1g || told Petitioner to take a taxi to and meet her at a location, which was an empty lot. ECF 19 18 at 3. Upon arrival, both women drove to a residence near the port of entry, where 99 man placed narcotics on Petitioner. Jd. Then, the two females took a taxi from the 91 ||residence to the border crossing, where Petitioner was instructed to erase all conversations 99 about the smuggling from her phone. /d. Next, Petitioner applied for entry into the United 93 States from Mexico via the Calexico, California, Port of Entry pedestrian lanes. Id. At 4 7:28 am., Petitioner presented her Border Crossing Card and said she was going 5 shopping. /d. As Petitioner was waiting for her purse at the x-ray machine, a U.S. Customs and Border Protection (“CBP”) officer observed a bulge in her groin and 7 buttocks area, so Petitioner was referred to a secondary inspection for a pat-down. ECF 28 No, 18 at 3; ECF No. 21 at 3:4-8. During the pat down, the CBP officer discovered three

.

packages in her breast area and seven in her groin and buttocks area. ECF No. 18 at3. A 2 total of 10 packages of methamphetamine were recovered from Petitioner with a net 3 weight of approximately 1.92 kilograms. Jd. . . Petitioner’s border crossing history indicates 41 previous border crossings. ECF 3 |No. 18 at 3. Authorities also seized $170 and three cell phones from Petitioner at the time © || ofher arrest, Id However, Petitioner stated to authorities that she crossed so many times 7 because “friends without papers would ask [her] . . . to get them things in Calexico and 8 bring them back [to Mexico].” /d. at 4. Petitioner claims that she did not know what type lot drugs she was transporting because they were all wrapped up when they were strapped 10 || onto her body. Id. |) The Presentence Investigation Report indicates that Petitioner saw a counselor in 12 || Mexicali in 2012 for six months to address feelings of anger and depression. ECF No. 18 13 Jlat 7. Petitioner also has a young son, who resides with her parents while she is 14 incarcerated. Id. 15 Petitioner is currently twenty-two years old and is scheduled to be released on 16 llFebruary 2,2021. 17 B. Procedural History □ 18 On September 8, 2017, the Government filed a complaint against Petitioner for 19 || violation of 21 U.S.C. §§ 952 and 960. ECF No. 1. On September 12, 2017, Petitioner 20 || waived a preliminary hearing. ECF No. 7. | On October 5, 2017, the Government charged Petitioner with knowingly and 22 intentionally importing 1.92 kilograms (4.22 pounds) of a mixture and substance 23 || containing a detectable amount of methamphetamine, into the United States in violation _ 24 21 U.S.C. §§ 952 and 960. ECF No. 10. That same day, October 5, 2017, Petitioner 25 |lwaived her right to prosecution by indictment and consented to prosecution by 26 |linformation. ECF No. 11. 27 On November 7, 2017, Petitioner consented to entering a Rule 11 plea before 28 Magistrate Judge Nita L, Stormes, ECF No. 15. That same day, November 1, 2017, ~3-

| |! Petitioner waived indictment and entered a guilty plea. ECF No. 16. In her plea 2 agreement, signed by Petitioner on October 25, 2017, Petitioner represented that she “has 3 Il had a full opportunity to discuss all the facts and circumstances of this case with defense + counsel and has a clear understanding of the charges and the consequences of this plea.” > |IECF No. 16 at 6. _ Petitioner also agreed that she waived “all rights to appeal and to 6 collaterally attack every aspect of the conviction and sentence.” Jd. at 11. However, the 7 plea agreement contained exceptions, which allowed her to appeal (1) “a custodial 8 || sentence above the greater of 71 months or the mandatory minimum term, if applicable” 9 (2) “the conviction or sentence on the basis that defendant received ineffective 10 || assistance of counsel.” Jd. at 11. That same day, November 7, 2017, Petitioner entered 11 \/her guilty plea before Judge Stormes, and Judge Stormes issued a findings and 12 || recommendation to accept Petitioner’s guilty plea. ECF No. 17. 13 On January 2, 2018, a Presentencing Investigation Report was filed. ECF No, 18. 14 |i The following day, on January 3, 2018, after no objections were filed, the Court accepted 13 Findings and Recommendation of the Magistrate Judge and accepted Petitioner’s 16 || suilty plea, ECF No. 19. oe 17 As part of Petitioner’s plea agreement, the parties agreed to jointly recommend 18 || Petitioner’s sentencing be based on the following U.S. Sentencing Guidelines Base 19 |! Offense Level, Specific Offense Characteristics, Adjustments, and Departures: 20 1. Base Offense Level [USSG § 2D1.1(c)(4)]_ 34 2. Importation of Methamphetamine [USSG § 2D1.1(b)(5)] . +2 21 3. Safety Valve, if applicable [USSG §§ 2D1.1(b)(17) & and5C1.2.—--2 22 4. . Acceptance of Responsibility [USSG § 3E1.1{a)] . -2 5, Acceptance of Responsibility [USSG § 3E1.1(b)] -1 23 6. Departure for Fast Track [USSG §5K3,1] 24 25 || ECF No. 16 at 8. The government agreed to recommend that the defendant be sentenced 26 the low end of the advisory guideline range recommended by the Government or the 97 ||statutory mandatory minimum sentence, pursuant to this agreement, whichever is greater.” 28 Id. at 10:8-12. -4-

