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Loyal v. USA

United States District Court, D. Arizona

August 25, 2016

Al-Quan Romain Loyal, Petitioner,
USA, Respondent.


          Hon. G. Murray Snow, United States District Judge.

         Pending before the Court is Petitioner Al-Quan Romain Loyal's Writ of Habeas Corpus filed as a Motion to Vacate, Set Aside, or Correct Sentence (“Motion”) pursuant to 28 U.S.C. § 2255. (Doc. 1.) On December 8, 2015, United States Magistrate Judge Michelle H. Burns issued a Report and Recommendation (“R & R”) recommending that Loyal's Motion be denied. (Doc. 16.) Loyal timely filed objections. (Doc. 17.) For the following reasons, the Court adopts the R & R in full.


         On February 24, 2009, Loyal entered into an open plea[1] admitting guilt as to each count in the government's 4-count superseding indictment. On December 22, 2010, after denying Loyal's Motion to Withdraw Plea of Guilty, this Court sentenced Loyal to 352 months imprisonment. On January 3, 2011, Loyal filed a direct appeal to the Ninth Circuit which affirmed the conviction and judgment. On October 3, 2014, Loyal filed the present Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255. The R & R sets forth a detailed procedural and factual background to this case, to which no party objects. Accordingly, the Court adopts this background and does not repeat it here.

         Loyal raises three arguments in his Motion. First, Loyal argues that his Fifth and Sixth Amendment rights were violated when the district court, while conducting a conflicts hearing, did not allow Loyal to be present for the first-half of the hearing that addressed the potential conflicts between Loyal's co-defendant, Freddie Brown, and his attorney Paul Bergrin, who had previously represented Loyal. Second, Loyal argues that he received ineffective assistance of counsel in violation of his Fifth and Sixth Amendment rights when his attorney, Thomas Moran, Jr., did not have him present for the conflict hearing regarding Brown and Bergrin, and did not adequately counsel Loyal so as to ensure that he knowingly waived any conflict that may have resulted from Moran's representation of Loyal. Third, Loyal argues that Moran provided ineffective assistance of counsel in violation of Loyal's Fifth and Sixth Amendment rights when he advised Loyal to enter into an open plea.

         The R & R recommends that the Court dismiss Loyal's Motion with prejudice on all three grounds.


         I. Legal Standard

         A “district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and file written objections” to the R & R. § 636(b)(1). “A judge of the court shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” Id. A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         II. Analysis

         Loyal's first two objections both challenge the Magistrate Judge's recommended holding that any issues presented by Loyal's absence from the first half of the conflicts hearing were cured by his subsequent voluntary and intelligent guilty plea. Loyal's third objection challenges the Magistrate Judge's recommended finding that Moran provided Loyal effective assistance of counsel when he recommended he enter into an open plea.

         A. Loyal's First and Second Objections

         “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea . . . .” Tollett v. Henderson, 411 U.S. 258, 267 (1973); see, e.g., United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (“An unconditional guilty plea waives all nonjurisdictional, antecedent defects.”) (citations omitted); United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.”) (citations omitted). Courts have held that pre-plea “jurisdictional” errors “include only those claims in which, judged on the face of the indictment and record, the charge in question is one which the state [or federal government] may not constitutionally prosecute.” United States v. Johnston, 199 F.3d 1015 (9th Cir. 1999). Some examples of permissible pre-plea jurisdictional challenges include: vindictive prosecution, Blackledge v. Perry, 417 U.S. 21, 30-31 (1974); double jeopardy, Menna v. New York, 432 U.S. 61, 62 (1975); and an underlying criminal statute that is “unconstitutional or unconstitutionally vague on its face, ” United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006 (9th Cir. 2000). See Hill v. White, 2011 WL 1641889, at *6 (D. Ariz. Apr. 4, 2011).

         Loyal asserts that even though his challenges focus on past instances of constitutional infirmity, they carry with them a taint that infects the nature of his eventual guilty plea, and thus he is attacking the “voluntary and intelligent character of [his] guilty plea”-a permissible attack under Tollett. According to Menna, however, the result of a guilty plea is that it “renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.” Menna, 423 U.S. at 63 n.2. Here, the alleged taint resulting from Loyal not being present at the Brown conflict hearing, and Loyal's subsequent waiver of any conflict with Moran, does not undermine the valid establishment of Loyal's factual guilt demonstrated by his guilty plea. See Id. (explaining that a pre-plea jurisdictional double jeopardy challenge is permissible because “the claim is that the State may not convict petitioner no matter how validly his factual guilt is established”); see also Tollett, 411 U.S. at 267 (“[I]t is not sufficient for the criminal defendant seeking to set aside [] a plea to show that his ...

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