The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
INITIAL RECOMMENDATION TO DENY DEFENDANT'S MOTION FOR AN EVIDENTIARY HEARING OF DEFENDANT'S 28 U.S.C § AND RECOMMENDING DENIAL 2255 CLAIM ON THE MERITS Docket 90
Defendant, David P. Geozos filed an amended Motion to Vacate his sentence seeking relief under 28 U.S.C. § 2255 at Dockets 101 and 102. The Government filed it's opposition at Docket 103. Following the Government's motion to dismiss, the parties filed briefing on the merits of Defendant's habeas request. Defendant filed his opening brief at Docket 113; the Government's opposition was filed at Docket 119, and the Defendant's reply at Docket 120.*fn1
The Defendant entered into a plea agreement for one count of felon in possession of a firearm and ammunition and one count of unlawful possession of a controlled substance on January 12, 2007.*fn2 Following his entrance into a plea agreement, Defendant obtained a new attorney. On January 17, 2007, Dan Libbey, Defendant's new counsel, filed his entry of appearance.*fn3 Prior to sentencing, Mr. Libbey filed a motion to continue sentencing and for limited withdrawal as counsel.*fn4 Charles Coe was then appointed to represent the Defendant.*fn5 As a result, Mr. Coe represented the Defendant at sentencing with the help of Mr. Libbey.*fn6
United States District Court Judge Ralph Beistline held a sentencing hearing on July 10, 2007. Mr. Coe argued that the Defendant should not be sentenced under the Armed Career Criminal Act (ACCA) and that the Court had discretion to depart from the mandatory minimum sentence of 15 years. Judge Beistline rejected Defendant's arguments and sentenced Mr. Geozos to 15 years imprisonment and 5 years of supervised release.*fn7
On July 11, 2007, the Defendant filed his Notice of Appeal.*fn8 The District Court entered it's final judgment on July 17, 2007.*fn9 The Court of Appeals for the Ninth Circuit denied the Defendant's appeal and affirmed his sentence on August 12, 2008.*fn10 On November 6, 2009, Defendant filed this instant Motion to Vacate under 28 U.S.C. § 2255.*fn11 Defense counsel, Heather Gardner, was assigned to represent the Defendant on December 1, 2009.
Defendant files his Motion to Vacate pursuant to 28 U.S.C. § 2255 as a means to challenge his sentence. The relevant portion of the statute outlines the burden the Defendant must establish:
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that  the sentence was imposed in violation of the Constitution or laws of the United States, or  that the court was without jurisdiction to impose such sentence, or  that the sentence was in excess of the maximum authorized by law, or  is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The Defendant argues that his sentence is subject to collateral attack because he was denied his Sixth and Fourteenth Amendment*fn12 rights to effective assistance of counsel for his sentencing.
B. Ineffective Assistance of Counsel
The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense."*fn13 The Sixth Amendment guarantee has two components. The right to counsel's undivided loyalty and the right to reasonably competent counsel.*fn14
The standard for ineffective assistance of counsel claims comes from Strickland v. Washington.*fn15 Strickland established a two-prong test where a defendant must show not only that his attorney's representation was deficient but also that the attorney's representation prejudiced his cause.*fn16 The defendant bears the burden of establishing that his attorney's ...