oil On March 26, 2018, the Court sentenced Petitioner to 48 months in prison. ECF No. 2 27; CV ECF No. 1 at 1. On April 27, 2018, the Court entered judgment accordingly. ECF 3 27; CV ECF No. 1 at 1. 4 Petitioner did not appeal. ECF No. 1 at 1. 5 On November 1, 2018, Petitioner filed this Motion, seeking to reduce her sentence 6 on the grounds of (1) harsh sentencing; (2) ineffective assistance of counsel; and (3) poor 7 || mental health. ECF No. 28 at 4-11; see also CV ECF No. 1 at 4-11. 8 IL LEGAL STANDARD 9 “A motion to attack a prison sentence made under section 2255 is a federal 10 prisoner’s substitute for a petition for a writ of habeas corpus.” Josephine R. Potuto, The || Federal Prisoner Collateral Attack: Requiescat in Pace, 1988 B.Y.U. L. Rev. 37, 37 (1988). Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 13 in violation of the Constitution or the laws of the United States; (2) was given by a court 14 |! without jurisdiction to do ‘so; (3) was in excess of the maximum sentence authorized by 15 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 16 ll Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). 17 If it is clear the movant has failed to state a claim, or has “no more than conclusory 18 allegations, unsupported by facts and refuted by the record,” a district court may deny a 19 § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 20 || (9th Cir. 1986); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (providing that 21 ||*if the record refutes the applicant’s factual allegations or otherwise precludes habeas 22 ll relief, a district court is not required to hold an evidentiary hearing”). Courts may deny 23 hearing where “the petitioner’s allegations, viewed against the record, fail to state a 24 claim for relief or are so palpably incredible or patently frivolous as warrant summary 25 || dismissal.” United States v. McMullen, 98 F.3d 1155, 1158-59 (9th Cir. 1996) (rejecting 26 appellant’s contention that the district court erred by denying the appellant an 27 || evidentiary hearing on his ineffective assistance of counsel claim because the appellant 28 || failed to allege specific facts entitling him to relief) (internal quotations and citations 5-

t omitted). The right to a hearing is earned by alleging “specific facts which, if true, would _ 2 entitle him [or her] to relief.” Id. 3 The Ninth Circuit has “consistently held that a § 2255 petitioner cannot challenge 4 nonconstitutional sentencing errors if such errors were not challenged in an earlier 5 proceeding.” See, e. g., McMullen, 98 F.3d at 1157 (holding that the because the appellant 6 |Ifailed to raise any objection regarding the type of methamphetamine, either at sentencing 7 Il or on direct appeal, he is barred from raising this issue in a § 2255 motion,” and “the 8 |! district court properly denied his motion to vacate his sentence on this ground.”). Thus, ? || “Petitioners waive the right to object in collateral proceedings unless they make a proper 10 objection before the district court or in a direct appeal from the sentencing decision.” Jd. 11 DISCUSSION 12 Petitioner argues that her plea should be vacated under 28 U.S.C. § 2255 (“Section 13 2255 ”’) because she (1) feels strongly that for a first time offender, her sentence was overly 14 || harsh for the crime committed, ECF No. 28 at 5, (2) received ineffective assistance of 15 counsel because her attorney did not request a mental evaluation for her, and she suffers 16 || from anxiety and depression, id. at 5, and (3) suffers from poor mental health, id. at 6. 17 || Petitioner’s Motion is DENIED. As an initial matter, harsh sentencing or poor mental 18 || health are not grounds upon which a defendant may seek to vacate, reduce, or correct a 19 || sentence. Further, the Court has no authority to reconsider or modify its sentence at this 20 point. See, e.g., 18 U.S.C. § 3582(c) (providing that “[t]he court may not modify a term 21 || of imprisonment once it has been imposed); see also Fed. R. Crim. P. 35(b) (providing 22 |) that the court can only reduce sentence “{u]pon the government’s motion”); Fed. R. Crim. 23 55(b)(2) (providing that “[t]he court may not extend the time to take any action under 24 Rule 35, except as stated in that rule”); Dolan v. United States, 560 U.S. 605, 623 □□□□□□□ 25 (Roberts, J., dissenting) (noting that “an error [in a sentencing] may be corrected by the 26 court only if it is ‘clear,’ and only within 14 days after the sentence is announced”); 27 || United States v. Gomez, No. 17CR2520-LAB-1, 2019 WL 1301756, at *1 (S.D. Cal. Mar. 28 1/21, 2019) (denying, without a hearing, the petitioner’s motion to vacate, set aside, or □ 6. .

