United States v. Hernandez (450 F. Supp. 2d 950, 2006)

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

BENNETT, Chief District Judge.

TABLE OF CONTENTS

I. INTRODUCTION..........................................................956

A. Charges, Conviction, Sentencing, and Appeal............................956

B. The Motion To Vacate Sentence........................................957

C. The Evidentiary Hearing...............................................958

II. LEGAL ANALYSIS........................................................963

A. Standards For Relief Pursuant To § 2255 ...............................963

B. The “Booker Error”...................................................964

C. Ineffective Assistance Of Counsel.......................................966

1. Applicable standards...............................................966

2. The “ineffective assistance” at issue here............................967

a. Failure to assert an “Apprendi challenge” .......................967

b. Failure to investigate ..........................................968

i. Arguments of the parties...................................968

ii. Pertinent facts............................................969

iii. Analysis..................................................969

c. Failure to challenge sentencing enhancements...................971

i. Arguments of the parties...................................971

ii. Analysis............................... 971

d. Failure to make a multiple conspiracies argument................973

i. Arguments of the parties...................................973

ii. Pertinent facts............................................973

iii. Analysis..................................................973

e. Inadequate advice concerning alternatives to trial................974

i. Applicable standards ......................................974

ii. Application of the standards ...............................975

D. The Remedy..........................................................979

1. Arguments of the parties...........................................979

2. Analysis ..........................................................980

E. Certificate Of Appealability............................................983

III. CONCLUSION............................................................984

This matter comes before the court pursuant to the June 25, 2003, pro se Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (docket no. 97) by defendant Rogelio Hernandez, Jr., as supplemented by counsel on January 6, 2006 (docket no. 121), after initial review by the court, and as further supplemented in the course of an evidentiary hearing on the claims presented. In his motion, as supplemented, Hernandez seeks relief from his sentence to 360 months of imprisonment after conviction by a jury on a charge of conspiracy to distribute 500 grams or more of methamphetamine. Hernandez seeks such relief based on a “Booker error” in his sentencing and ineffective assistance by his trial and appellate counsel in numerous respects. The parties have briefed the issues presented, the court has held an evidentiary hearing, and the parties have submitted post-hearing briefs on certain issues. Therefore, the court finds that the motion is now ripe for disposition.

I. INTRODUCTION

A. Charges, Conviction, Sentencing, and Appeal

In a single-count Indictment handed down on March 24, 2000, defendant Hernandez was charged with conspiracy to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(l)(A)(viii). After he was charged, Hernandez was represented, in quick succession, by the Federal Defender’s Office, by an attorney appointed pursuant to the Criminal Justice Act (CJA), then by R. Scott Rhinehart, the first of Hernandez’s privately-retained attorneys.

On June 6, 2000, Mr. Rhinehart filed a motion to suppress (docket no. 22) on Hernandez’s behalf seeking to suppress statements and evidence obtained from Hernandez in the absence of counsel after he had purportedly asserted his right to an attorney. On August 2, 2000, United States Magistrate Judge Paul A. Zoss filed a Report and Recommendation (docket no. 29) recommending that Hernandez’s motion to suppress be denied. Mr. Rhinehart filed Hernandez’s objections to the Report and Recommendation on August 3, 2000 (docket no. 30), then filed a motion to withdraw (docket no. 31). By order dated August 4, 2000 (docket no. 32), Mr. Rhine-hart was granted leave to withdraw upon the appearance of new counsel and Hernandez’s trial was continued. On September 1, 2000, while Hernandez’s objections to the Report and Recommendation on his motion to suppress were pending, another privately-retained attorney, Jerry J. Trevino from Corpus Christi, Texas, entered an appearance on Hernandez’s behalf. A member of Mr. Rhinehart’s firm appeared as local counsel for Mr. Trevino pursuant to local rules governing admissions pro haec vice. By order dated September 19, 2000 (docket no. 37), the undersigned accepted Judge Zoss’s recommendation that Hernandez’s motion to suppress be denied.

After Hernandez’s motion for a further continuance was granted, Hernandez proceeded to trial before a jury on December 4 through 7, 2000. Although this case was assigned to the undersigned, owing to a conflict in the undersigned’s schedule, this case proceeded to trial before then District Court Judge Michael J. Melloy. Mr. Trevino served as trial counsel. The witnesses at trial consisted of three law enforcement officers, eight alleged co-conspirators, and defendant Hernandez himself. The jury convicted Hernandez and answered a separate interrogatory concerning drug quantity by finding that the offense of conviction involved a conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine. See Verdict Form (docket no. 65).

Hernandez filed both a motion for a new trial on December 12, 2000 (docket no. 67) and a notice of appeal on December 18, 2000 (docket no. 69). In light of the motion for new trial, the undersigned reassigned the ease in its entirety to Judge Melloy by order dated January 2, 2001 (docket no. 71). On January 5, 2001, Judge Melloy denied Hernandez’s motion for new trial. Therefore, Hernandez came on for sentencing before Judge Melloy on April 2, 2001.

