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United States v. Ben

United States District Court, D. Arizona

September 11, 2015

United States of America, Plaintiff/Respondent,
v.
Lonnie Ben, Defendant/Movant.

REPORT AND RECOMMENDATION

EILEEN S. WILLETT, Magistrate Judge.

TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:

Pending before the Court is Lonnie Ben's ("Movant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) (the "Motion to Vacate"). Respondents have filed their Response (Doc. 10) and Movant has filed a Reply (Doc. 18). The matter is deemed ripe for consideration.

In July 2013, Movant was sentenced to 144 months in prison after pleading guilty to two counts of Assault with a Dangerous Weapon in violation of 18 U.S.C. §§ 1153, 113(a)(3) and one count of Use of a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A). The Motion to Vacate raises two claims alleging that Movant's defense counsel failed to provide effective assistance in connection with the negotiated plea agreement. As the record conclusively shows that Movant is entitled to no relief, it is recommended that the Court deny the Motion to Vacate without holding an evidentiary hearing.[1]

I. BACKGROUND

On October 18, 2012, Movant pointed a firearm at Movant's ex-girlfriend and her new boyfriend. (Doc. 10-1 at 8-9). Movant was indicted on the following counts: one count of Assault with Intent to Commit Murder in violation of 18 U.S.C. §§ 1153, 113(a)(1); three counts of Use of a Firearm in a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A); and two counts of Assault with a Dangerous Weapon in violation of 18 U.S.C. §§ 1153, 113(a)(3). (Case No. CR-12-08250-PCT-NVW, Doc. 14). The indictment also included a forfeiture allegation.

On March 21, 2013, Movant signed a plea agreement in which Movant agreed to plead guilty to Counts 3 and 5 (Assault with a Dangerous Weapon) and Count 4 (Use of a Firearm During and in Relation to a Crime of Violence). (Doc. 10-1 at 2). The plea agreement contains a section entitled "Waiver of Defenses and Appeal Rights" (the "Waiver Provision"). (Doc. 10-1 at 5). The Waiver Provision provides that if Movant's sentence is consistent with the plea agreement, Movant agrees to waive any and all rights to appeal, challenge, or collaterally attack Movant's convictions, sentences, or order of restitution or forfeiture. ( Id. ). The plea agreement also states that Movant read the entire agreement with the assistance of his attorney, agreed to the terms and conditions, entered into the plea voluntarily, and was satisfied with his counsel's representation. ( Id. at 9-10).

On March 21, 2013, U.S. Magistrate Judge Steven P. Logan[2] conducted a change of plea hearing. (Doc. 10-3 at 2-20). After Judge Logan completed the plea colloquy, Movant pled guilty to Counts 3, 4, and 5. ( Id. at 17-18). Judge Logan found that Movant knowingly, intelligently, and voluntarily entered the guilty pleas and understood the charges. ( Id. at 18). On July 23, 2013, Senior District Judge Ronald S.W. Lew held a sentencing hearing. (Doc. 10-6 at 2-31). Judge Lew sentenced Movant to 144 months in prison, followed by a total of five years of supervised release. ( Id. at 26-27). Pursuant to the terms of the plea agreement, Judge Lew dismissed Counts 1, 2, and 6.

On July 21, 2014, Movant, through counsel, filed the Motion to Vacate (Doc. 1). In its August 20, 2014 Order (Doc. 5), the Court ordered the Government to answer the Motion to Vacate.

II. LEGAL STANDARDS

It is a "fundamental rule that plea agreements are contractual in nature and are measured by contract law standards." U.S. v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). The plain language of a plea agreement will be generally enforced if the agreement is clear and unambiguous. Id. This includes a plea agreement's provision whereby a defendant waives the right to challenge his or her conviction and sentence through appeal or a collateral proceeding, such as a § 2255 proceeding. Yet a defendant may still bring a claim alleging that the waiver or plea agreement was involuntary or that the ineffective assistance of counsel ("IAC") rendered the waiver or plea agreement involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); U.S. v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (expressing doubt that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); U.S. v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver).

The two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) applies to IAC claims arising from the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985); Jeronimo, 398 F.3d at 1155. A defendant arguing an IAC claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the defendant. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

To establish the test's performance prong in the context of a guilty plea, a defendant must establish that his or her counsel's advice regarding the guilty plea was outside "the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56-58. Regarding the prejudice prong, a defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 58-59.

Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th ...


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