Unpublished Disposition, 919 F.2d 741 (9th Cir. 1990)
Annotate this CaseDiego CAMPO, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 89-56273.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 3, 1990.* Decided Dec. 6, 1990.
Before WALLACE, O'SCANNLAIN and RYMER, Circuit Judges.
MEMORANDUM**
Diego Campo appeals the district court's denial of his motion under 28 U.S.C. § 2255 to reduce the sentence imposed after he pled guilty to conspiracy to import cocaine. Campo argued in the district court that his counsel's failure both to challenge certain alleged inaccuracies in Campo's presentence report and to bring a Rule 35 motion for reduction of sentence prejudiced him. The district court granted Campo's unopposed motion to correct the presentence report, but upon consideration of all documents and pleadings, denied Campo's motion to reduce his sentence. Campo appeals the order of denial. We affirm.
Campo properly raised his ineffective assistance of counsel claim in collateral proceedings under 28 U.S.C. § 2255. See United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). A defendant cannot prevail in his ineffective assistance claim without showing actual prejudice.1 See Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 696 (1984). In Farrow v. United States, 580 F.2d 1339, 1361-62 (9th Cir. 1978), we held that no prejudice resulted to a defendant who alleged ineffective assistance of counsel due to his attorney's failure timely to file a motion to reduce sentence where the defendant pursued identical relief under Sec. 2255. In this case the district court corrected the presentence report and considered Campo's motion to reduce sentence, thus mooting whatever prejudice could have resulted from the failure to file a Rule 35 motion.
Assuming that Campo raises a cognizable constitutional claim under Sec. 2255, but see United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988); Houser v. United States, 508 F.2d 509, 516 (8th Cir. 1974) (claim that sentence within the statutory maximum is excessive is not ordinarily grounds for relief under Sec. 2255), the district court did not err in declining to reduce his sentence. The ten-year sentence imposed was within the statutory maximum and was not an unreasonable exercise of discretion.
The district court's order denying Campo's motion to reduce sentence is
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Campo argues that he need not prove prejudice, relying on United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984), which holds that a defendant need not prove prejudice where "counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." Campo contends that the pendency of criminal tax fraud charges "effectively removed" his attorney. However, there is no indication that Campo's attorney did not capably represent him at each stage of the proceedings other than the post-judgment motion under Rule 35. Regardless of whether a motion to reconsider sentence is a "critical stage of the proceedings," Campo did not lack effective assistance of counsel because a different attorney competently represented him in connection with his Sec. 2255 motion, which raised the same points that would otherwise have been made in a Rule 35 motion. Accordingly, Campo may not circumvent his burden to show prejudice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