At his sentencing hearing, Hernandez was again represented by Mr. Trevino. In the course of the hearing, Judge Melloy found that the offense of conviction was committed while Hernandez was on probation for another offense and determined, based on grouping of prior offenses, that Hernandez’s criminal history category was III. Over Hernandez’s objections, Judge Melloy also imposed enhancements for possession of a dangerous weapon in the course of the offense, Hernandez’s leadership role in the offense, and Hernandez’s obstruction of justice. The last enhancement was based on Judge Melloy’s finding that Hernandez had deliberately testified untruthfully at trial. Judge Melloy initially determined the drug quantity for which Hernandez could be held responsible, based on quantities of methamphetamine, marijuana, and cocaine he found to be involved in the conspiracy, to be equivalent to 78,184 kilograms of marijuana, but based on a review of the evidence at trial, reduced the quantity sufficiently to take Hernandez’s base offense level down from 38 to 36. With other adjustments, Judge Melloy found that Hernandez’s adjusted offense level was 40, which at criminal history category III, meant that Hernandez’s Guidelines sentencing range was 360 months to life. Judge Melloy expressed some surprise, having presided at trial, that Hernandez’s offense level as calculated in the presentence investigation report (PSIR) was not 43, based on an enhancement for drug trafficking within 1,000 feet of a schoolyard, which would have required a mandatory life sentence, but then noted that, under a change in the Guidelines, the “schoolyard” enhancement could not be imposed unless stated in the indictment and submitted to the jury. On the other hand, Judge Melloy observed that this was, in some respects, “a tragic case,” and that he “d[id]n’t think that this case need[ed] a 30-year sentence,” but that he “d[id]n’t have any choice in the matter.” See Sentencing Transcript at 39-40. Judge Melloy then sentenced Hernandez to 360 months of imprisonment, the bottom of Hernandez’s Sentencing Guidelines range.

Hernandez appealed his conviction and sentence to the Eighth Circuit Court of Appeals. See United States v. Hernandez, 281 F.3d 746 (8th Cir.2002). Hernandez was represented on appeal by R. Scott Rhinehart, who had been his counsel at the district court level prior to Mr. Trevino filing his appearance. On appeal, Hernandez asserted that the trial court erred in denying his motion to suppress and that his trial counsel was ineffective for failing to challenge the constitutionality of 21 U.S.C. § 841(b)(1)(A) and (B). See Hernandez, 281 F.3d at 748. The appellate court found that Hernandez’s allegations of ineffective assistance of trial counsel were not cognizable on direct appeal, and affirmed Hernandez’s conviction, rejecting his other arguments. Id. at 749.

B. The Motion To Vacate Sentence

On June 25, 2003, Hernandez filed his pro se Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (docket no. 97), and on October 24, 2003, he filed a supporting brief (docket no. 103). By order dated March 8, 2004 (docket no. 107), the court directed the Clerk of Court to appoint counsel to represent Hernandez in this matter. Attorney Pamela A. Wingert was appointed to represent Hernandez (docket no. 108). Notwithstanding appointment of counsel, Hernandez filed a motion for leave to file a pro se supplement to his § 2255 motion on May 14, 2004 (docket no. 109) and continued to file pro se motions for discovery. On November 18, 2005, Hernandez attempted again to amend his § 2255 motion pro se (docket no. 117).

On December 15, 2005, the court entered an Initial Review Order (docket no. 119). In that order, the court construed Hernandez’s § 2255 motion to seek relief based on ineffective assistance of counsel, in a number of respects, and based on prosecutorial misconduct. The court found the latter claim was procedurally defaulted, but that Hernandez’s § 2255 motion could proceed on his claims of ineffective assistance of counsel. The court also set a briefing schedule on the remaining claims. In a subsequent order dated December 19, 2005 (docket no. 120), the court denied without prejudice Hernandez’s pro se motions to supplement, but permitted Hernandez to refile any supplement, should he so desire, after consulting with his counsel, if he did so on or before January 6, 2006.

On January 6, 2006, Hernandez filed, through counsel, a Motion To Supplement Motion Under 28 U.S.C. § 2255 (docket no. 121) clarifying his grounds for relief. On January 17, 2006, Hernandez filed, again through counsel, a Brief In Support of 28 U.S.C. § 2255 Petition (docket no. 122). As supplemented, Hernandez’s § 2255 motion sought relief on the following grounds: (1) a “Booker error,” based on Hernandez’s contention that there is a reasonable probability that, but for the court’s erroneous belief that the Sentencing Guidelines were mandatory, the court would have imposed a lesser sentence; (2) ineffective assistance of trial counsel in failing to challenge the constitutionality of 21 U.S.C. § 841(b)(1)(A) and (B) to the extent that those provisions permitted the court to make drug quantity determinations in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (3) ineffective assistance of trial counsel in failing to investigate the facts of the case, including facts that would have provided the basis to challenge the credibility of the government’s witnesses and the falsehoods in their trial testimony; (4) ineffective assistance of trial and appellate counsel in failing to challenge sentencing enhancements for obstruction of justice, possession of a firearm, and drug quantity; and (5) ineffective assistance of trial counsel in failing to assert that the evidence showed multiple conspiracies instead of the single conspiracy with which Hernandez was charged.

On March 1, 2006, the government filed its Memorandum In Support Of Its Court Ordered Response To Defendant’s Motion To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C. § 2255 (docket no. 125), in which the government, inter alia, conceded that a hearing would be necessary to address the facts and to resolve some of Hernandez’s allegations of ineffective assistance of counsel. Hernandez’s counsel filed a reply on March 10, 2006 (docket no. 126), in which Hernandez also requested an evidentiary hearing on the issues he has raised.

On June 13, 2006, in light of the parties’ requests, the court set an evidentiary hearing on Hernandez’s § 2255 motion, as supplemented by counsel, for July 28, 2006 (docket no. 127). On July 17, 2006, the court entered another order (docket no. 128) directing the United States Marshal to transport Hernandez to Sioux City, Iowa, for the evidentiary hearing. On July 24, 2006, Hernandez’s appellate counsel, R. Scott Rhinehart, filed a motion to quash the government’s subpoena to appear at the evidentiary hearing (docket no. 129), but the court denied that motion on July 25, 2006 (docket no. 130). Therefore, the stage was set for the evidentiary hearing on Hernandez’s § 2255 motion.