J correct her 71 month prison sentence based on claims of (1) overly harsh sentencing, (2) 2 failure to receive the benefit of her minor role at sentencing, (3) denial of a mental 3 evaluation, and (4) ineffective assistance of counsel). As such, the only viable grounds + || for Petitioner’s Motion is the grounds asserting ineffective assistance of counsel. As analyzed below, however, although this claim is timely, itis procedurally barred. Further, 6 even if the claim were not procedurally barred, “petitioner’s allegations, viewed against 7 the record, fail to state a claim for relief’ and warrant “summary dismissal.” See 8 McMullen, 98 F.3d at 1158-59, 9 | A. Petitioner’s Motion Is Not Time Barred 10 A motion to vacate must be filed within one year from the date the conviction becomes final. 28 U.S.C. § 2255(f) (providing that “[a] 1-year period of limitation shall 12 apply to a motion under this section,” which will run from, inter alia, the date on which 13 judgment of conviction becomes final”). A conviction becomes final once the 14 |i deadline for filing the notice of appeal has expired. United States v. Gilbert, 807 F.3d 15 197, 1199 (9th Cir. 2015) (noting that the sentence “became a final judgment for habeas 16 purposes once the deadline for filing the notice of appeal expired 14 days later”); see also 17 |/Fep. R. App. P, 4(b)(1)(A) (providing that “[iJn a criminal case, a defendant’s notice of 18 |! appeal must be filed in the district court within 14 days after the later of . . . the entry of 19 judgment”). □ 20 Here, Petitioner’s conviction became final on May 11, 2018, or fourteen (14) days 21 || atter entry of the judgment on April 27, 20182. CV ECF No. | at 1. Thus, May 11, 2018, 22 || or fourteen (14) days after the judgment became final, was Petitioner’s deadline to file he1 23 || Notice of Appeal. FED. R. APP. P. 4(b)(1)(A). Petitioner did not file a notice of appeal. 24 CV ECF No. 1 at 1. Accordingly, the statute of limitations period for Petitioner to file □ 2 Although the judgment is signed by the judge on March 26, 2018, and the docket in this case reflects that the Court entered judgment on April 4, 2018, Petitioner indicated ir 27 || her Motion that the date of judgment was April 27, 2018. CV ECF No. 1 at 1. In an effort 08 to give Petitioner every benefit of the doubt when ruling on this Motion, the Court utilizes the later of these dates, or April 27, 2018. -7-

1 || motion to vacate under 28 U.S.C. § 2255 ended May 11, 20 19. 2 On November 1, 2018, Movant filed the instant Motion to Reduce her Sentence. 3 ECF No. 28 at 1; see also CV ECF No. 1 at 1. As a result, because she filed before the 4 May 11, 2019 deadline, her Motion.is not time-barred. However, Petitioner’s failure to 5 appeal raises a related issue of whether her Motion is barred by procedural default. □ 6 B. _Petitioner’s Motion Is Barred Due to Procedural Default 7 “The general rule in federal habeas cases is that a defendant who fails to raise a claim 8 direct appeal is barred from raising the claim on collateral review.” Sanchez-Llamas v. 9 || Oregon, 548 U.S. 331, 350-51 (2006). “Where a defendant has procedurally defaulted a 10 ||claim by failing to raise it on direct review, the claim may be raised in habeas only if the 11 |\defendant can first demonstrate either [1] ‘cause’ and actual ‘prejudice,’ or that [2] he is 12 || ‘actually innocent.’” Bousley v. United States, 523 U:S. 614, 622 (1998) (internal citations 13 omitted); see also Sanchez-Llamas, 548 U.S. at 350-51 (same); United States v. Ratigan, 14 ||351 F.3d 957, 962 (9th Cir. 2003) (holding that “[a] § 2255 movant procedurally defaults 15 ||his claims by not raising them on direct appeal and not showing cause and prejudice or 16 actual innocence in response to the default”). Here, Petitioner’s Motion makes no claims 17 || of actual innocence, which would contradict the record in this case, including her guilty 18 |/plea. See CV ECF No. 1. As such, Petitioner must make a showing of cause and actual 19 || prejudice to overcome her procedural default. 20 “Constitutionally ineffective assistance of counsel constitutes cause sufficient tc 21 ||excuse a procedural default.” Ratigan, 351 F.3d at 964-65; see also Potuto, B.Y.U. L 22 || Rev. 37 (providing that “[t]he Supreme Court so far has recognized only two claims fot 23 cause sufficient to permit collateral review despite a default: (1) ineffective assistance □□ 24 |)counsel, and (2) an objective factor ‘external to the defense’ that produced the default”) 25 || Thus, in order to excuse her procedural default, a petitioner “must show that counsel’: 26 |jperformance was deficient and that the deficient performance prejudiced the 27 ||defense.” Ratigan, 351 F.3d at 964-65 (citing Strickland v. Washington, 466 U.S. 668 28 || 687 (1984)). In Ratigan, the petitioner argued his counsel’s performance was deficien -8-

