At page 1157 Reviewing nonconstitutional sentencing errors under section 225552 citing cases“(1) the defendant must show that counsel's representation fell below an objective standard of reasonableness; and (2) the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”
- Nathan Manuelito v. United States, 656 F. App'x 872 (9th Cir. 2016).unpublished(Establishing the elements of an ineffective assistance of counsel claim normally will meet [the] cause and prejudice test)
- Daza-Cortez v. United States, No. 2:18-cv-01608 (W.D. Wash. Feb. 22, 2021).“a 2255 petitioner cannot challenge non-constitutional sentencing 20 errors if such errors were not challenged in an earlier proceeding”
- United States v. Jess A. Rodrigues, 347 F.3d 818 (9th Cir. 2003).published This standard requires the defendant to do more than simply allege a “conflict” or baldly assert that the asserted conflict had an “adverse effect.” See id. (“There would be no point in raising the issue, and hence no ineffective assistanc…
- United States v. Chow, No. 24-4225 (9th Cir. May 26, 2026).unpublishedSee United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014); United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (citing United States v. Blaylock, 20 F.3d 1458 , 1464-65 (9th Cir. 1994)).
- Johnson v. United States, No. 1:23-cv-00374 (D. Idaho June 27, 2025).United States v. Frady, 456 U.S. 152, 165 (1982); United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996); see also Berry, 624 F.3d at 1038 (holding “§ 2255 may not be used as a chance at a second appeal”).
- Grimm v. United States, No. 2:18-cv-02124 (D. Nev. May 27, 2022).As those “additional grounds” serve primarily to bolster Grimm’s overarching grounds for relief, the 1 the [petitioner] ‘must show that there is a reasonable probability that, but for counsel’s 2 unprofessional errors, the result of the pr…
- United States v. Galvin Gibson, No. 19-56249 (9th Cir. Sept. 7, 2021).unpublishedSee Dow v. Virga, 729 F.3d 1041, 1049 (9th Cir. 2013) (Napue); United States v. Williams, 547 F.3d 1187 , 1202 n.12 (9th Cir. 2008) (Brady); United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (IAC).
- Bell v. United States, No. 2:19-cv-01931 (D. Nev. Dec. 30, 2020).Id. 8 To successfully invoke ineffective assistance of counsel, a petitioner must demonstrate that 9 1) “‘counsel’s representation fell below an objective standard of reasonableness’” and 2) “‘there 10 is a reasonable probability that, but…
- Fernandez-Perez v. United States, No. 3:19-cv-00127 (S.D. Cal. Nov. 6, 2020). The Ninth Circuit has “consistently held that a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding.” See, e.g., McMullen, 98 F.3d at 1157 (holding that the bec…
- Cruz-Venegas v. United States, No. 3:18-cv-02511 (S.D. Cal. Oct. 26, 2020). 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. McMull…
Show 42 more citing cases
- Castro v. United States, No. 3:19-cv-00749 (S.D. Cal. Oct. 26, 2020).The right to a hearing is earned by alleging “specific facts which, if true, would 23 entitle him [or her] to relief.” Id. 24 The Ninth Circuit has “consistently held that a § 2255 petitioner cannot challenge 25 nonconstitutional sentencin…
- United States v. Brandon Buckles, No. 18-36024 (9th Cir. May 12, 2020).unpublishedAccordingly, Buckles’ trial counsel was not ineffective in making the strategic decision to stipulate to the fact that Buckles is an “Indian person.” See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996).
- Punzalan v. United States, No. 1:11-cv-00039 (D. Guam Feb. 24, 2014).The Ninth 1 Circuit has “consistently held that a § 2255 petitioner cannot challenge nonconstitutional 2 sentencing errors if such errors were not challenged in an earlier proceeding.” United States v. 3 McMullen, 98 F.3d 1155, 1157 (9th C…
- Lerma v. Palmateer, 118 F. App'x 174 (9th Cir. 2004).unpublishedUnited States v. McMullen, 98 F.3d 1155, 1157 (9th Cir.1996).
- United States v. Gonzalez-Garcia, 83 F. App'x 915 (9th Cir. 2003).unpublishedUnited States v. McMullen, 98 F.3d 1155,1157 (9th Cir.1996).
- United States v. Panaro, 75 F. App'x 590 (9th Cir. 2003).unpublishedAthough such a failure would have resulted in a forfeiture of the issue before the district court and hence on direct appeal (United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994)), an ineffective-assistance-of-counsel claim is a c…
- United States v. McCullough, 40 F. App'x 566 (9th Cir. 2002).unpublishedUnited States v. McMullen, 98 F.3d 1155, 1157 (9th Cir.1996).
