1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 || UNITED STATES OF AMERICA, 9 Plaintiff, Case No. 2:14-cr-0078-LDG 10 || v. ORDER 11 | OSCAR DELVAL-INZUNZA, 12 Defendant. 13 14 The defendant, Oscar Delval-Inzunza, moves pursuant to

to 15 || vacate, set aside, or correct his sentence (ECF No. 41). Delval-Inzunza asserts four 16 || grounds for relief: that his counsel was ineffective (1) because he waived his right to 17 || appeal; (2) because he did not receive a reduction for being a “minor participant;” (3) 18 || because he was not prosecuted pursuant to a “Fast Track Program;” and (4) because his 19 || base offense level was 28, rather than 26.' The government opposes the motion (ECF Ne 20 || 44), to which Delval-Inzunza has replied (ECF No. 45). Having read and considered the 21 || motion and papers, and the record, including the defendant’s plea agreement and the 22 || —___ 23 ' As written, Delval-Inzunza’s motion could be construed as alleging a pair of non-constitutional sentencing errors, in addition to a pair of claims of ineffective assistanc 24 || of counsel. However, non-constitutional sentencing errors may not be reviewed under § 2255. United States v. Schlesinger,

(9th Cir. 1994) (concluding “that 25 || non-constitutional sentencing errors that have not been raised on direct appeal have beer waived and generally may not be reviewed by way of 28 U.S.C. § 2255”). The Court, 26 || however, has liberally construed the motion as if each non-constitutional sentencing error were alleged in the context of an ineffective assistance of counsel claim.

1 || hearings at which the defendant pled guilty and at which the Court sentenced him, the 2 || Court finds that they conclusively show that Nunes is not entitled to any relief. 3 A criminal defendant is entitled to reasonably effective assistance of counsel. 4 || McMann v. Richardson,

(1970). The right to effective assistance 5 || of counsel is the right of the accused to require the prosecution's case to survive the 6 || crucible of meaningful adversarial testing. Strickland v. Washington,

, 685 7 || (1984). When a true adversarial criminal trial has been conducted, even if defense couns 8 || has made demonstrable errors, the requirements of the sixth amendment have been met. 9|| United States v. Cronic,

(1984). Counsel is presumed competent. As 10 |) such, the burden rests on the defendant to establish a constitutional violation. /d. at 658. 11 To obtain reversal of a conviction for ineffective assistance of counsel, the petitione 12 || must prove (1) that counsel's performance was so deficient that it fell below an objective 13 | standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the 14 || defense to such a degree as to deprive the defendant of a fair trial. Strickland, 466 U.S. < 15 || 687-88, 692 (1984). To establish deficient performance under Strickland, it must be show 16 || “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 17 || guaranteed the defendant by the Sixth Amendment.” /d. at 687. Exercising highly 18 || deferential judicial scrutiny,

, this court inquires “whether counsel's assistance ws 19 |) reasonable considering all the circumstances.” /d. at 688. “Such assessment must be 20 | made ‘from counsel's perspective at the time,’ so as ‘to eliminate the distorting effects of hindsight.” Silva v. Woodford,

(9" Cir. 2002) (citing Strickland, 466 U. 22 || at 689). 23 Prejudice can be presumed only “where there has been an actual breakdown in the 24 || adversarial process at trial.” Toomey v. Bunnell,

, 744 n. 2 (9th Cir. 1990); 25 || See also

Demonstrating prejudice imposes a “substantial burden’ that 26 || demands far more than listing all of the things the petitioner thinks his attorney “should

1 || have done” and speculating that, had he done them, he might have been acquitted. See, e.g., Gonzalez v. Knowles,

(9th Cir. 2008) (no prejudice where 3 || movant alleges that counsel failed to investigate undiagnosed mental illness). Moreover, 4 || prejudice exists only where the movant does not “receive[] a fair trial” and the verdict 5 || resulting is not “worthy of confidence.” Downs v. Hoyt,

(9th Cir. 6 || 2000); accord Lockhart v. Fretwell,

(1993) (“[Flocusing solely on 7 || mere outcome determination, without attention to whether the proceeding was 8 | fundamentally unfair or unreliable . .. may grant the defendant a windfall to which the law 9 || does not entitle him.”). “[A] court need not determine whether counsel’s performance was 10 || deficient before examining the prejudice suffered by the defendant as a result of the 11 || alleged deficiencies.” Strickland,

. 12 Delval-Inzunza has not alleged any facts, in either his motion or his reply, 13 || suggesting that his counsel erred in defending him, much less supporting an inference the 14 || she committed errors so serious that she was not functioning as the ‘counsel’ guaranteed 15 || by the Sixth Amendment. The defendant is correct that he waived his right to appeal his 16 || conviction and sentence, that he did not receive a two-point reduction for being a minor 17 || participant, that he was not prosecuted pursuant to a “fast track program,” and that his 18 || base offense level was determined to be 28, rather than 26. He has not alleged any facts 19 || however, supporting an inference that any of these events constituted an error, much less 20 | an error to which his counsel should have objected. The record lacks evidence suggestin: 21 || the defendant should have received a minor participant reduction. As Delval-Inzunza 22 || concedes, there was not a fast track program pursuant to which he could have been 23 || prosecuted. He does not identify why his believes his base offense level should have bee 24 || 26. Rather, the facts admitted by the defendant in his plea agreement establish that the 25 || correct base offense level was 28. The record also establishes that defendant’s waiver of 26 || his right to appeal was knowing and voluntary. Accordingly, the Court will deny the motior

1 Certificate of Appealability 2 To appeal this order, Delval-Inzunza must receive a certificate of appealability. 28 3 || U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22-1(a). To obtain that 4|| certificate, he “must make a substantial showing of the denial of a constitutional right, a 5 || demonstration that . . . includes showing that reasonable jurists could debate whether (or, - 6 || for that matter, agree that) the petition should have been resolved in a different manner or 7 || that the issues presented were adequate to deserve encouragement to proceed further.” 8 || Slack v. McDaniel,

(2000) (quotation omitted). This standard is 9} “lenient.” Hayward v. Marshall,

(9th Cir. 2010) (en banc). 10 The Court will deny the certificate of appealability for the same reasons its has denied Delval-Inzunza’s claims. In light of the record, his failure to allege any relevant facts 12 || precludes reasonable jurists from even debating whether the petition should have been 13] resolved in a different manner. Therefore, for good cause shown, 14 THE COURT ORDERS that defendant Oscar Delval-Inzunza’s motion under

(ECF No. 41) is DENIED. 16 THE COURT FURTHER ORDERS that defendant Oscar Delval-Inzunza’s request 17 || for a certificate of appealability is DENIED. 18 THE COURT FURTHER ORDERS that the Clerk of Court is directed to enter a separate civil judgment denying defendant Oscar Delval-Inzunza’s § 2255 motion. The 20 || Clerk also shall file this order and the civil judgment in this case and in the related civil case number 2:16-cv-0988-LDG. 221 DATED this <2 day of January, 2020. ‘| 2° bua! Dp □□□ 24 Lloyd D.'George “ 95 United States District Judge 26