4 because he failed to object to certain issues, namely, the insufficiency of proof offered by 2 government, Id. at 964-65. Nonetheless, the Court did not find this potential failing 3 ||on the defense counsel’s part to warrant overcoming the procedural default: “His counsel’s 4 failure to recognize every possible legal argument, including the arguably insufficient 5 || proof offered by the government as to one element of the crime, does not, however, 6 |/constitute cause.” Ratigan, 351 F.3d at 965, Rather, “[t]he mere fact that counsel failed to 7 ||recognize the factual or legal basis for the claim, or failed to raise the claim despite 8 |lrecognizing it, does not constitute cause for a procedural default.” Jd. (quoting Cockett v. 9 || Ray, 333 F.3d 938, 943 (9th Cir.2003)). Thus, the Ratigan court concluded that the alleged 10 ||/errors were not so serious as to deprive the appellant of a fair trial, and as a result, the lt || ineffective assistance claim was not supported by the record. Ratigan, 351 F.3d at 965. 12 || Accordingly, the appellant “failed to show that he should be excused from his procedural 13 |\default.” Jd. Similarly, in United States v. McMullen, the Ninth Circuit held that the 14 |}because the appellant “failed to raise any objection regarding the type of [5 ||methamphetamine, either at sentencing or on direct appeal, he [was] . . barred from raising 16 issue in a § 2255 motion.” 98 F.3d at 1157. As a result, the Ninth Circuit held that 17 district court properly denied his motion to vacate his sentence on this ground.” Jd. 18 Here, just like the petitioners in Ratigan and McMullen, who also tried to raise jlineffective assistance of counsel claims through a Section 2255 motion without having 20 |/raised the claim on direct appeal first, Petitioner did not file a notice of appeal. CV ECF 21 1 at 1. Thus, this Court must deny Petitioner’s Motion, like the motions in Ratigar 22 and McMullen, unless she can show cause or prejudice. However, for the reasons outlined 23 ||below, the Court finds Petitioner has made no such showing because her claims of 24 ineffective assistance fail. More importantly, her claims of ineffective assistance do not 25 j|relate to the negotiation of the plea agreement. See, e.g. Washington v. Lampert, 422 □□□□ 26 864, 870 (9th Cir. 2005) (holding that “in the context of § 2255 challenges brought by 27 federal prisoners, that waivers cannot bar IAC claims associated with the negotiation of plea agreements”). As a result, her claims have fallen victim to the bar of □□□□□□□□□□ -9-

1 }\default. Further, as analyzed below, Petitioner, fails to establish ineffective assistance of 2 || counsel. 3 C. Petitioner Waived Her Claims Related to Overly Harsh Sentencing and Mental Health . . 5 To the extent Petitioner attempts to collaterally attack her conviction or sentence, 6 she waived her right to do so, See United States v. Navarro-Botello, 912 F.2d 318, 321 4 (9th Cir. 1990) (waiver of a right to appeal does not violate due process); United States v. 8 Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (“[P]lea agreements are contractual in nature 9 and are measured by contract law standards”) (internal quotations omitted). 10 In this case, in Petitioner’s plea agreement, Petitioner agreed that she waived “all rights to appeal and to collaterally attack every aspect of the conviction and sentence.” ECF No. 16 at 11. However, the plea agreement contained exceptions, which allowed her 13 to appeal (1) “a custodial sentence above the greater of 71 months or the mandatory minimum term, if applicable” or (2) “the conviction or sentence on the basis that defendant 15 received ineffective assistance of counsel.” Jd. Therefore, Petitioner’s claims arising out 16 of (1) a general view that her sentence was overly harsh? and (2) poor mental health were 17 18 To the extent that Petitioner argues her sentence was overly harsh, the Court notes 19 || that Petitioner was charged with violation 21 U.S.C. §§ 952 and 960. Section 960 provides 20 that where “[a]ny person who . . . knowingly or intentionally imports or exports a controlled substance .... 50 grams or more of methamphetamine,” that “person committing such 21 || violation shall be sentenced to a term of imprisonment of not less than 10 years and not more than life.” 21 U.S.C. § 960({a)-(b). Thus, the mandatory minimum term of imprisonment for Petitioner’s crimes was 10 years. Id. The Federal Sentencing Guidelines 23 ||Manual, however, provides that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily requirec minimum sentence shall be the guideline sentence.” U.S. SENT’G GUIDELINES MANUAL § 25 ||5G1.1(b), (c)(2). Thus, even though under the Sentencing Guidelines, Petitioner’s total 06 offense level of 31 and Criminal History Category I indicated a guideline imprisonment o: 108 months to 135 months, because the statutory minimum was greater than the guideline. 27 || the Court was required to impose the statutory minimum of 10 years or 120 months. Yet 28 Petitioner received a sentence of 4 years. As such, the Court finds that even for a first-time offender, Petitioner’s argument that her sentence is overly harsh does not hold water. -10-