- United States v. Racich, 35 F. Supp. 2d 1206 (S.D. Cal. 1999).publishedIn other words, the government argues that Petitioner procedurally defaulted on his Rule 11 arguments. “[A] § 2255 petitioner [generally] cannot challenge nonconstitutional ... errors if such errors were not challenged in an earlier procee…
- Reece v. United States, 119 F.3d 1462 (11th Cir. 1997).published
- United States v. Vincent Peter Camacho, 114 F.3d 1196 (9th Cir. 1997).unpublished
- United States v. Lillard, 132 F.3d 41 (9th Cir. 1997).unpublished
- United States v. Leon Paul Meier, 103 F.3d 142 (9th Cir. 1996).unpublished
- United States v. Robert Dasilva, 104 F.3d 366 (9th Cir. 1996).unpublished
- United States v. Roy Eugene Tuck, 106 F.3d 411 (9th Cir. 1997).unpublished
- United States v. Jaime Lopez Carrillo, 110 F.3d 70 (9th Cir. 1997).unpublished
- United States v. David Lloyd Williams, 112 F.3d 518 (9th Cir. 1997).unpublished
- United States v. John Albert Shope, 113 F.3d 1244 (9th Cir. 1997).unpublished
- 97 Cal. Daily Op. Serv. 4364, 97 Daily Journal D.A.R. 7281 United States of Am. v. Richard Lee Scrivner, United States of Am. v. Barbara Lammsies Scrivner, United States of Am. v. George Michael Gray, 114 F.3d 964 (9th Cir. 1997).published
- United States v. Ruben Mendez Paz, 117 F.3d 1426 (9th Cir. 1997).unpublished
- United States v. Robert Ray Buker, 120 F.3d 269 (9th Cir. 1997).unpublished
- United States v. Samuel Weissberg, 122 F.3d 1075 (9th Cir. 1997).unpublished
- 97 Cal. Daily Op. Serv. 7128, 97 Daily Journal D.A.R. 11,509 Gerald Armond Gallego v. E.K. McDaniel Warden, Ely State Prison Ron Angelone, Dir., Nevada Dep't of Prisons Frankie Sue Del Papa, Attorney Gen. of the State of Nevada, 124 F.3d 1065 (9th Cir. 1997).published
- United States v. Brian Everett Malone, 133 F.3d 930 (9th Cir. 1997).unpublished
- United States v. Miguel Adolf Valdez-Pacheco, 134 F.3d 381 (9th Cir. 1998).unpublished
- United States v. Jeremiah A. Jacobs, 136 F.3d 1187 (8th Cir. 1998).published
- Joseph A. Gallo v. Peggy L. Kernan, Warden, 141 F.3d 1175 (9th Cir. 1998).unpublished
- Wayne Douglas Easley v. United States, 141 F.3d 1175 (9th Cir. 1998).unpublished
- United States v. William Boyd Fillingame, Jr., AKA Lonnie Allen Hutchens, AKA Randy Hutchens, 141 F.3d 1180 (9th Cir. 1998).unpublished
- United States v. James Dannals, 141 F.3d 1180 (9th Cir. 1998).unpublished
- United States v. Javier Villa-Guerrero, 142 F.3d 447 (9th Cir. 1998).unpublished
- United States v. Patrick Lee Mosteller, 145 F.3d 1343 (9th Cir. 1998).unpublished
- United States v. Edward E. Allen, 157 F.3d 661 (9th Cir. 1998).published
- UNITED STATES of Am., Plaintiff-Appellee, v. Richard David LaVALLE, Defendant-Appellant, 167 F.3d 1255 (9th Cir. 1999).published
- United States v. Richard David Lavalle, 175 F.3d 1106 (9th Cir. 1999).published
- United States v. Olmos-Esparza, 974 F. Supp. 1311 (S.D. Cal. 1997).published
- United States v. Nguyen, 997 F. Supp. 1281 (C.D. Cal. 1998).published
- United States v. Watts, 29 F. Supp. 2d 657 (E.D. Cal. 1998).published
- United States v. Jeremiah Jacobs, No. 97-1211 (8th Cir. Feb. 18, 1998).published
- United States v. Jonathan Toliver, 672 F. App'x 689 (9th Cir. 2016).unpublished
- United States v. Scrivner, 114 F.3d 964 (9th Cir. 1997).published
- Gallego v. McDaniel, 124 F.3d 1065 (9th Cir. 1997).published
- United States v. Vasquez, 127 F. App'x 990 (9th Cir. 2005).unpublished
At page 1159 Requirements for alleging facts to earn a hearing37 citing cases“allege specific facts which, if true, would entitle him to relief.”
