United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE
case comes before the Court on Defendant/Movant Eduardo
Ocegueda-Ruiz's motion to vacate, set aside, or correct
his sentence, pursuant to 28 U.S.C. § 2255. (Doc. 839.)
Ocegueda-Ruiz is a federal prisoner proceeding pro se.
April 20, 2017, the Court ordered the Clerk of Court to
retain a qualified translator to translate those portions of
Ocegueda-Ruiz's § 2255 motion that are written in
Spanish. (Doc. 841.) That translation was provided on April
27, 2017, (Doc. 842), and was reviewed in conjunction with
the original motion.
February 21, 2018, the Court gave Ocegueda-Ruiz an
opportunity to supplement his original motion as to his
interpreter (Claim Three). (Doc. 856.) Ocegueda-Ruiz responded on
March 26, 2018. (Doc. 859.) This response will be reviewed in
conjunction with his original petition.
motion is subject to preliminary review before the United
States is required to respond. The Court must determine
whether “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); see also
Rule 4(b), Rules Governing Section 2255 Proceedings for the
United States District Courts.
petitioner “who is able to state facts showing a real
possibility of constitutional error should survive Rule 4
review.” Calderon v. United States Dist.
Court, 98 F.3d 1102, 1109 (9th Cir. 1996)
(“Nicolas”) (Schroeder, C.J.,
concurring) (referring to Rules Governing § 2254 Cases).
It remains the duty of the court “to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer.” Advisory Committee Note (1976), Rule 4, Rules
Governing § 2254 Cases, cited in Advisory
Committee Note (1976), Rule 4, Rules Governing § 2255
government filed a criminal complaint on September 29, 2014,
against Ocegueda-Ruiz, along with four co-defendants,
charging conspiracy with intent to distribute
methamphetamine, 21 U.S.C. §§ 846, 841(a)(1). (Doc.
2.) A grand jury indicted Ocegueda-Ruiz-along with 19
co-defendants-on 24 counts, on October 20, 2014. Seven of
these counts applied to Ocegueda-Ruiz, including: Count 1:
conspiracy to possess with intent to distribute and to
distribute methamphetamine, 21 U.S.C. § 846; Count 5:
possession with intent to distribute methamphetamine, 21
U.S.C. § 841(a)(1); Count 14: conspiracy involving
firearm and drug trafficking crime, 18 U.S.C. § 924(o);
Count 20: possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A);
Count 21: felon in possession of firearm, 18 U.S.C. §
922(g)(1); Count 22: illegal alien in possession of firearm,
18 U.S.C. § 922(g)(5); and Count 24: illegal reentry, 8
U.S.C. § 1326(a), (b)(2). (See Docs. 26, 27.)
1 and 5 carried a mandatory minimum ten years imprisonment
upon conviction. The government filed a notice pursuant to 21
U.S.C. §§ 841(b)(1)(A) and 851(a), to increase the
potential penalty for Ocegueda-Ruiz for conviction under
Counts 1 and 5 to a mandatory term of life imprisonment.
(Doc. 408.) Count 20 carried a mandatory consecutive
Court held a two-day jury trial on March 2, 2015, on Counts
1, 5, 20, 21 and 22. (See Min. Entries, Docs. 514,
520.) The jury convicted Ocegueda-Ruiz on all counts.
(See Verdict, Docs. 526, 527.) The Court sentenced
Ocegueda-Ruiz on June 3, 2015, to a custodial term of the
mandatory minimum of life on Counts 1 and 5, concurrent; 120
months on Counts 21 and 22, concurrent; and the mandatory
minimum of five years on Count 20, consecutive. (Judg., Doc.
740.) Ocegueda-Ruiz appealed. (Notice, Doc. 742.) The Ninth
Circuit affirmed his convictions and sentence on October 17,
2016. (Memo. Dispo., Doc. 830.) As Ocegueda-Ruiz sought
neither rehearing nor certiorari, his conviction became final
on January 15, 2018. Gonzalez v. Thaler, 565 U.S.
134, 150 (2012). He timely filed his § 2255 motion on
April 11, 2017. 28 U.S.C. § 2255(f)(1).
Claims and Analysis
claims that counsel provided ineffective assistance of
counsel in various respects. Strickland v.
Washington, 466 U.S. 668 (1984), governs these claims.
At this stage of the proceedings, Ocegueda-Ruiz must allege
facts sufficient to support an inference (1) that
counsel's performance fell outside the wide range of
reasonable professional assistance, id. at 687-88,
and (2) that a reasonable probability exists that, but for
counsel's unprofessional performance, the result of the
proceeding would have been different, id. at 694.
Claim One: Sentencing Enhancement and Procedure
§ 841 Enhancement and Proposition 47
Ocegueda-Ruiz claims trial counsel should have sought to have
his prior felony convictions, upon which his § 841
enhancement relied, reclassified as misdemeanors under
California law. California enacted Proposition 47 in November
2014, which, among other things, “permits
previously-convicted defendants to petition the [state] court
for a ‘recall of sentence, ' which, if granted,
would effectively reclassify their qualifying felonies as
misdemeanors.” United States v. Diaz, 838 F.3d
968, 971 (9th Cir. 2016) (citing Cal. Penal Code §
1170.18(a)). Since his federal sentencing, Ocegueda-Ruiz
successfully petitioned to reclassify two of his felony
convictions-identified in paragraphs 1 and 2 of the
government's § 851 notice, (Doc. 408 at 2)-as
misdemeanors. (See Supr. Ct. of Cal., Min. Ors.,
Doc. 839-2 at 7-10.)
present claim is foreclosed, however, by the Ninth
Circuit's determination “that California's
Proposition 47 . . . does not undermine a prior
conviction's felony status for purposes of §
841.” Diaz, 838 F.3d at 975. Even assuming
counsel provided ineffective assistance of counsel for
failing to pursue this issue (given that Diaz was
not decided until after Ocegueda-Ruiz's conviction and
sentencing), Ocegueda-Ruiz suffered no prejudice from
counsel's failure in light of Diaz. See
Knowles v. Mirzayance, 556 U.S. 111, 121-22 (2009)
(rejecting the argument that counsel is ineffective for
failing to raise an argument if there is “nothing to
Prior Conviction No. 3 Not a Drug Trafficking
Ocegueda-Ruiz alleges that counsel provided ineffective
assistance of counsel for failing to object to the
government's § 851 notice on the grounds that count
one in the prior conviction numbered “3, ”
(see Doc. 408 at 2), “does not categorically
qualify as a drug trafficking offense.” (Doc. 839-1 at
1.) Paragraph 3 of the § 851 notice reads as follows:
Sale/Transportation/Offer to Sell Controlled Substance
(Heroin) (Count 1), and Possession for Sale of a Controlled
Substance (Heroin) (Count 2)-committed on May 13, 2011, and
convicted of both Count 1 and 2 on June 3, 2011. No.
BA384524, in the Superior Court of the State of California,
County of Los Angeles (Attached as Exhibit 3).
(Doc. 408 at 2.) Ocegueda-Ruiz's argument lacks merit.
enhancement under § 841(b)(1)(A) does not require that
the prior conviction be for a drug trafficking offense, but
merely a “felony drug offense.” This case can
thus be distinguished from those, such as enhancements under
USSG §2L1.2(b)(1)(A), that require a prior
“drug-trafficking offense.” Second, a mandatory
life sentence under § 841(b)(1)(A) requires only two
prior convictions. The convictions outlined by the government
in paragraphs 1 and 2 remain valid for the purposes of §
841. See Section III(A)(1) supra.
Ocegueda-Ruiz would not be entitled to relief ...