C. The Evidentiary Hearing

At the evidentiary hearing on July 28, 2006, the government was represented by Assistant United States Attorney Janet L. Petersen in Sioux City, Iowa. Defendant Hernandez was represented by Pamela Wingert of Spirit Lake, Iowa. At the hearing, Hernandez testified on his own behalf, and the government presented the testimony of Hernandez’s trial and appellate counsel, Mr. Trevino and Mr. Rhinehart, respectively. Based on the evidence presented at the hearing, the court finds as follows.

Hernandez’s first privately-retained attorney, Mr. Rhinehart, represented Hernandez at the trial level only through the filing of objections to the magistrate judge’s recommended ruling on Hernandez’s motion to suppress. Mr. Rhinehart testified, and the court concurs, that proper evaluation of a criminal defendant’s case in a district with an “open discovery file” policy, such as the Northern District of Iowa, requires, first, checking the discovery file; second, verifying the contents of the discovery file with the defendant, including determination of the extent and basis for any disagreements with the evidence or witness statements in the discovery file; third, if counsel is convinced that the defendant will be convicted on the evidence in the discovery file, notwithstanding any contrary evidence that the defendant can generate, discussing the options for pleading either with or without a cooperation plea agreement, including the benefits and risks of each alternative; and fourth, if trial appears to offer some opportunity of acquittal or the defendant insists on going to trial, making sure that the defendant is fully warned of the consequences of going to trial versus pleading with or without a plea agreement, including loss of sentence reductions for acceptance of responsibility, and if the defendant testifies, possible enhancements for obstruction of justice. He testified further, and again the court concurs, that counsel has a duty to explain to a criminal defendant the likely sentencing range under the Sentencing Guidelines if the defendant goes to trial, pleads guilty without a plea agreement (ie“straight up”), pleads guilty with a “cooperation” plea agreement, or pleads guilty with a “non-cooperation” plea agreement.

Mr. Rhinehart testified, and the court finds, that he had not reached the point where he could properly assess each of the alternatives for disposition of Hernandez’s case before he withdrew, because he simply did not have all of the pertinent information. Mr. Rhinehart testified that when he moved to withdraw, he had really been “pushed out,” because the prosecutor notified him that he had previously represented a person whom the prosecutor contended was a cooperating witness against Hernandez, and the prosecutor continued to press Mr. Rhinehart about his “conflict of interest.” Mr. Rhinehart testified that he had been present for the purported cooperating witness’s debriefing, and did not recall that the purported cooperating witness had identified Hernandez as a participant in any drug-trafficking conspiracy or drug-trafficking activity. On the other hand, Mr. Rhinehart conceded that it was possible that he had not connected anyone identified by the purported cooperating witness as “Ro” with Hernandez. The purported cooperating witness previously represented by Mr. Rhinehart was never actually called by the government at Hernandez’s trial.

The focus of Hernandez’s claims of ineffective assistance of trial counsel is the conduct of his second privately-retained attorney, Mr. Trevino of Corpus Christi, Texas, who appeared after Mr. Rhinehart withdrew. At the time that Mr. Trevino took on representation of Hernandez, Mr. Trevino had represented about five federal criminal defendants, none of whom had gone to trial, and had also represented several state criminal defendants, some of whom had gone to trial. Mr. Trevino did not reveal to Hernandez that his would be Mr. Trevino’s first federal criminal trial, because Mr. Trevino did not believe that fact was relevant in light of his experience with state criminal trials.

Hernandez testified that he only had one private meeting with Mr. Trevino before his trial, while Hernandez was incarcerated in Fort Dodge, and a brief meeting with Mr. Trevino, the prosecutor, and the judge about an hour-and-a-half before trial. Mr. Trevino confirmed that testimony, but pointed out that the distance between Texas and Iowa had presented some difficulties in communication and case preparation. Hernandez also testified that Mr. Trevino advised him that the “maximum” sentence he faced was about twenty years and that going to trial would not significantly change the likely sentence. Indeed, Hernandez testified that Mr. Trevino informed him that the prosecutor was offering a plea agreement for seven years if he would plead guilty pursuant to a plea agreement that required him to cooperate with the government. Mr. Trevino, however, contends that a reference to a seven-year sentence must have been an example of the sentence for a cooperating defendant, because Hernandez’s sentence under such circumstances would have depended upon the government making a motion for a reduction for substantial assistance. Both Mr. Trevino and Hernandez testified that Hernandez was not interested in a “cooperation” plea agreement. Hernandez testified that the extent of the exploration of his possible cooperation was that his counsel read through a list of persons identified by the government, and Hernandez said whether or not he knew or knew about those persons.

Hernandez also testified that Mr. Trevino did not advise him that there could be negative consequences if he testified at trial; rather, he contends that Mr. Trevino advised him that the government would use the “same stuff’ against him at trial, including his pre-trial statement, which the court had declined to suppress, so that testifying at trial “wouldn’t hurt” him. He explained that he testified at trial, because he “trusted” Mr. Trevino’s advice.

Even after he was convicted, Hernandez testified that Mr. Trevino told him his sentence could be up to twenty years, but would probably be about fourteen years, not the thirty years to which he was actually sentenced. However, Hernandez conceded that, either at his initial appearance or his arraignment, or both, the court had advised him that the statutory penalty for the crime with which he was charged was ten years to life imprisonment. Under questioning from the court, Hernandez testified that Mr. Trevino never advised him of the possibility of a sentence enhancement for obstruction of justice, if the sentencing judge found that his trial testimony had been untruthful, and in response to questioning by his current counsel, he testified that he first learned of the possibility of a sentence enhancement for obstruction of justice when he read his PreSentence Investigation Report. Under questioning by the court, Hernandez testified that, had he been advised of the possibility of an enhancement of obstruction of justice based on testifying at trial, he “probably” would have pled guilty, because the obstruction of justice enhancement on top of a fourteen-year sentence “would hurt.” Hernandez also testified that Mr. Trevino never put in writing or advised him orally of possible sentencing calculations based on the options of going to trial or pleading guilty, either with or without a cooperation plea agreement.