- United States v. Jess A. Rodrigues, 347 F.3d 818 (9th Cir. 2003).published This standard requires the defendant to do more than simply allege a “conflict” or baldly assert that the asserted conflict had an “adverse effect.” See id. (“There would be no point in raising the issue, and hence no ineffective assistanc…
- Burleson v. United States, No. 2:24-cv-02325 (D. Nev. Mar. 25, 2025).The court may 21 deny a hearing if the movant’s allegations, viewed against the record, fail to state a claim for 22 relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” 23 United States v. McMullen…
- Wendy Cunning v. Skye Bioscience, Inc., No. 23-55248 (9th Cir. Oct. 22, 2024).unpublishedA district court abuses its discretion when it makes an error of law or “bases its decision on unreasonable findings of fact.” Callahan v. Brookdale Senior Living Communities, Inc., 42 F.4th 1013, 1020 (9th Cir. 2022) (quoting Roes, 1–2 v.…
- Thayer v. United States, No. 2:24-cv-01010 (D. Nev. Aug. 30, 2024).The court may deny a hearing if the 9 movant’s allegations, viewed against the record, fail to state a claim for relief or “are so 10 palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. 11 McMullen,…
- Latu v. United States, No. 1:23-cv-00476 (D. Haw. June 17, 2024).“To earn the right to a hearing, therefore, [a petitioner is] required to allege specific facts which, if true, would entitle him to relief.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (citing Baumann v. United States, 6…
- Fujinaga v. United States, No. 2:23-cv-00768 (D. Nev. Dec. 13, 2023).The court may deny a hearing if the 17 movant’s allegations, viewed against the record, fail to state a claim for relief or “are so 18 palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. 19 McMullen…
- Hall v. United States, No. 2:23-cv-00983 (D. Nev. Sept. 29, 2023).The court may 2 deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for 3 relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” 4 United States v. McMullen, 9…
- Hernandez v. United States, No. 2:21-cv-01972 (D. Nev. Jan. 31, 2023).The court may 24 deny a hearing if the movant’s allegations, viewed against the record, fail to state a claim for 25 relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” 1 United States v. McMullen,…
- Chandler v. United States, No. 2:21-cv-01441 (D. Nev. Jan. 30, 2023).The court may 2 deny a hearing if the movant’s allegations, viewed against the record, fail to state a claim for 3 relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” 4 United States v. McMullen, 9…
- Woolsey v. United States, No. 4:21-cv-00027 (D. Ariz. Feb. 1, 2022).A § 2255 motion must “allege specific facts which, if true, 1 would entitle [a petitioner] to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th 2 Cir. 2003) (citing United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996)). 3…
Show 27 more citing cases
- Lopez Estrada v. United States, No. 3:19-cv-01291 (S.D. Cal. Apr. 3, 2020).United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 28 1996).
- United States v. Julio Haro-Verdugo, No. 12-16611 (9th Cir. Aug. 31, 2018).unpublished“Although section 2255 imposes a fairly lenient burden on the petitioner, the petitioner is nonetheless ‘required to allege specific facts which, if true, would entitle him to relief.’” Id. (quoting United States v. McMullen, 98 F.3d 1155,…
- United States v. Jose Maria Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005).publishedRodrigues, 347 F.3d at 824 (quoting United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996)). 24 .
- United States v. Sandoval-Lopez, No. 03-35594 (9th Cir. June 6, 2005).publishedThe evidenti- ary hearing will determine whether this claim by Sandoval- Lopez is true or false, whether it is true but was followed by consultation and withdrawal of the request, etc. [8] We are compelled to conclude that the district cou…
- Hernandez v. Runnels, 83 F. App'x 197 (9th Cir. 2003).unpublishedCf. United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996).
- Mulitauaopele v. Am. Samoa Gov't, 7 Am. Samoa 3d 32 (2003).publishedUnited States v. McMullen, 98 F.3d 1155, 1159 (9th Or, 1996).
- Venetian Casino Resort, LLC v. Lehrer McGovern Bovis, Inc., 56 F. App'x 795 (9th Cir. 2003).unpublishedUnited States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (citing Silber v. Mabon, 18 F.3d 1449, 1455 (9th Cir.1994)).