1 |) waived pursuant to the waiver of right to collaterally attack her sentence in the plea 2 agreement. Nonetheless, a claim of ineffective assistance of counsel was preserved for 3 || collateral attack, 4 D. Petitioner Has Failed to Present Evidence of Ineffective Assistance of Counsel 6 “The Sixth Amendment, applicable to the States by the terms of the Fourteenth 7 Amendment, provides that the accused shall have the assistance of counsel in all criminal 8 || prosecutions.” Missouri v. Frye, 566 U.S. 134, 138 (2012). That “right to counsel is the 9 right to effective assistance of counsel,” Missouri, 566 at 138 (citing Strickland, 466 U.S. 686), and applies to all critical stages of criminal proceedings, including “the IT consideration of plea offers.” Missouri, 566 U.S. at 138, 0 □ The Supreme Court has held “that the two-part Strickland v. Washington test applies 13 challenges to guilty pleas based on ineffective assistance of counsel,” Hill v. Lockhart, 14 474 U.S. 52, 58-59 (1985); see also Missouri, 566 U.S. at 138 (same). Under this test, “a 13 |i defendant who pleads guilty upon the advice of counsel may only attack the voluntary and 16 intelligent character of the guilty plea by showing that the advice he received from counsel ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004) (quoting Hill, 18 |1474 USS. at 56-57); see also Tollett v. Henderson, 411 U.S. 258, 266 (1973) (providing 19 that “after a criminal defendant pleads guilty, on the advice of counsel, he is not 20 automatically entitled to federal collateral relief”; rather, “Tt]he focus of federal habeas 21 inquiry is the nature of the advice and the voluntariness of the plea, not the existence as 22 |i such of an antecedent constitutional infirmity”). Thus, in a claim of ineffective assistance 23 |! of counsel arising out of a defendant’s guilty plea, the defendant must meet the Stricklana 24 by showing that (1) under an objective standard, “counsel’s assistance was not within 25 the range of competence demanded of counsel in criminal cases” and (2) the defendant 26 suffered actual prejudice because of this incompetence. Lambert, 393 F.3d at 979-80: 27 || Lockhart, 474 U.S. at 57-58. “Unless a defendant makes both showings, it cannot be said 28 || that the conviction . . . resulted from a breakdown in the adversary process that renders the -11-

I | -esult unreliable.” Strickland, 466 U.S. at 687. 2 With respect to the first factor, “[w]hen a convicted defendant complains of the 3 ineffectiveness of counsel’s assistance, the defendant must show that counsel’s 4 representation fell below an objective standard of reasonableness.” Strickland, 466 U.S, at 5 ||687-88. This involves proving “that counsel’s performance was deficient,” by “showing © ||that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 7 guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also 8 || Jaea v. Sunnn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland). Only where counsel 9 makes such serious errors that he or she is “not functioning as the counsel guaranteed by 10 the Sixth Amendment” will a court find deficient performance. Jaea, 800 F.2d at 864. Accordingly, courts review claims of ineffective assistance of counsel under a “strong 12 presumption that counsel’s conduct falls within the wide range of reasonable professional 13 assistance.” Staten v. Davis, 962 F.3d 487, 495 (9th Cir. 2020); see also Strickland, 466 14 at 689 (providing that “[jJudicial scrutiny of counsel’s performance must be highly 15 deferential”). The Court should not view counsel’s actions through “the distorting lens of 16 hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir, 1995) (quoting Deutscher 17 Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)), vacated on other grounds by Angelone v. 18 || Deutscher, 500 U.S. 901 (1991). 19 -As to the second factor, “in order to ‘satisfy the ‘prejudice’ requirement, 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. 22 |lat 58-59. “The purpose of the Sixth Amendment guarantee of counsel is to ensure that ¢ 23 ||defendant has the assistance necessary to justify reliance on the outcome of the 24 |! proceeding.” Strickland, 466 U.S. at 691-92. “A convicted defendant making a claim o! 25 llineffective assistance must identify the acts or omissions of counsel that are alleged not tc 26 ||have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690 27 || Then, the court must evaluate “whether, in light of all the circumstances, the identified act: 28 || or omissions were outside the wide range of professionally competent assistance.” Jd. -12-

