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Perez v. United States

United States District Court, D. Utah

January 11, 2017

REBECCA LOUISE PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:14-CR-435 TS

          MEMORANDUM DECISION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY.

          Ted Stewart United States District Judge.

         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         Petitioner was charged with possession of methamphetamine with intent to distribute on August 20, 2014. On September 4, 2014, the government filed an Information pursuant to 21 U.S.C. § 851(a)(1), informing Petitioner that she faced increased punishment as a result of a California felony conviction for possession of a controlled substance.

         Petitioner pleaded guilty on September 22, 2014. On December 2, 2014, Petitioner was sentenced to the minimum mandatory term of 10 years.

         Petitioner filed a direct appeal and the Office of the Federal Public Defender was appointed to represent her. Petitioner later voluntarily withdrew her appeal and it was dismissed on June 22, 2015. Petitioner timely filed the instant Motion on June 23, 2016.[1]

         II. DISCUSSION

         Petitioner's Motion raises six claims for ineffective assistance of counsel. First, Petitioner contends that her counsel was ineffective for failing to file a petition under California Proposition 47, resulting in a higher sentence. Second, counsel failed to show or discuss the discovery with her. Third, counsel failed to explain the presentence report with Petitioner. Fourth, counsel failed to object to factual disputes and legal issues in the presentence report. Fifth, counsel failed to follow the Court's orders to file an appeal. Sixth, counsel failed to provide any defense for Petitioner.

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To determine ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[2] To establish prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[3]

         A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.[4] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[5] Finally, there is “a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[6]

         A. PROPOSITION 47

         Petitioner was charged with a violation of 21 U.S.C. § 841(a)(1), punishable by 21 U.S.C. § 841(b)(1)(B). This resulted in a five year minimum mandatory term. However, as stated, the government filed an Information pursuant to 21 U.S.C. § 851(a)(1), putting Petitioner on notice that she was subject to increased punishment based on a prior felony drug conviction. Under 21 U.S.C. § 841(b)(1)(B), any person who commits a violation of § 841 “after a prior conviction for a felony drug offense has become final” is subject to a term of imprisonment of not less than ten years.

         The conviction relied upon in the government's Information was a 2005 California felony conviction for possession of a controlled substance. Except as discussed below, there is no question that Petitioner committed a violation of § 841 after a felony drug offense had become final. However, Petitioner argues that her counsel was ineffective for failing to seek a reduction of her offense under California's Proposition 47.

         Proposition 47 “permits previously-convicted defendants to petition the court for a ‘recall of sentence, ' which, if granted, would effectively reclassify their qualifying felonies as misdemeanors.”[7] Petitioner argues that, had her counsel sought a reclassification of her prior conviction, she would not have been subject to a ten year minimum mandatory sentence. Petitioner's argument misstates the effect of a change in state law in determining her federal sentence.

         “The question posed by § 841(b)(1)[(B)] is whether the defendant was previously convicted, not the particulars of how state law later might have, as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set aside.”[8] Thus, “a state making a change to a state conviction, after it has become final, ‘does not alter the historical fact of the [prior state] conviction' becoming final-which is what § 841 requires.”[9] The Tenth Circuit has held that even where a state has expunged a prior conviction, the conviction remains relevant to a determination of whether a defendant has a prior conviction under §841(b).[10] The Ninth Circuit has recently addressed the application of Proposition 47 to § 841. It held that “California's Proposition 47, offering post-conviction relief by reclassifying certain past felony convictions as misdemeanors, does not undermine a prior conviction's felony-status for purposes of § 841.”[11]

         Based on this, the Court cannot conclude that counsel's performance was deficient in failing to seek a reduction under Proposition 47. Even if counsel's performance was deficient, Petitioner has failed to demonstrate prejudice. Any reclassification of her prior conviction would not affect the historical fact that Petitioner had a prior ...


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