- Abraham Gladney, Jr. v. Pendleton Corr. Facility & Indiana Dep't of Corr., 302 F.3d 773 (7th Cir. 2002).publishedBlackledge v. Allison, 431 U.S. 63, 76 , 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977); United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996); Peavy v. United States, 31 F.3d 1341, 1345 (6th Cir.1994); Houston v. Lockhart, 982 F.2d 1246, 12…
- Gladney, Abraham v. Pendleton Corr., No. 01-2182 (7th Cir. Sept. 13, 2002).publishedBlackledge v. Allison, 431 U.S. 63, 76 (1977); United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996); Peavy v. United States, 31 F.3d 1341, 1345 (6th Cir. 1994); Houston v. Lockhart, 982 F.2d 1246, 1250 (8th Cir. 1993).
- United States v. Lindberg, 22 F. App'x 870 (9th Cir. 2001).unpublished“The court may deny a hearing if the [movant’s] allegations, viewed against the record ... are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (int…
- United States v. Darren Eugene Henderson, 241 F.3d 638 (9th Cir. 2001).publishedUnited States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996).
- United States v. Dennis Hampton, 119 F.3d 7 (9th Cir. 1997).unpublished
- United States v. Mahmoud Ribhe Mohd, 141 F.3d 1181 (9th Cir. 1998).unpublished
- Ignacio Alberto ORTIZ, Petitioner-Appellant, v. Terry STEWART, Respondent-Appellee, 149 F.3d 923 (9th Cir. 1998).published
- United States v. Hector Francisco Molina, 110 F.3d 71 (9th Cir. 1997).unpublished
- United States v. William L. Scholl, United States of Am. v. William L. Scholl, 166 F.3d 964 (9th Cir. 1999).published
- United States v. Espinoza-Godinez, 11 F. Supp. 2d 1210 (D. Or. 1998).published
- United States v. Moses, 642 F. Supp. 2d 1216 (D. Idaho 2009).published
- United States v. Webber, 978 F. Supp. 1352 (D. Or. 1997).published
- United States v. Mott, 979 F. Supp. 1293 (D. Or. 1997).published
- United States v. Gurrola Madrid, 997 F. Supp. 1360 (D. Or. 1998).published
- Christensen v. United States, No. 3:18-cv-08235 (D. Ariz. Apr. 6, 2020).
- Terry v. United States, No. 4:20-cv-00029 (D. Ariz. Sept. 2, 2021).
- Stephanie Ilene Lazarus v. Molly Hill, No. 5:18-cv-00718 (C.D. Cal. Apr. 22, 2021).
- Roman v. United States, No. 5:18-cv-02501 (N.D. Cal. Sept. 14, 2021).
- Bogema v. United States, No. 1:21-cv-00159 (D. Haw. June 22, 2021).
- Cablay v. United States, No. 1:21-cv-00454 (D. Haw. Feb. 13, 2023).
At page 1156 Review of district court denial of motion de novo34 citing cases
- United States v. Jess A. Rodrigues, 347 F.3d 818 (9th Cir. 2003).published This standard requires the defendant to do more than simply allege a “conflict” or baldly assert that the asserted conflict had an “adverse effect.” See id. (“There would be no point in raising the issue, and hence no ineffective assistanc…
- United States v. Ruben Zuno-Arce, 339 F.3d 886 (9th Cir. 2003).publishedUnited States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996).