While the Court would normally analyze a claim of ineffective assistance of counsel 2 under the two-pronged test set forth by the Strickland court, Petitioner made no specific elaims of (1) deficient performance or (2) prejudice. Instead, Petitioner claims that (1) her

. 4 attorney did not request a mental evaluation for her, and she suffers from anxiety and severe 5 depression, which she is being treated for in prison, (2) her attorney did not explain her 6 || case to her so she could understand what was happening, and (3) she was told to sign a plea 7 agreement so she would not get more than ten years. ECF No. 1 at 5. The Court analyzes 8 why each of these claims, when viewed in light of the record, fails to support a claim for ineffective assistance of counsel. 10 First, Petitioner claims that her attorney did not explain her case to her so she could 1] understand what was happening. CV ECF No. 1 at 6. Despite these statements, even 12 assuming that her attorney had not explained what was happening to Petitioner, she fails to 13 allege that she did not understand what was happening in her case. To the contrary, the 14 record indicates she understood what was happening. At the sentencing hearing, both 15 | Petitioner and her attorney agreed that she had waived her right to appeal and collaterally 16 |i attack the judgment. ECF No. 26. Further, while at the sentencing hearing, Petitioner 17 herself stated, “And I want to thank my attorney for everything he has done on my behalf.” 18 Thus, the record indicates that she was satisfied with her representation, Even still, 19 law in similar circumstances has found general claims of a failure to explain 20, insufficient to support a claim of ineffective assistance of counsel. For instance, in United 21 || States v. Gomez, the defendant likewise stated, “I didn’t know much of what was going on 22 || and she didn’t explain to me so | can better understand them.” No. 17CR2520-LAB-1, 23 |/2019 WL 1301756, at *2 (S.D. Cal. Mar. 21, 2019). The court noted that “[m]ost criminal 24 || defendants do not understand court proceedings very well, and they often appear “intricate, 25 |i complex, and mysterious’ to non-lawyers, which is why counsel are appointed for them.” 26 \\/d. (internal citations omitted).. Nonetheless, “attorneys do not need to explain every aspect 27 |lof a case, or even most aspects, to their clients; they only need to explain as much as 4 28 client needs to know.” Jd. The court pointed out that that the petitioner’s claim had “not . -13-

1 pointed to any error by her attorney, much less an unprofessional one.” Jd. Accordingly, 2 because “[clonclusory claims such as this do not warrant relief,” the court denied the 3 petitioner’s motion. Jd. (citing United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 4 1993)). Similarly, here, Petitioner fails to point “to any error by her attorney, much less an 5 unprofessional one,” Gomez, 2019 WL 1301756 at *2, and as such, this Court, like the © || Gomez court, finds that Petitioner’s vague claim that her attorney failed to explain things 7 to her fails to support a claim of ineffective assistance of counsel. 8 Second, Petitioner claims she was told to sign the plea agreement so she would not ? | get more than 10 years. CV ECF No. 1 at 6. However, Petitioner does not claim that her 10 signing of the plea agreement was not voluntary. Jd. She also does not claim she was 11 coerced into Signing the agreement. Additionally, the magistrate judge, who had an 12 opportunity to observe Petitioner’s demeanor, found that her guilty plea was made 13 | knowingly and voluntarily. ECF No. 17 at 4:5-13. Thus, any claim that her guilty plea 14 |) was not voluntary is belied by the record in this case. 15 Third, Petitioner claims that her attorney did not request a mental evaluation for her, 16 and she suffers from anxiety and severe depression, which she is being treated for in prison. 17 || ECF No. 1 at 5. However, Petitioner fails to argue how her attorney’s failure to secure a 18 || mental evaluation would have changed (1) her decision to plead guilty and/or (2) the 19 || outcome of a trial, if she had chosen to pursue one. Because she fails to show that she 20 || would have gone to trial and would not have pled guilty had it not been for her counsel’s 21 || conduct, her claim of ineffective assistance of counsel fails. Not only was defense counsel 22 effective, but defense counsel also secured a favorable plea deal for Petitioner. This deal 23 || enabled Petitioner to secure a sentence almost half the length of the mandatory minimum 24 sentence. Further, other courts have also held claims of a failure to secure a ‘mental 25 || evaluation as failing to substantiate a claim of ineffective assistance of counsel. 26 For instance, in United States v. Gordon, 793 F. App’x 471, 473-74 (9th Cir 27 2019), cert. denied sub nom. Gordon v. United States, No. 20-5530, 2020 WL □□□□□□□ 28 (U.S. Oct. 13, 2020), the court noted that a district court abuses its discretion by denying -14-

