O'Campo v. United States

ROBERT O'CAMPO v. UNITED STATES OF AMERICA

Case No. SACV 10-169 DOC

SACR 05-124 DOC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date: August 3, 2012

CIVIL MINUTES - GENERAL

PRESENT:

THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera

Courtroom Clerk

N/A

Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Before the Court is pro se Petitioner Robert O'Campo's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (the "Motion"). Mot. (Dkt. 1). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby DENIES the Motion.

I. Background

On March 20, 2006, Petitioner Robert O'Campo ("Petitioner") was convicted by a jury of violating 21 U.S.C. § 846 for conspiring to possess with intent to distribute methamphetamine. Mot. (Dkt. 1) at 2. Although the indictment only charged Petitioner with possessing "50 grams or more," the jury returned a special finding that Petitioner had possessed 150 grams or more of methamphetamine. Mot. (Dkt. 1) at 24-25. Because Petitioner's offense involved more than 50 grams of methamphetamine, the Pre-Sentence Report noted that Petitioner faced a mandatory minimum sentence of 10 years. Opp'n No. 05-124 (Dkt. 1022) at 4. The Court, relying on a variety of factors including the Federal Sentencing Guidelines and the Probation Office's Pre-Sentence Report, sentenced Petitioner to 292 months imprisonment.

Petitioner appealed his sentence to the Ninth Circuit in 2008 on the grounds that the Court erred in applying a two-level sentence enhancement and also that his sentence was unreasonable. United States v. Ocampo, 265 Fed. App'x 680 (9th Cir. 2008). Petitioner, through his counsel, argued that the two-level enhancement should not apply because the government did not establish that Petitioner ever possessed a firearm. Petitioner also argued that his sentence was unreasonable based on the disparity between his sentence and the sentences of the other co-defendants. Id. at 681. Ultimately, the Ninth Circuit affirmed Petitioner's sentence, approving this Court's application of the two-level sentence enhancement and finding that the 292 month term of imprisonment was reasonable. Id. The Supreme Court denied the petition for writ of certiorari on January 21, 2009. Ocampo v. United States, 555 U.S. 1148, 129 S.Ct. 1026 (2009).

On January 19, 2010, Petitioner filed the present motion to vacate, set aside, or correct a federal sentence based on violations of his Fifth and Sixth Amendment rights. Mot. (Dkt. 1).¹

II. Legal Standard

A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). If the motion combined with the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id.

The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F. Supp.2d 1181, 1187 (D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant mustshow a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1592 (1982); United States v. Addonizio, 442 U.S. 178, 184 99 S.Ct. 2235, 2239 (1979).

III. Discussion

In his motion, Petitioner seeks to invalidate his sentence on the following grounds: (1) his sentence was unreasonable; (2) a two-level sentence enhancement should not have been applied; (3) the application of the two-level sentence enhancement violated Booker v. United States; (4) his criminal history category was improperly calculated; (5) the jury erred in making findings with respect to the amount of methamphetamine; and (6) his counsel rendered ineffective assistance by failing to raise a Booker argument and failing to contest Petitioner's criminal history category. Mot. (Dkt. 1).

A number of Petitioner's claims are procedurally-barred, while the remainder fail on the merits. The Ninth Circuit already ruled on Petitioner's first and second claims regarding the reasonableness of his sentence and the application of the sentence enhancement and therefore these issues may not be re-litigated in a § 2255 motion. See United States v. Ocampo, 265 Fed. App'x 680, 681 (9th Cir. 2008). Furthermore, Petitioner's third, fourth, and fifth claims regarding Booker, his criminal history category, and the jury's findings with respect to the amount of methamphetamine are procedurally defaulted due to Petitioner's failure to raise these issues on direct appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593 (1982). Finally, though the sixth claim for ineffective assistance of counsel may be considered on its merits, Petitioner has not sufficiently demonstrated constitutionally-deficient performance or resulting prejudice in any instance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). For these reasons, the Court DENIES Petitioner's motion

A. Petitioner May Not Raise the Two Claims Already Addressed on Direct Appeal

In disregard of well-established procedural rules pertaining to § 2255 motions, Petitioner attempts to re-litigate claims that were already raised on direct appeal.Petitioner argues in his motion that the Court "clearly erred" when it applied a two-level sentence enhancement for possession of a dangerous weapon in connection with the charged offense pursuant to U.S.S.G. § 2D1.1(b)(1). Mot. (Dkt. 1) at 17. This exact claim was also raised in his appeal, where it was rejected by the Ninth Circuit. Ocampo, 265 Fed. App'x at 681 ("the district court properly applied a two-level enhancement for possession of a firearm").

Additionally, Petitioner claims that the Court's imposition of a 292-month sentence was unreasonable and in violation of his due process rights. Once again, this claim was raised on direct appeal and rejected. Id. (holding that the Court "followed the appropriate procedures" and "provided sufficient reasons for the sentence"). Upon losing on direct appeal, Petitioner now seeks collateral review of these two claims without making any significant changes in his arguments.

It is well settled, that "[w]hen a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as a basis for a subsequent § 2255 petition." United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000); cf. United States v. Metzger, 3 F.3d 756, 758 (4th Cir. 1993) (noting that the "unique interests in judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice" serve as a basis of the § 2255 petition's procedural bar). The Ninth Circuit entertained these identical claims and determined that they both did not have any merit. Accordingly, the Court DENIES the motion to the extent that it is founded on claims that the Court clearly erred in applying a two-level sentence enhancement and that the sentence was unreasonable.

B. Petitioner Procedurally Defaulted His Third, Fourth, and Fifth Claims by Failing to Raise Them on Direct Appeal

Petitioner is procedurally barred from raising claims in his motion that were never addressed by this Court or the Ninth Circuit. Courts have consistently held that "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. at 165, 102 S.Ct. at 1593; see also United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239 (1979) ("[Congress] did not purport to modify the basic distinction between direct review and collateral review"); United States v. Corsentino, 685 F.2d 48, 50 (2d Cir. 1982) ("emphasizing the importance of finality of criminal judgments of conviction"). The Supreme Court has reasoned that for the purposes of preservingjudicial resources and the integrity of final judgments, the scope of collateral attacks must be narrowly limited. Addonizio, 442 U.S. at 184, 99 S.Ct. at 2239.

i. Standard for Excusing Procedural Default

Collateral relief may only be obtained in spite of this double procedural default if a convicted defendant can show both "cause and actual prejudice." See, e.g., Frady, 456 U.S. at 167, 102 S.Ct. 1584, 1594; Davis v. United States, 411 U.S. 233, 245, 93 S.Ct. 1577, 1584 (1973); Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505 (1977). "[A] convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168, 102 S.Ct. at 1594. This standard is necessary not only to discourage intentional defaults, but also to avoid the costs of federal habeas review, which include "a reduction in the finality of litigation." See Murray v. Carrier, 477 U.S. 487, 487, 106 S.Ct. 2639, 2644-45 (1986).

It is unnecessary to determine whether Petitioner suffered actual prejudice because he has not established cause sufficient to excuse his repeated failures to raise these issues when given an opportunity to do so. To establish cause for his three aforementioned claims, Petitioner must show that he could not have known of...