- Reece v. United States, 119 F.3d 1462 (11th Cir. 1997).published
- United States v. Epitacio Florencio Garcia, 108 F.3d 1386 (9th Cir. 1997).unpublished
- United States v. Raul Lopez-Mesa, AKA Raul Lopez, Aka: Paul Lopez-Mesa, 110 F.3d 71 (9th Cir. 1997).unpublished
- 97 Cal. Daily Op. Serv. 3298, 97 Daily Journal D.A.R. 5709 United States of Am. v. Jose Luis Magallon, United States of Am. v. Robert Gonzales, United States of Am. v. Luis E. Estrada-Hernandez, United States of Am. v. Gerardo Delgado-Garibay, 113 F.3d 150 (9th Cir. 1997).published
- United States v. Nelson Mayor Martinez, 113 F.3d 1243 (9th Cir. 1997).unpublished
- United States v. Vincent Peter Camacho, 114 F.3d 1196 (9th Cir. 1997).unpublished
- United States v. Jace D. Henman, 116 F.3d 486 (9th Cir. 1997).unpublished
- United States v. James C. Maki, Bonnie L. Maki, 117 F.3d 1426 (9th Cir. 1997).unpublished
Show 24 more citing cases
- United States v. Mark Kelso, 117 F.3d 1426 (9th Cir. 1997).unpublished
- United States v. Ronald Lee Dewbre, 119 F.3d 7 (9th Cir. 1997).unpublished
- United States v. George Allen, 120 F.3d 269 (9th Cir. 1997).unpublished
- United States v. Rickey Bunton, 122 F.3d 1074 (9th Cir. 1997).unpublished
- United States v. Gerardo Bejarano-Ramirez, 122 F.3d 1074 (9th Cir. 1997).unpublished
- United States v. Arnold Martin, 124 F.3d 214 (9th Cir. 1997).unpublished
- United States v. Alexander E. Egbuniwe, 125 F.3d 859 (9th Cir. 1997).unpublished
- United States v. Shirley S. Coble, United States of Am. v. Shirley S. Coble, 127 F.3d 1107 (9th Cir. 1997).unpublished
- United States v. Donald Darrah, 127 F.3d 1107 (9th Cir. 1997).unpublished
- United States v. Denard Darnell Neal, 129 F.3d 128 (9th Cir. 1997).unpublished
- United States v. Eugene John Wolf, 129 F.3d 129 (9th Cir. 1997).unpublished
- United States v. Joseph Jay Pickrel, United States of Am. v. James Pickrel, 131 F.3d 149 (9th Cir. 1997).unpublished
- United States v. Lillard, 132 F.3d 41 (9th Cir. 1997).unpublished
- United States v. Felipe Carlos Dominguez, 133 F.3d 929 (9th Cir. 1998).unpublished
- United States v. Alhaji Gani Majekodunmi, 133 F.3d 930 (9th Cir. 1997).unpublished
- United States v. Daniel Joseph Feist, 139 F.3d 908 (9th Cir. 1998).unpublished
- United States v. Brenton Neil Mullins, 139 F.3d 909 (9th Cir. 1998).unpublished
- United States v. Terry Spears, 141 F.3d 1182 (9th Cir. 1998).unpublished
- United States v. Estevan Carrera Seguame, 142 F.3d 447 (9th Cir. 1998).unpublished
- United States v. Steve R. Treleaven, 145 F.3d 1343 (9th Cir. 1998).unpublished
- United States v. Joanne Kwi Ye Estes, 166 F.3d 1218 (9th Cir. 1998).published
- United States v. Magallon, 113 F.3d 150 (9th Cir. 1997).published
- United States v. Roston, 26 F. App'x 677 (9th Cir. 2002).unpublished
- Ryan Vandyck v. United States, No. 23-15198 (9th Cir. Apr. 5, 2024).unpublished
At page 1158 Evaluating counsel's performance under strickland standards32 citing cases“perhaps it simply never occurred to defense counsel or anyone else that serious drug dealers would set out to make or would possess with intent to distribute l-methamphetamine, an isomer of methamphetamine that had no street value whatsoever and no physiological effect desired by its buyers.”
- United States v. Jess A. Rodrigues, 347 F.3d 818 (9th Cir. 2003).published “there would be no point in raising the issue, and hence no ineffective assistance of counsel, unless there were some proof to offer in his favor.”
- United States v. Bounds, No. 24-7252 (9th Cir. June 16, 2026).unpublished“Section 2255 requires that the district court grant a petitioner’s motion to hold an evidentiary hearing ‘unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” United State…
- United States v. Darryl Young, No. 23-35297 (9th Cir. Apr. 9, 2025).unpublished“Section 2255 requires that the district court grant a petitioner’s motion to hold an evidentiary hearing ‘unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” United State…
- Ish v. United States, No. 4:21-cv-00325 (D. Idaho Sept. 4, 2024).For this claim to succeed, Ish must allege facts showing that Brown’s behavior regarding this motion to compel “fell below prevailing professional norms” and demonstrate the result of the proceeding would have been different “but for couns…
- Latu v. United States, No. 1:23-cv-00476 (D. Haw. June 17, 2024).“To earn the right to a hearing, therefore, [a petitioner is] required to allege specific facts which, if true, would entitle him to relief.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (citing Baumann v. United States, 6…
- People of Guam v. Jeffrey Guerrero Cruz, 2023 Guam 1 (Guam 2023).published Strickland, 466 U.S. at 687 ; see also Angoco v. Bitanga, 2001 Guam 17 ¶ 8; Guerrero, 2017 Guam 4 ¶ 59. [9] To fulfill the first prong of Strickland, Cruz must show that “the behavior complained of falls below prevailing professional norms…
- Fernandez-Perez v. United States, No. 3:19-cv-00127 (S.D. Cal. Nov. 6, 2020). The Ninth Circuit has “consistently held that a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding.” See, e.g., McMullen, 98 F.3d at 1157 (holding that the bec…
- Cruz-Venegas v. United States, No. 3:18-cv-02511 (S.D. Cal. Oct. 26, 2020). (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 specifi…)
- Thorson v. United States, No. 2:18-cv-00136 (W.D. Wash. Aug. 9, 2019).United States v. 19 McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996).