1 necessary expert services where “reasonably competent counsel would have required the 2 assistance of the requested expert for a paying client,”.and the defendant “was prejudiced 3 by lack of expert assistance,” Id. at 473. However, the petitioner in Gordon failed to show 4 prejudice from a failure to conduct a mental examination because “[h]e received a pre- > |l trial mental-health evaluation, which the district court reviewed, . . . [which] summarized © | Gordon’s medical history, including mental health, as well as his history of substance 7 || abuse.” Gordon, 793 F. App’x at 473-74. Thus, “[a]t sentencing, the district court 8 discussed Gordon’s difficult upbringing and recommended that the Bureau of Prisons ? | conduct a mental-health evaluation.” Jd. at 474. However, the petitioner did “not show 10 how a second mental-health evaluation would have caused the district court to consider mitigating factors that it had not already weighed.” Jd. Similarly, here, the Court reviewed 12 lla detailed Presentencing Investigation Report, ECF No. 18, which like the report in 13 Gordon, detailed Petitioner’s medical history, including her mental health and history of 14 substance abuse. Thus, Petitioner, like the Gordon petitioner, cannot show a mental health 13 || examination would have caused this Court to consider mitigating factors that it had not 16 already weighed. 17 As another example, in Gomez, the petitioner, like Petitioner here, pled guilty 18 || pursuant to a plea agreement to one count of importation of methamphetamine in violation 19 |l of 21 U.S.C. §§ 952 and 960, and subsequently filed a petition to vacate her sentence 20 pursuant to 28 U.S.C. § 2255. 2019 WL 1301756 at *1. The Gomez petitioner also argued, 21 | inter alia, that “she was denied a mental evaluation before signing her plea agreement.” 22 at *1. Like Petitioner here, “[t]he only basis for such an evaluation that she has 23 identified is severe depression.” Jd. at *1. The court denied the petitioner’s motion because 24 ||“Telven assuming she was suffering from severe clinical depression at the time she decided 25 |\to plead guilty, she does not identify any facts that would have made her decision anything 26 || other than knowing and voluntary.” Jd. Although the Gomez petitioner had never been 27 treated for her depression, while Petitioner here had been treated for six months for het 28 mental health issues, ECF No. 18 at 7, Petitioner still fails to identify any facts indicating . ~-15-

1 that (1) she suffered from depression at the time she pled guilty and/or (2) such depression 2 anxiety caused her guilty plea to be anything other than knowing and voluntary. 3 More importantly, “depression alone is very unlikely to render a plea involuntary.” 4 Tanner v. McDaniel, 493 F.3d 1135, 1146 (9th Cir. 2007); see also United States v. Torres, > F. App’x 541 (9th Cir, 2017) (holding that the petitioner’s “claim that he suffered from 6 untreated depression when he pleaded guilty does not render his plea involuntary”). In 7 \\ Tanner v. McDaniel, the defendant argued “that a rational defendant in his position would 8 |lhave wished to appeal the voluntariness of his plea based on the lack of a competent 9 psychological evaluation, Tanner's depression at the time of the plea and during the crimes, 10 | and Tanner’s substance abuse during the crimes.” Id. at 1145-46. The court noted that first, if defendant was challenging the validity of his guilty plea in the district court, he 12 || should have done so “by bringing a motion to withdraw the guilty plea, or by initiating a 13 post-conviction proceeding.” Jd. at 1145. The court further pointed out that even if the 14 || defendant could have challenged the voluntariness of his plea on appeal, “his allegations 13 || do not suggest that a rational defendant in his position would have wished to do so,” noting 16 || that his “main allegation ts that he was suffering from depression when he pleaded guilty.” 17 The court reasoned that he “would have to show that his depression rendered him 18 jl unable to make the decision to plead guilty freely and intelligently.” Jd. at 1145-46. 19 || However, “[t]he record of the plea hearing indicates the opposite: that Tanner lucidly and 20 |i voluntarily plead guilty.” Id. at 1146. 21 Similar to the magistrate judge in Tanner, which observed that the defendant, despite 22 |! his depression, lucidly and voluntarily pled guilty, Magistrate Judge Stormes, who had an 23 || opportunity to observe Petitioner’s demeanor, found that she was competent to enter a plea, 24 |! and that her guilty plea was made knowingly and voluntarily. ECF No. 17 at 4:5-13. 25 Finally, in United States v. Flores-Acuna, a federal prisoner appealed the denial o! 26 ||his Section 2255 motion as well as the court’s decision not to hold an evidentiary hearing 27 || asserting “that he was prejudiced by counsel’s failure to present evidence of his menta. 28 || deficit to the jury.” 637 F. App’x 325 (9th Cir. 2016). In Flores, after trial, a clinical anc -16-