Mr. Trevino did not dispute most of Hernandez’s testimony on the nature of his advice about sentencing or going to trial. However, he did state that he “believed” that he had advised Hernandez that if he went to trial and was convicted, his sentence could be a “minimum” of twenty years. Although he testified that he was “fairly certain” that he had explained the options of going to trial and pleading guilty with or without a cooperation agreement, he had no specific recollection of discussing the specific implications for sentence enhancements or reductions that might arise under each scenario. He also testified that his best advice would have been for Hernandez to plead guilty, based on his evaluation of the discovery file and the other circumstances of Hernandez’s case, but that he believed that Hernandez really wanted to go to trial to contest certain factual issues, including the government’s characterization of his role in the offense and whether he was involved in a drug conspiracy at all, and that he wanted “a trial lawyer” who would really “fight it out.” He also confirmed Hernandez’s version of the extent to which he explored “substantial assistance” with Hernandez by testifying that he had only done so to the extent of asking Hernandez if he was willing to share information with the government, but that Hernandez didn’t want to “go that route” and that he had not had recent contact with most of the people on the government’s list of persons against whom he might provide information. Mr. Trevino also conceded that any impression that Hernandez had about his likely sentence probably came from Mr. Trevino’s statements to Hernandez. Even after Hernandez was convicted, Mr. Trevino testified that he had told Hernandez that his sentence was likely to be about fourteen years, because he liked to try to be “optimistic” with defendants under such circumstances.

In response to a question from the court, Mr. Trevino opined that, on a scale of one to ten for expertise with the United States Sentencing Guidelines, with ten being expert, he was probably a six. Still more specifically, Mr. Trevino acknowledged that he had only discussed Hernandez’s possible sentence, whether he went to trial or pleaded guilty, in “generalities,” explaining that what he meant by “generalities” was that he based his sentencing estimates on “the totality of the case,” including a comparison with sentences of alleged co-conspirators and Hernandez’s alleged role as a leader in the conspiracy, as indicated by the government’s discovery file. The “general” estimate he says he gave Hernandez was about twenty years. He also conceded that any sentencing calculations that he gave Hernandez would have been in terms of years, rather than in terms of offense levels and criminal history points, because it was easier for defendants to comprehend such estimates and because defendants tended to be interested only in the “bottom line.” Mr. Trevino also conceded that, despite his professional judgment that it would have been best for Hernandez to plead guilty, even without a plea agreement, rather than to go to trial, he never told Hernandez that it was his best judgment that he would be convicted if he went to trial and that he had never strongly “leaned on” Hernandez to plead guilty. Mr. Trevino also conceded that, with the benefit of hindsight, he now believes he could and should have “leaned on” Hernandez harder to plead guilty.

As to questions of trial strategy, both Mr. Rhinehart and Mr. Trevino testified that the government had prepared a “tree” or “chart” of the organization of the supposed drug conspiracy with Hernandez at the very top, and that Hernandez vehemently disputed that characterization of his role in any conspiracy — indeed, Hernandez disputed that he was involved in any conspiracy. Hernandez identified several key issues that he brought to Mr. Trevino’s attention, but that Mr. Trevino did not follow up on or pursue those issues. One such issue was misidentification of Hernandez as the “brother” of Ramon Hernandez, another drug dealer, and that he was “from California.” Hernandez asserted that he was no relation of Ramon— indeed, that he had only known who Ramon was and had only seen him occasionally at some “Mexican dances” prior to the time that they were both incarcerated in Fort Dodge. He also testified that Ramon had indicated his willingness to testify at Hernandez’s trial that Hernandez was not involved in drug-trafficking with Ramon. Another issue was his belief that his employment records and other records, including bank ATM statements, would show that he was in Mexico for vacations in September and December of 1997, during the alleged conspiracy and at specific times that certain cooperating witnesses said certain conduct in furtherance of the conspiracy occurred. He also complained that Mr. Trevino did not fully examine the criminal histories of various cooperating witnesses. Finally, he testified that he asked Mr. Trevino to pursue a “multiple conspiracies” theory, which was not done.

Mr. Trevino agreed that each of these issues had been brought to his attention, with the exception that he did not recall that Hernandez raised the issue of single or multiple conspiracies before or during trial, but that he did not believe that any of the issues he remembers Hernandez raising would have made a difference at trial. Mr. Trevino considered Ramon Hernandez’s criminal activity sufficiently unsavory that his testimony was unlikely to help Hernandez; that Hernandez had been out of the country during too little of the time encompassed by the alleged conspiracy to disprove his involvement in that conspiracy; and that criminal histories of cooperating witnesses and the evidence of the scope of the alleged conspiracy came out at trial.

Mr. Trevino also corroborated Hernandez’s testimony that Mr. Trevino had provided Hernandez with copies of several discovery motions and motions in limine during his trip to Fort Dodge for their only face-to-face visit. Although Mr. Trevino testified that he learned from the prosecutor that most of the information he was seeking in discovery motions would be available in the “open” discovery file, he could not confirm whether his discovery motions were eventually withdrawn, for example, by a letter to the court. He testified that he also was not sure why there had been no ruling on his motions in limine.