- United States v. Michael Ohayon, 617 F. App'x 830 (9th Cir. 2015).unpublished(adopting the Government’s position that the “fact that defendant’s lawyer was not innovative enough to raise this issue does not make him constitutionally defective)
Show 22 more citing cases
- Nostratis v. United States, No. 1:04-cv-00014 (D. Guam Apr. 10, 2006).A petitioner fulfills the first prong of the 14 || Strickland test by showing that “the behavior complained of falls below prevailing professional 15 || norms.” United States v. McMullen, 98 F.3d 1155, 1158 (9 Cir. 1996).
- Cormier v. United States, 81 F. App'x 990 (9th Cir. 2003).unpublishedBecause neither the facts of this case, nor case law advances Cormier’s legal theory, we cannot find that his counsel acted “outside the wide range of professionally competent assistance.” An evidentiary hearing is required if the appellan…
- United States v. Malta, 81 F. App'x 246 (9th Cir. 2003).unpublishedUnited States v. McMullen, 98 F.3d 1155, 1158 (9th Cir.1996) (emphasis added).
- United States v. Modafferi, 112 F. Supp. 2d 1192 (D. Haw. 2000).publishedUnited States v. McMullen, 98 F.3d 1155, 1158 (9th Cir.1996), *1198 ce rt. denied, 520 U.S. 1269 , 117 S.Ct. 2444 , 138 L.Ed.2d 203 (1997).
- United States v. Ronald Lee Dewbre, 119 F.3d 7 (9th Cir. 1997).unpublished
- United States v. Joseph Jay Pickrel, United States of Am. v. James Pickrel, 131 F.3d 149 (9th Cir. 1997).unpublished
- 97 Cal. Daily Op. Serv. 4364, 97 Daily Journal D.A.R. 7281 United States of Am. v. Richard Lee Scrivner, United States of Am. v. Barbara Lammsies Scrivner, United States of Am. v. George Michael Gray, 114 F.3d 964 (9th Cir. 1997).published
- United States v. Olmos-Esparza, 974 F. Supp. 1311 (S.D. Cal. 1997).published
- United States v. Scrivner, 114 F.3d 964 (9th Cir. 1997).published
- United States v. Salvador Soto Mendoza, 107 F.3d 878 (9th Cir. 1997).unpublished
- United States v. Robert Joseph Tinkle, Jr., 116 F.3d 1487 (9th Cir. 1997).unpublished
- United States v. Alvaro Jorge Cardona-Echeverria, 119 F.3d 7 (9th Cir. 1997).unpublished
- United States v. Dennis Hampton, 119 F.3d 7 (9th Cir. 1997).unpublished
- United States v. Mahmoud Ribhe Mohd, 141 F.3d 1181 (9th Cir. 1998).unpublished
- United States v. Kenneth Elston Hammon, Jr., 145 F.3d 1342 (9th Cir. 1998).unpublished
- United States v. Scott Leone West, 145 F.3d 1343 (9th Cir. 1998).unpublished
- Ignacio Alberto ORTIZ, Petitioner-Appellant, v. Terry STEWART, Respondent-Appellee, 149 F.3d 923 (9th Cir. 1998).published
- Frank Wayne Johnson v. United States, 362 F.3d 636 (9th Cir. 2004).published
- United States v. Alcazar, 68 F. App'x 21 (9th Cir. 2003).unpublished
- Kakkar v. United States, No. 5:19-cv-05369 (N.D. Cal. June 7, 2022).
- Banks v. United States, No. 3:22-cv-01133 (S.D. Cal. May 8, 2024).
- Han v. United States, No. 2:19-cv-00888 (D. Nev. Feb. 21, 2020).
v.
Frank Charles McMullen Jr.