| ll forensic psychologist evaluated the defendant and concluded that his low test results 2 suggested that his intellectual functioning fell “within the mentally retarded range.” Id. at 3 325. In ruling on the petitioner’s motion, the district court held that “[nJothing in Dr. Yanofsky’s evaluation renders trial counsel’s professional judgment not to further 5 investigate Defendant’s mental capacity outside the wide range of reasonable professional 6 |l assistance guaranteed by the Sixth Amendment.” United States v. Flores-Acuna, No. 10- 7 CR-2920-WQH, 2014 WL 4355583, at *5 (S.D. Cal. Sept. 2, 2014) (Hayes, J.), □□□□□□ 637 8 App’x 325 (9th Cir. 2016). The district court noted that even if it were “to assume that 9 trial counsel’s decision not to further investigate Defendant’s mental capacity fell below an objective standard of reasonableness, there is not a reasonable probability that the result 1! this case would have been different.” Id. as *7. As result, the Court found “that 12 |'Defendant’s trial counsel acted within the ‘wide range of reasonable representation’ 13 required under the Sixth Amendment.” Jd. (citing United States v. Ferreira~Alameda, 815 14 1251, 1253 (9th Cir. 1986)). On appeal, the Ninth Circuit likewise concluded that it 13 “not reasonably probable that, had the jury been presented with evidence from the 16 psychological report, the outcome of the trial would have been different.” Flores, 637 F. 17 App’x at 326. “Accordingly, even assuming trial counsel’s performance was deficient, 18 |/Flores~Acuna cannot establish the requisite prejudice under Strickland.” Jd. The court -19 |/also affirmed the district court’s decision to deny the petitioner an evidentiary hearing. Jd. 20 In Flores-Acuna, even though subsequent mental examinations showing the 21 defendant fell within the range for mental retardation, the Ninth Circuit still upheld the 22 |i district court’s decision that the defense counsel’s failure to present evidence of mental 23 l\health issues did not qualify as ineffective assistance of counsel. Here, not only has 24 || Petitioner failed to advance any claims that she was mentally incompetent to enter her plea, 25 “depression. alone is [also] very unlikely to render a plea involuntary.” Tanner, 493 26 ||F.3d at 1146. Thus, the Court finds that Petitioner’s claims that her counsel failed ta 27 || conduct a mental examination of her do not substantiate an ineffective assistance of counse! 28 claim. Such claims are also belied by the record, which confirm that she voluntarily and -17-

1 knowingly entered a guilty plea, was deemed competent by both the magistrate and district 2 judge, and even thanked her counsel for his representation at the sentencing hearing. 3 E. Petitioner Is Not Entitled to an Evidentiary Hearing □ 4 Petitioner has failed to provide the Court with credible evidence to substantiate her claims of ineffective assistance of counsel. Instead, she has provided the Court with 6 nothing more than conclusory allegations, which fail to warrant an evidentiary hearing. Cf 7 Blackledge v. Allison, 431 U.S. 63, 74 (1977) (providing that “[s]olemn declarations in 8 open court catry a strong presumption of verity” such that “[t]he subsequent presentation 9 of conclusory allegations unsupported by specifics is subject to summary dismissal, as are 10 || contentions that in the face of the record are wholly incredible”). Because the Court finds 11 || sufficient information in the record to allow the Court to rule on Petitioner’s Motion, the 12 || Court denies Petitioner’s Motion without an evidentiary hearing. See United States v. 13 | Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (noting that courts are not required to hold 14 evidentiary hearing when ruling on a Section 2255 motion where the claims could “be 13 || conclusively decided on the basis of documentary testimony and evidence in the record”); 16 || United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989) (per curiam) (reiterating that 17 |! district courts are not required to hold an evidentiary hearing if the allegations fail to state 18 a claim for relief). 19 CONCLUSION 20 || For the above reasons, the Court DENIES Petitioner’s Motion to Vacate, Set Aside. 21 Correct Sentence. . 22 Because the Court finds there is sufficient information on the record to demonstrate 23 || Petitioner was not entitled to a mental evaluation, Petitioner’s Motion is DENIED without 24 |! an evidentiary hearing. 25 Finally, the Court DENIES Petitioner a certificate of appealability. A defendant is 26 |\required to obtain a certificate of appealability in order to appeal a decision denying □ 27 || motion under 28 U.S.C. § 2255. A court may issue a certificate of appealability where the 28 ||movant has made a “substantial showing of the denial of a constitutional right,” anc -18-

1 ||reasonable jurists could debate whether the motion should have been resolved differently, 2 that the issues presented deserve encouragement to proceed further. See Miller-El v. _ 3 || Cockrell, 337 U.S. 322, 335 (2003). This Court finds that Movant has not made the 4 |I necessary showing. A certificate of appealability is therefore DENIED. ° IT IS SO ORDERED. DATED: October Ab 2020 é 7 “BENITEZ g □ nited States District Judge

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