The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR
CORRECT A SENTENCE BY A PERSON IN
FEDERAL CUSTODY UNDER 28 U.S.C. § 2255
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255
Benjamin Acuna is currently serving a 384-month (32-year) sentence. He was convicted of conspiring to distribute methamphetamine and to commit money laundering. Acuna now seeks to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground that his trial counsel provided ineffective assistance. The court denies his motion.
Acuna was indicted on November 17, 2007. A superseding indictment, filed on July 2, 2008, charged Acuna with conspiring to distribute and possess with intent to distribute 50 grams of more of methamphetamine, its salts, isomers, and salts of its isomers (Count 1), and conspiring to commit money laundering (Count 3). Counts 2 and 4 sought criminal forfeiture of the proceeds and property derived from his criminal activities if he was convicted of Counts 1 and 3.
Acuna pled not guilty, and a jury trial commenced on August 6, 2008. The United States presented evidence showing Acuna's leadership role in a sophisticated conspiracy to transport thousands of pounds of methamphetamine from Mexico to Las Vegas, then to Oahu. Acuna and some of his co-conspirators were alleged to have owned stores in Nevada that they used to hide the income they derived from their drug sales.
On September 2, 2008, a jury convicted Acuna of Counts 1 and 3, and found him subject to criminal forfeiture for obtaining $8 million in proceeds, property in Nevada, and money held in various bank accounts from the drug and money laundering conspiracies. See ECF Nos. 370, 386.
This court held a sentencing hearing on January 5, 2009. With respect to Count 1, the court sentenced Acuna to 384 months in prison and five years of supervised release. With respect to Count 3, Acuna was sentenced to 240 months in prison and three years of supervised release. The terms are being served concurrently. On December 15, 2010, the Ninth Circuit affirmed Acuna's conviction and sentence. See ECF No. 636.
On February 13, 2012, Acuna moved to vacate his sentence pursuant to 28 U.S.C. § 2255, on the ground that his counsel's ineffectiveness had denied him his Sixth Amendment right to counsel. He seeks an evidentiary hearing. This court conducted a telephone hearing at which Acuna, proceeding pro se, presented arguments through an interpreter. No live testimony was taken, and the court finds this matter suitable for disposition without an evidentiary hearing. The court now denies Acuna's motion.
A federal prisoner may move to vacate, set aside, or
correct his or her sentence if it "was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255. A petitioner must allege specific facts that, if true, entitle the petitioner to relief. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citing United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).
A judge may dismiss a § 2255 motion if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Section 2255 Rules. A court need not hold an evidentiary hearing if the allegations are "palpably incredible or patently frivolous," or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia--Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a "district court has discretion to deny an evidentiary hearing on a § ...