This appeal by Frank Charles McMullen from the denial of his 28 U.S.C. § 2255 motion to vacate his sentence requires us to decide if defendants convicted of possession of methamphetamine with intent to distribute waive their right to challenge on collateral review the sentencing court’s finding of the type of methamphetamine involved in their offense when they fail to assert that challenge at sentencing or on direct appeal. Appellant argues that the probation officer who prepared the presentence report improperly assumed that McMullen possessed D-methamphetamine rather than L-methamphetamine, and that the sentencing court erred in relying on that assumption. McMullen also argues that he was denied effective assistance of counsel when his attorney failed to raise the issue of L- versus D-methamphetamine at sentencing. Further, he contends that the district court abused its discretion in denying his motions for discovery and an evidentiary hearing.
The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. We affirm.
I.
McMullen does not contest the basic facts underlying his conviction. Rather, his § 2255 motion attacks his sentence on the basis of the difference between L-methamphetamine (the isomer levo-methamphet-amine) and D-methamphetamine (the isomer dextro-methamphetamine). L-methamphetamine produces little or no effect when ingested, whereas D-methamphetamine produces an intense high. The Sentencing Guidelines in effect during McMullen’s sentencing treated L-methamphetamine much less severely than D-methamphetamine. See U.S.S.G. § 2D1.1, comment, (n. 10) (Nov. 1, 1990). The Guidelines have since been amended to eliminate any distinction in sentencing between L- and D-methamphetamine. See U.S.S.G. § 2D1.1 (Nov. 1, 1995).
McMullen did not raise the issue of methamphetamine type at any time during his sentencing proceeding. The probation officer who drafted McMullen’s presentence report determined the applicable Sentencing Guidelines range by assuming that D-methamphetamine was involved. The parties and the district court proceeded through sentencing on the basis of that assumption, and the court sentenced McMullen to 151 months imprisonment. He did not appeal, but the court later reduced McMullen’s sentence to 121 months after McMullen brought a § 2255 motion challenging a clerical error in the original judgments.
Appellant first raised the issue of methamphetamine type in his second § 2255 motion, four years after sentencing. He argued that the sentencing court erred in adopting the presentence report without requiring the government to prove possession of Drather than L-methamphetamine. The district court denied this motion and motions for discovery and an evidentiary hearing. McMullen now appeals the decision of the district court.
This court reviews de novo the denial of motions pursuant to 28 U.S.C. § 2255. Frazer v. United States, 18 F.3d 778, 781[*1157] (9th Cir.1994). We also review de novo claims of ineffective assistance of counsel. United States v. Blaylock, 20 F.3d 1458, 1464-65 (9th Cir.1994). We review for abuse of discretion the district court’s decision to deny evidentiary hearing motions. Id. at 1464.
II.
McMullen argues that the calculations in his presentence report were improper because they included an assumption that he possessed D- rather than L-methamphetamine. He further contends that the sentencing court erred in relying on that assumption without any proof by the government regarding the type of methamphetamine involved.
We have consistently held that a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1995); United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990). Petitioners waive the right to object in collateral proceedings unless they make a proper objection before the district court or in a direct appeal from the sentencing decision. Schlesinger, 49 F.3d at 483; Keller, 902 F.2d at 1393. We have also made clear that computational errors in a petitioner’s presentence report do not give rise to a constitutional issue. See Keller, 902 F.2d at 1393. We therefore hold that the waiver principle announced in Schlesinger applies to the issue of L- versus D-methamphetamine as it would to any other nonconstitutional sentencing issue: the issue may not be raised under § 2255 if it was not raised at sentencing or on direct appeal.
The teaching of United States v. Dudden, 65 F.3d 1461, 1471 (9th Cir.1995), does not cut against our conclusion here. In that case we held that the sentencing court committed clear error by using expert witness affidavits prepared for another case to establish the presence of D-methamphetamine in Dudden’s case. 65 F.3d at 1472. But in contrast to the procedural posture here, the defendant in Dudden first raised the issue of methamphetamine type at sentencing and pursued it on appeal. Id. at 1471. This McMullen has failed to do.
The precise question at issue here has been addressed by the Court of Appeals for the Fifth Circuit in United States v. Seyfert, 67 F.3d 544 (5th Cir.1995). There, as here, the petitioner brought a § 2255 motion challenging his sentence on the grounds that the government had failed to meet its burden of proving that the substance involved was D-methamphetamine. The court rejected this collateral attack because the issue had not been raised at sentencing or on direct appeal. Seyfert, 67 F.3d at 546. We find the Seyfert analysis persuasive and consistent with our holdings in Schlesinger and Keller. Because McMullen failed to raise any objection regarding the type of methamphetamine, either at sentencing or on direct appeal, he is barred from raising this issue in a § 2255 motion. Accordingly, the district court properly denied his motion to vacate his sentence on this ground.
III.