After Hernandez was convicted and sentenced, Hernandez again retained Mr. Rhinehart for purposes of pursuing an appeal. Mr. Rhinehart testified that he attempted to “winnow down” potential issues for appeal to the very best ones. Hernandez did not dispute that Mr. Rhinehart advised him that his “best” issue on appeal concerned denial of his motion to suppress. Mr. Rhinehart also testified that he was concerned to try to preserve any “Apprendi issues” and “ineffective assistance of counsel” issues. Mr. Rhinehart testified, and Hernandez confirmed, that Mr. Rhine-hart sent Hernandez a copy of the draft of an appellate brief for Hernandez’s comment. Mr. Rhinehart testified that he did not receive any direction from Hernandez to pursue additional issues, and Hernandez did not dispute that testimony. Mr. Rhinehart testified that his communications with Hernandez were hampered, because Hernandez was moved, apparently more than once, by the Bureau of Prisons during the time that his appeal needed to be filed and while his appellate brief was being drafted. Nevertheless, Mr. Rhine-hart and Hernandez agreed that they conferred at least once by telephone about the issues and strategy for appeal.

The court asked the parties at the end of the evidentiary hearing whether the record fairly presented a claim of ineffective assistance of trial counsel in failing to advise Hernandez adequately about the benefits and consequences of going to trial versus pleading guilty, either with or without a plea agreement, in addition to the grounds for relief stated in Hernandez’s June 25, 2003, pro se § 2255 motion, as supplemented by counsel. The government conceded that the record did fairly present that issue. At the end of the evidentiary hearing, the court also raised the issue of the proper remedy, should the court grant relief on any of the grounds Hernandez asserted, and the government requested the opportunity to brief the remedies issue. The court set a briefing schedule on remedies issue, which it later confirmed in a written order (docket no. 134). In that order, the court also asked the parties to brief the question of whether or not any resentencing granted as relief on Hernandez’s § 2255 motion would be under the mandatory United States Sentencing Guidelines in effect at the time that Hernandez was originally sentenced.

At the conclusion of the evidentiary hearing, the parties both declined the opportunity to make oral arguments on Hernandez’s § 2255 motion, so that this matter would be deemed fully submitted upon completion of the post-hearing briefing schedule. The government filed its post-hearing brief on remedies issues on August 11, 2006 (docket no. 135). Hernandez filed his brief on those issues on August 25, 2006 (docket no. 137). Therefore, this matter is now fully submitted.

II. LEGAL ANALYSIS

A. Standards For Relief Pursuant To § 2255

Turning to the legal analysis of Hernandez’s claims, in light of the evidence presented at the evidentiary hearing and the other evidence in the record, the court notes, first, that 28 U.S.C. § 2255 provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255; Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.2003) (“To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States.”). Thus, a motion pursuant to § 2255 “is ‘intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.’ ” United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995) (quoting Wilson). On the other hand,

Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice, United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice. See United States v. Smith, 843 F.2d 1148, 1149 (8th Cir.1988) (per curiam).

Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.1993) (per curiam); accord Johnson v. United States, 278 F.3d 839, 844 (8th Cir.2002) (“In order to obtain collateral review of a procedurally defaulted issue, [a § 2255 movant] must show ‘either cause and actual prejudice, or that he is actually innocent.’ ”) (quoting Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), with citations omitted).

The “cause and prejudice” that must be shown to resuscitate a procedurally defaulted claim may include “ineffective assistance of counsel.” See Becht v. United States, 403 F.3d 541, 545 (8th Cir.2005). Otherwise, “[t]he Supreme Court recognized in Bousley that ‘a claim that “is so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default.’ ” United States v. Moss, 252 F.3d 993, 1001 (8th Cir.2001) (quoting Bousley, 523 U.S. at 622, 118 S.Ct. 1604, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). “Actual prejudice” requires a showing that the alleged error “ ‘worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Johnson, 278 F.3d at 844 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and explaining, further, that the movant must show that there is a substantial likelihood that, absent the error, a jury would have acquitted ■ him of the charged offense). To establish “actual innocence,” as an alternative way to resuscitate a procedurally defaulted claim, “ ‘petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.’ ” Id. (quoting Bousley, 523 U.S. at 623, 118 S.Ct. 1604). “ ‘This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the charged offense].’ ” Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir.2001)).

The Eighth Circuit Court of Appeals will review the district court’s decision on a § 2255 motion de novo, regardless of whether the district court’s decision grants or denies the requested relief. Compare United States v. Hilliard, 392 F.3d 981, 986 (8th Cir.2004) (“We review the district court’s decision to grant or deny relief on a petitioner’s ineffective assistance of counsel claim de novo.”) (citing United States v. White, 341 F.3d 673, 677 (8th Cir.2003)); with United States v. Hernandez, 436 F.3d 851, 854 (8th Cir.2006) (“ We review de novo the district court’s denial of a section 2255 motion.’ ”) (quoting Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005)). However, “[a]ny underlying fact-findings are reviewed for clear error.’ ” Hernandez, 436 F.3d at 855 (quoting United States v. Davis, 406 F.3d 505, 508 (8th Cir.2005)).

With these standards in mind, the court turns to analysis of each of Hernandez’s claims for § 2255 relief.

B. The “Booker Error”

Hernandez’s first claim for § 2255 relief is an alleged “Booker error,” based on Hernandez’s contention that there is a reasonable probability that, but for the court’s erroneous belief that the Sentencing Guidelines were mandatory, the court would have imposed a lesser sentence. This is apparently a contention that his “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255 (stating this and other grounds for relief); Bear Stops, 339 F.3d at 781 (“To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States.”).

Hernandez concedes that he did not raise this issue on direct appeal, but contends that his failure to do so means only that the claim is now subject to “plain error” review. In the brief filed by counsel on his behalf, Hernandez argues that there is no dispute that it is plain error for the district court to sentence a defendant under the mandatory guidelines regime and no dispute that substantial rights are thereby affected. His contention that there is at least a reasonable probability that his sentence would have been lower, if the court had not entertained the erroneous belief that the Sentencing Guidelines were mandatory, is based on comments made by the sentencing judge that a 360-month sentence was not appropriate in this case, but that the judge had “no choice in the matter.” He contends that, in the interests of justice, a shorter sentence should be imposed. In response, the government contends that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is not applicable to cases that became final before the “new rule” in Booker was announced on January 12, 2005.

