United States District Court, D. Arizona
G. Murray Snow, United States District Judge.
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.
February 24, 2009, Loyal entered into an open
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.
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.
& R recommends that the Court dismiss Loyal's Motion
with prejudice on all three grounds.
“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.
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.
Loyal's First and Second Objections
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).
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 ...