McMullen next argues that his counsel was constitutionally ineffective by failing to raise at sentencing the issue of methamphetamine type. Defendants may raise such an objection for the first time in a § 2255 motion if they show both cause for their failure to make the objection earlier and prejudice from that failure. Evenstad v. United States, 978 F.2d 1154, 1158 (9th Cir.1992). Establishing the elements of an ineffective assistance of counsel claim normally will meet this cause and prejudice test. United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993). The elements established by the Supreme Court for prevailing on an ineffective assistance of counsel claim are familiar: (1) the defendant “must show that counsel’s representation fell below an objective standard of reasonableness”; and (2) the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984).
[*1158] Although the district court did not specifically refer to the Strickland elements, it rejected McMullen’s claim because of his failure to “raise any issue regarding the type of methamphetamine until years after his conviction and sentencing.” Dist. Ct. Order at 3. Notwithstanding the district court’s succinct approach, our review of the record persuades us that Appellant’s ineffective assistance of counsel claim fails to meet the Strickland requirements.
First, his counsel’s performance did not fall below “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. The government has observed:
Defendant’s brief nowhere points to specific ways in which the failure to raise the L-methamphetamine issue fell below prevailing professional standards. The government notes that it is very common for defense counsel not to raise this issue at sentencing. The government is aware of at least ten (10) other pending cases from the District of Oregon, in addition to this case, where defendants have filed § 2255 motions on the identical issue, namely, ineffective assistance of counsel for failure to challenge the type of methamphetamine at sentencing. Given the number of such cases that were sentenced as D-methamphetamine without challenge, it appears that a great number of defendant’s colleagues had lawyers doing the exact same thing. Perhaps it simply never occurred to these lawyers that serious drug dealers would set out to make or would possess with intent to distribute L-methamphetamine, an isomer of methamphetamine that had no street value whatsoever and no physiological effect desired by its buyers. An attorney’s performance, which enjoys a strong presumption of adequacy, is deficient only if ... objectively unreasonable. Clark v. Collins, 19 F.3d 959, 964 (5th Cir.1994). The fact that defendant’s lawyer was not innovative enough to raise this issue does not make him constitutionally defective. Perhaps he was simply too experienced to imagine that L-methamphetamine was involved at all in this case.
Government’s Br. at 9-10 (footnote omitted).
Ineffective assistance of counsel occurs when the behavior complained of falls below prevailing professional norms. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We are satisfied there was no such departure here. In light of the deference accorded attorney performance, and considering a clear and established background of similar professional behavior by other attorneys on this precise issue, we will not conclude that McMullen’s counsel’s decision not to inquire about the type of methamphetamine involved was objectively unreasonable.
Appellant has also failed to satisfy the second Strickland prong; he has not alleged facts that, if true, would demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Again, the government’s argument is compelling:
[McMullen’s] bare assertion that his attorney failed to raise the issue is not enough. There would be no point in raising the issue, and hence no ineffective assistance of counsel, unless there were some proof to offer in his favor. But defendant offers nothing on this point, not even a self-serving declaration that it was L-methamphetamine produced in his own laboratory. Missing are allegations that raise a reasonable probability that the drug defendant possessed was actually L-methamphetamine.
Government’s Br. at 10-11.
We are satisfied that counsel’s professional performance at sentencing did not fall below any objective standard of performance or prejudice the outcome of the proceedings.
IV.
Appellant contends also that the district court erred in not granting him an evidentiary hearing on his ineffective assistance of counsel' claim. Section 2255 requires that the district court grant a petitioner’s motion to hold an evidentiary hearing “unless 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.[*1159] See U.S. v. Burrows, 872 F.2d 915, 917 (9th Cir.1989). The court may deny a hearing if the petitioner’s allegations, viewed against the record, fail to state a claim for relief or are “ ‘so palpably incredible or patently frivolous as to warrant summary dismissal’.” Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (per curiam)). To earn the right to a hearing, therefore, AppeEant was required to allege specific facts which, if true, would entitle him to relief. See Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). This he failed to do. As emphasized before, McMuEen did not object, either at sentencing or on direct appeal, to the use of D-methamphetamine in the calculation of his sentence. See Dist.Ct.Order at 3. Under the abuse of discretion standard, an appeUate court may not simply substitute its judgment for that of the lower court, Silber v. Mabon, 18 F.3d 1449, 1455 (9th Cir.1994), and must accord the district court wide latitude on its decision. We do so here.
We have considered ah arguments raised by the parties and conclude that no further discussion is necessary.
AFFIRMED.