Hernandez bases his contention that this claim, which was not raised on direct appeal, is subject to “plain error” review when raised in a § 2255 motion on his reading of United States v. Pirani, 406 F.3d 543 (8th Cir.2005). The Pirani decision, however, stands for no such proposition. Rather, the Pirani decision stands for the proposition that errors not properly preserved at trial are reviewed only for “plain error” on direct appeal, and that this standard of review “applies even when ... the error results from a change in the law that occurred while the case was pending on appeal.” See Pirani, 406 F.3d at 549 (emphasis added). In contrast, in the circumstances presented here, Hernandez’s subsequent collateral attack, via a § 2255 motion, Hernandez cannot pursue his “Booker claim” unless he can establish “cause and prejudice” for failure to pursue the claim on direct appeal. See Johnson, 278 F.3d at 844 (“In order to obtain collateral review of a procedurally defaulted issue, [a § 2255 movant] must show ‘either cause and actual prejudice, or that he is actually innocent.’ ”) (quoting Bousley, 523 U.S. at 622, 118 S.Ct. 1604, with citations omitted); Ramey, 8 F.3d at 1314 (§ 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of “cause and prejudice,” or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice).

Notwithstanding his assertion that “plain error” review is applicable, Hernandez also appears to assert that he has shown “cause and prejudice” for his procedural default of this claim, which was not raised on direct appeal, because he argues that the result in his case would have been different if his counsel had raised the “Booker error” in a timely manner. See Becht, 403 F.3d at 545 (“ineffective assistance of counsel” may constitute the “cause and prejudice” that must be shown to resuscitate a procedurally defaulted claim). The court will consider the merits of Hernandez’s “Booker claim,” assuming for the sake of argument that counsel’s failure to raise the issue on direct appeal constitutes the necessary “cause and prejudice” to overcome Hernandez’s procedural default of the claim.

Upon consideration of the merits of that claim, however, the court agrees with the government that Hernandez’s claim of a “Booker error” is foreclosed. The Eighth Circuit Court of Appeals has held that Booker does not apply retroactively to cases on collateral review, such as Hernandez’s motion for § 2255 relief. See Never Misses A Shot v. United States, 413 F.3d 781 (8th Cir.2005) (per curiam). Therefore, Hernandez is not entitled to any relief on his claim of a “Booker error.”

C. Ineffective Assistance Of Counsel

The other claims on which the court permitted Hernandez’s motion for § 2255 relief to proceed following initial review as well as the claim that the government conceded was fairly presented by the record during the evidentiary hearing are based on the alleged ineffective assistance of Hernandez’s trial and appellate counsel. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const, amend. VI. Thus, a criminal defendant is constitutionally entitled to the effective assistance of counsel both at trial and on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir.2003). By the same token, “ineffective assistance of counsel” could result in the imposition of a sentence in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255; Bear Stops, 339 F.3d at 781 (“To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States.”). The Eighth Circuit Court of Appeals has expressly recognized that a claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather than on direct appeal, because it often involves facts outside of the original record. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.2003) (“When claims of ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”). Thus, whether or not Hernandez is entitled to relief on his § 2255 motion turns on whether or not he can satisfy the standards applicable to his “ineffective assistance” claims.

1. Applicable standards

As the Eighth Circuit Court of Appeals has explained, “ ‘The applicable law here is well-established: post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel unless the petitioner can show not only that counsel’s performance was deficient but also that such deficient performance prejudiced his defense.’ ” United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.2005) (quoting Saunders v. United States, 236 F.3d 950, 952 (8th Cir.2001), in turn citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Davis v. Norris, 423 F.3d 868, 877 (8th Cir.2005) (“To prove that his counsel rendered ineffective assistance in violation of the Sixth Amendment, [the movant] must satisfy the two prong test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),” which requires the movant to “show that his counsel’s performance was deficient” and that he was “prejudiced”).

The “deficient performance” prong requires the movant to “show that his ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” United States v. Rice, 449 F.3d 887, 897 (8th Cir.2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). That showing can be made by demonstrating that counsel’s performance “ ‘fell below an objective standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). There are two substantial impediments to making such a showing, however. First, “ ‘[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Second, “[t]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); Davis, 423 F.3d at 877 (“To satisfy this prong [the movant] must overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance.”). If the movant fails to show deficient performance by counsel, the court need proceed no further in its analysis of an “ineffective assistance” claim. United States v. Walker, 324 F.3d 1032, 1040 (8th Cir.2003).

Even if counsel’s performance was “deficient,” the movant must also establish “prejudice” to overcome the presumption of reasonable professional assistance. Ledezma-Rodriguez, 423 F.3d at 836; Davis, 423 F.3d at 877. To satisfy this “prejudice” prong, the movant must show “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... [,] a reasonable probability [meaning] a probability sufficient to undermine confidence in the outcome.’ ” Rice, 449 F.3d at 897 (again quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); Davis, 423 F.3d at 877 (same). Thus, “ ‘[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.’ ” Pfau v. Ault, 409 F.3d 933, 939 (8th Cir.2005) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). Although the two prongs of the “ineffective assistance” analysis are described as sequential, courts “do not ... need to address the performance prong if petitioner does not affirmatively prove prejudice.” Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir.1999) (citing Pryor v. Norris, 103 F.3d 710 (8th Cir.1997)).

