United States District Court, D. Arizona
James A. Teilborg, Senior United States District Judge.
Pending before this Court is Movant’s motion to vacate, set aside, or correct sentence. The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Motion be denied. (Doc. 14).Petitioner has filed objections to the R&R (Doc. 15) and a request to supplement (Doc. 16). This Court will review the portions of the R&R to which there is an objection de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
As recounted in the R&R, Petitioner pleaded guilty on December 5, 2013 before a Magistrate Judge. (R&R at 2). On December 23, 2013, this Court adopted the findings and recommendations of the Magistrate Judge regarding the guilty plea. (R&R at 3-4). On April 14, 2014, Movant’s counsel moved to withdraw. (R&R at 4). This Court granted that motion and appointed new counsel. (R&R at 4). On June 4, 2014, this Court sentenced Movant. (R&R at 4). Now pending before this Court is Movant’s motion to withdraw from his plea (and presumably proceed to trial) because his plea was not knowingly and voluntarily entered. (R&R at 5-6). Movant premises this argument on various theories of ineffective assistance of counsel. (R&R at 6).
As the R&R notes, Movant was sentenced to 57 months under the plea agreement. (R&R at 5). If Movant prevails on this motion and is later convicted at trial, he could be sentenced to life in prison. (R&R at 3).
As the R&R discusses, Movant, via his plea agreement, waived his right to collaterally attack his sentence, including bringing this motion. (R&R at 7-9). Thus, Movant may only bring this motion if he can show that his claims support an argument that his plea agreement was not knowingly and voluntarily made. (R&R at 8-9). If Movant cannot make this showing, his waiver of his right to collaterally attack his sentence is enforceable, and the Court will not reach the merits of his Motion. (R&R at 8). Movant has eight theories of ineffective assistance of counsel and one theory of prosecutorial misconduct which he claims support his argument that his plea was not knowingly and voluntarily made. See (Objections at 6-31).
The R&R goes through each theory of ineffective assistance of counsel argued by Movant. The R&R applies Strickland v. Washington, 466 U.S. 668 (1984). (R&R at 9-10). Movant objects to the application of Strickland in this case because he argues that his plea counsel had a conflict of interest and therefore all of his arguments should be analyzed under Cuyler v. Sullivan, 446 U.S. 335, (1980). (Objections at 4). Petitioner is correct that in certain circumstances, Cuyler is the appropriate standard to use for ineffective assistance of counsel claims specifically premised on a conflict of interest.
A defendant’s Sixth Amendment right to effective assistance of counsel “includes the entitlement to representation that is free from conflicts of interest.” United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005). To establish a violation of this right, a defendant “must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, (1980)).
Murdaugh v. Ryan, 724 F.3d 1104, 1123 (9th Cir. 2013).
Movant presumes his claims are covered by Cuyler because Movant presumes his counsel has a conflict of interest. It is true that when Movant’s counsel withdrew, counsel stated that he had a conflict of interest at that time that necessitated withdrawal. Doc. 614 in CR 12-877. However, Movant makes no showing that at the time his counsel advised him to plead guilty, or at the change of plea hearing, counsel was already suffering from a conflict of interest. “To make out [a Cuyler] claim, ‘a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler, 446 U.S. at 348.” Bemore v. Chappell, 788 F.3d 1151, 1161-62 (9th Cir. 2015). Here, because Movant made no objection at sentencing, and still fails to show that his counsel had an actual conflict during representation, the Court finds Strickland governs Movant’s claims. Thus, this objection is overruled.
Moreover, the reason Movant wants his claims to be considered under Cuyler rather than Strickland is because Movant wants prejudice to be “presumed, ” rather than Movant being required to show prejudice. (Objections at 4). However, in this case, counsel never engaged in joint representation of co-defendants as was this issue in Cuyler; thus, the prejudice prong of Strickland must still be proven by Movant. Specifically:
In Mickens v. Taylor, the Supreme Court revisited the conflict issue and clarified its holding from Cuyler. The Supreme Court stated that the general rule requiring a showing of prejudice consistent with the standard set forth in the familiar Strickland standard still applies in the conflict context and identified Cuyler as an exception to this general rule applicable in cases of multiple representation. See 535 U.S. 162, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). The Court characterized the Strickland prejudice requirement as an additional element for a conflict claim not involving multiple representation. See Id. at 174. Therefore, under Cuyler, Bonin, and Rich, petitioner must demonstrate that an actual conflict adversely affected counsel’s performance. Under Mickens, petitioner must also demonstrate actual prejudice with respect to the outcome of the trial.
Edwards v. Scribner, 2007 WL 2729068, at *8 (E.D. Cal. Sept. 18, 2007) report and recommendation adopted, 2008 WL 619063 (E.D. Cal. Mar. 5, 2008). Accordingly, even if Movant’s legal objection was sustained, Movant would still be required to show ...