Hernandez contends that his trial and appellate counsel were ineffective in numerous ways. The court will consider Hernandez’s allegations in turn.

2. The “ineffective assistance” at issue here

a. Failure to assert an “Apprendi challenge”

Hernandez’s first claim of ineffective assistance of counsel is based on his trial counsel’s failure to challenge the constitutionality of 21 U.S.C. § 841(b)(1)(A) and (B) to the extent that those provisions permitted the court to make drug quantity determinations that affected the length of his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He contends that, even though the decision in Apprendi was brought to counsel’s attention before sentencing, counsel still did not specifically raise a challenge to findings of drug quantities by the court based on the court’s credibility determinations. Thus, he contends that he was sentenced on the basis of drug quantities that were not proved to a jury beyond a reasonable doubt. He argues that the constitutional issue should have been apparent at the time of sentencing and that his counsel’s failure to raise it prejudiced him, because a higher sentence was imposed.

In response, the government points out that Apprendi held only that jury determination is required for facts that increase a defendant’s maximum statutory sentence. The government asserts that the jury in Hernandez’s case made the necessary factual determination beyond a reasonable doubt by determining, in response to a separate interrogatory, that Hernandez’s offense involved 500 grams or more of a methamphetamine mixture, thereby establishing Hernandez’s maximum statutory sentence as life imprisonment. Where Hernandez was actually sentenced to a shorter term of imprisonment, 360 months, the government contends that there was no Apprendi violation, and no prejudice to Hernandez from counsel’s conduct.

This ground affords Hernandez no relief. First, the government is correct that Apprendi did not, on its face, address judicial fact-finding that establishes the maximum Guidelines sentencing range, because Apprendi was cast only in terms of a constitutional requirement for jury determination of facts that establish the maximum statutory penalty. See Apprendi 530 U.S. at 490, 120 S.Ct. 2348. The decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which applied Apprendi to invalidate that part of Washington State’s sentencing scheme that allowed a judge to find facts increasing the defendant’s mandatory guidelines sentence, had not been handed down at the time of Hernandez’s sentencing. The court cannot find that counsel was constitutionally ineffective in failing to raise Hernandez’s argument concerning judicial fact-finding under mandatory Sentencing Guidelines, based on Apprendi because “[w]hile the Constitution guarantees criminal defendants a competent attorney, it ‘does not insure that defense counsel will recognize and raise every conceivable constitutional claim.’ ” Anderson v. United States, 393 F.3d 749, 754 (8th Cir.2005) (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Thus, this claim fails on the first prong of the “ineffective assistance” analysis, because counsel’s performance was not “deficient.” See Ledezmar-Rodriguez, 423 F.3d at 836 (to prove an “ineffective assistance” claim, the movant must first show that counsel’s perfonnance was “deficient”); Davis, 423 F.3d at 877 (same). Because there was no “deficient performance,” the court need not consider the “prejudice” prong for this “ineffective assistance” claim. Walker, 324 F.3d at 1040.

Hernandez is not entitled to any relief on this claim.

b. Failure to investigate

i. Arguments of the parties. Hernandez’s next claim of ineffective assistance of counsel is that trial counsel failed to investigate the facts of the case, including facts that would have provided the basis to challenge the credibility of the government’s witnesses and the falsehoods in their trial testimony. In the brief filed by his counsel, Hernandez contends that the government’s case relied largely upon the testimony of informants, so that a thorough understanding of the facts of the case was essential to effective cross-examination of those witnesses. Hernandez points out that counsel came to Iowa from Texas only shortly before the trial and spent “minimal” time with Hernandez, consisting of a single face-to-face meeting. Hernandez also asserts that counsel never reviewed his notes on the discovery file with Hernandez, so that Hernandez did not have the opportunity to help prepare counsel to cross-examine witnesses on specifics of their testimony. Hernandez contends that he also had information about his trips in and out of the country and his work records, which would have cast doubt on or contradicted the witnesses’ versions of the timing of certain events and the criminal activities that he had allegedly engaged in. Hernandez also complains that counsel did not call any other witnesses to support Hernandez’s version of events, even though such witnesses were available and willing to testify. The result, Hernandez contends, was that the informants’ versions of events went largely unchallenged at trial, to his prejudice. The government responded to this claim by conceding that an evidentiary hearing was required to determine what counsel did or did not do.

ii. Pertinent facts. From evidence presented at the evidentiary hearing, the court finds the following pertinent facts. Mr. Trevino conceded that the issues that Hernandez now raises concerning investigation of grounds for impeachment of cooperating witnesses had been brought to his attention, including Hernandez’s contention that he was out of the country during part of the period of the alleged conspiracy, and more specifically, that he was out of the country at times when the cooperating witnesses testified that he had engaged in certain conduct in furtherance of the conspiracy. However, Mr. Trevino did not believe that investigation of Hernandez’s contentions would make a difference at trial. Mr. Trevino considered Ramon Hernandez’s criminal activity sufficiently unsavory that his testimony was unlikely to help Hernandez; that Hernandez had been out of the country during too little of the time encompassed by the alleged conspiracy to disprove his involvement in that conspiracy; and that criminal histories of cooperating witnesses and the evidence of the scope of the alleged conspiracy came out at trial.

iii. Analysis. On the “deficient performance” prong of the “ineffective assistance” analysis, the Eighth Circuit Court of Appeals has repeatedly stated that “ ‘[rjeasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories.’ ” Lyons v. Luebbers, 403 F.3d 585, 594 (8th Cir.2005) (quoting Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.1993)). As a corollary of that principle, courts have also recognized that “ ‘[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). The strength of the presumption that counsel’s performance was reasonable “turns on the adequacy of counsel’s investigation.” White v. Roper, 416 F.3d 728, 732 (8th Cir.2005). Where, for example, counsel’s investigation was “too superficial” to reveal the strengths or weaknesses of testimony supporting the government’s or the defendant’s case, or to discover evidence providing powerful support for the defendant’s version of events, “the presumption of sound trial strategy founders ... on the rocks of ignorance.” Id.

Here, the court cannot find that Mr. Trevino’s conduct was “deficient” in the way alleged here. Mr. Trevino had investigated the discovery file, and was aware of grounds to impeach the cooperating witnesses, and also investigated Ramon Hernandez’s criminal history sufficiently to gauge his perceived credibility for a jury and his value otherwise as a witness in support of Hernandez’s contention that he was not involved in a conspiracy with Ramon. The court cannot find that his investigation was “too superficial” to reveal the strengths or weaknesses of the government’s evidence. Cf. White, 416 F.3d at 732 (an investigation that is “too superficial” to reveal the strengths or weaknesses of the government’s case is deficient).

More specifically, counsel’s decision not to call Ramon Hernandez as a witness, after evaluating his value as a witness, clearly fell within the realm of sound trial strategy to which a presumption of soundness applies. Rice, 449 F.3d at 897 (“ ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ”) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Hernandez has not overcome that presumption. Similarly, counsel’s decision not to attempt to impeach the cooperating witnesses on some few details based on evidence that Hernandez was in Mexico at the times that the witnesses asserted that certain events occurred is not without a reasonable strategic basis. Hernandez was present in this country for the vast majority of the time that he was alleged to be a member of the conspiracy, and the dates of his conduct alleged by the cooperating witnesses were not so specific that showing Hernandez’s absence at a certain time would necessarily have demonstrated that the cooperating witnesses were wrong about whether such events occurred, as opposed to merely wrong about precisely when such events occurred. The court notes that Hernandez has still not produced the evidence from his employment records and ATM transactions that he contends that counsel should have discovered to show when he was out of the country. Finally, Hernandez conceded that his counsel did bring up the cooperating witnesses’ plea agreements during cross examination. Therefore, this “ineffective assistance” claim fails on the “deficient performance” prong of the analysis.

Even if counsel’s investigation was somehow “deficient,” a defendant seeking § 2255 relief must still show “prejudice.” Ledezma-Rodriguez, 423 F.3d at 836; Davis, 423 F.3d at 877; see also White, 416 F.3d at 732 (also requiring proof of “prejudice” on an “ineffective assistance” claim based on deficient performance); Lyons, 403 F.3d at 594 (same). To demonstrate “prejudice” in the context of a claim of failure to investigate, the defendant cannot rely on general allegations of what a proper or reasonable investigation would have revealed, but must show specifically what would have been revealed by further investigation and how the further evidence would have made a different outcome to the trial a reasonable probability. See, e.g., Palmer v. Clarke, 408 F.3d 423, 445 (8th Cir.2005) (the defendant could not show “prejudice,” because he failed to demonstrate specifically what further evidence would have been uncovered and how it would have affected the outcome of the trial, and instead, rested on “general allegations,” which the court held were insufficient); Nooner v. Norris, 402 F.3d 801, 810 (8th Cir.2005) (the movant failed to demonstrate “prejudice” on his claim of failure to investigate, because the movant failed to identify what evidence of “psychiatric and mental problems” was not presented to the jury, and the movant offered no additional details).

Hernandez has not made the necessary showing on the “prejudice” prong. He has no more than speculation to support his contention that Ramon Hernandez’s testimony would have made a different outcome likely, and indeed, the court concurs in counsel’s view that offering the testimony of such a witness could have hurt Hernandez more than it would have helped. While Hernandez attempted to identify during the evidentiary hearing the specific aspects of the testimony of cooperating witnesses that his absences from the country would have impeached, the court finds, again, that Hernandez was present in this country for the vast majority of the time that he was alleged to be a member of the conspiracy and that the dates of his conduct alleged by the cooperating witnesses were not so specific that showing Hernandez’s absence at a certain time would necessarily have demonstrated that the cooperating witnesses were wrong about whether such events occurred, as opposed to merely wrong about precisely when such events occurred. The court notes that Hernandez has still not produced the evidence from his employment records and ATM transactions that he contends that counsel should have discovered to show when he was out of the country. Thus, the court cannot say that, but for the “deficient” conduct of counsel, if any, that Hernandez has shown either what specific evidence would have made a difference or that a different outcome to the trial in light of that evidence was a reasonable probability. See, e.g., Palmer, 408 F.3d at 445. Thus, this claim also fails on the “prejudice” prong.

Therefore, Hernandez is not entitled to relief on this claim of ineffective assistance of counsel.

c. Failure to challenge sentencing enhancements

i. Arguments of the parties. Hernandez’s next claim of “ineffective assistance” is that trial and appellate counsel failed to challenge sentencing enhancements for obstruction of justice, possession of a firearm, and drug quantity. In the brief filed by his counsel, Hernandez argues that, although trial counsel objected to each of these enhancements, he failed to object on the basis that the Constitution requires that the jury make the necessary factual determinations, but that the jury had not done so in his case. In other words, Hernandez contends that the jury had not determined that his trial testimony amounted to perjury, that he possessed a firearm in connection with his drug enterprise, or that the conspiracy involved the specific quantities of controlled substances upon which his sentence was based, including controlled substances other than the methamphetamine mixture upon which the conspiracy charge was based. Hernandez also contends that counsel filed motions in limine regarding evidence of drugs other than methamphetamine, but failed to secure a ruling on those motions, thus failing to preserve the error for appeal.

The government contends that, to the extent that these claims are really allegations of “Booker errors,” they should be rejected for the same reason that Booker is inapplicable to Hernandez’s collateral attack on his sentence for failure to depar