United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Movant Parris Frazier has filed a Motion to Vacate, Set
Aside, or Correct Sentence by a person in Federal Custody
pursuant to 28 U.S.C. § 2255, seeking to vacate or set
aside a sentence imposed by the Court. (Doc.
SUMMARY OF CONCLUSION.
argues counsel provided ineffective assistance by failing to
work on his defense and pressuring him to plead guilty.
Petitioner's statements during his change of plea
proceeding and sentencing contradict his claims. Petitioner
offers nothing more than conclusory assertions that are also
refuted by the facts of his case. Petitioner's amended
claim is meritless. The Court will recommend the Motion be
February 23, 2016, pursuant to a plea agreement, Movant
pleaded guilty to Possession of a Firearm in Furtherance of a
Drug Trafficking Offense in violation of 18 U.S.C. §
924(c)(1)(A)(i), and stipulated to a term of imprisonment
between six and ten years. (CR Doc. 48.) Movant admitted the
following facts in his plea agreement were true:
On or about February 11, 2015, I met a man named
“Carlos” who I believed was a drug trafficker but
who was really an undercover employee. On two occasions he
told me where vehicles containing drug money were located in
the Arizona desert and I along with my friend, Randon Berg,
went to steal that money but only found $7000 in one of the
vehicles. I continued to work with “Carlos” and
on an unknown date in July 2015, I agreed to steal cocaine
for “Carlos” and he would buy the cocaine from me
for $15, 000 per kilogram. I expected there to be 7-10
kilograms concealed in the car. I recruited Robert Deatherage
and Erik Foster to help me steal the cocaine. They knew that
I intended to sell it to “Carlos” that same day
and we would all split the proceeds. On July 22, 2015, Robert
Deatherage, Erik Foster and I, drove in a Toyota Camry to a
location in Phoenix, AZ where I met with “Carlos”
in a parking lot in order to find out where the cocaine was
located. After meeting with “Carlos”, I returned
to the Toyota Camry and the three of us followed
“Carlos” to a warehouse located on 39th Avenue in
Phoenix, AZ where we believed the cocaine would be located in
a vehicle. We removed the license plate of the Camry in order
to conceal our identities. Prior to entering the warehouse
parking lot, we conducted counter-surveillance. Foster was
driving the Camry. I exited the Camry and cut the lock on the
gate to the warehouse. After the lock was cut, Deatherage and
I entered the warehouse parking lot on foot and located the
car containing the cocaine. Deatherage stood guard while I
searched the car for cocaine. I located six red packages that
I believed contained cocaine and I later found out that one
of the packages contained a kilogram of actual cocaine.
Foster remained in the driver's seat of the Camry. We
returned to the Camry and put the packages in a newly
purchased duffle bag. We were soon pursued by law enforcement
so we threw the duffle bag containing the cocaine out the
window and we drove to my girlfriend's house. All three
of us were armed with a pistol and a long gun while we were
in the Camry and I had a pistol when I went to remove the
cocaine out of the car in the warehouse parking lot. We
removed the firearms when we arrived at my girlfriend's
house where we were later arrested.
Additionally, on July 22, 2015, law enforcement conducted a
search warrant at my girlfriend's house in Phoenix where
they found the 31 items listed in the forfeiture section of
the plea agreement at the residence. I agree that my
co-defendants and I possessed these items in furtherance of
the conspiracy to possess with intent to distribute cocaine.
(CR Doc. 49 at 9-10.)
18, 2016, the Court sentenced Movant to an 84-month term of
imprisonment followed by five years of supervised release.
(CR Doc. 88.)
MOTION TO VACATE OR SET ASIDE SENTENCE.
25, 2017, Movant filed a Motion alleging four grounds for
relief. (Doc. 1.) On May 31, 2017, the Court dismissed
Grounds 1, 3, and 4. (Doc. 5 at 2.) “In Ground Two,
Movant contends that he received ineffective assistance of
counsel, asserting that his attorney ‘never proved no
weapon was involved, ' never communicated with Movant,
only wanted a plea agreement, and ‘misinformed
[Movant] of [his] rights to appeal.'”
(Id.) On August 11, 2017, the Court granted
Movant's request to amend his Petition. (Doc. 9.)
September 15, 2017, the government filed a Response. (Doc.
11.) On November 20, 2017, Movant filed a Reply. (Doc. 6.)
Waiver and Procedural Bar.
government argues “Defendant waived challenges to his
sentence and this Court should dismiss the § 2255
petition based on the waiver.” (Doc. 11 at 5.) The
government agrees that the “waiver shall not be
construed to bar an otherwise-preserved claim of ineffective
assistance of counsel” claim. (Id.) A
defendant may waive the statutory right to bring a §
2255 action challenging the length of his sentence through a
plea agreement. See United States v. Pruitt, 32 F.3d
431, 433 (9th Cir. 1994); United States v. Abarca,
985 F.2d 1012, 1014 (9th Cir. 1993). But a plea agreement
holds an invalid waiver if it is not entered into voluntarily
and intelligently. Hill v. Lockhart, 474 U.S. 52, 56
(1985); United States v. Nunez, 223 F.3d 956, 958
(9th Cir. 2000); Abarca, 985 F.2d at 1014 (expressly
declining to hold that a waiver forecloses a claim of
involuntariness of the waiver).
liberally construing his Petition and Amendment, Movant
argues that his plea was not voluntary because counsel did
not communicate with him, misinformed him regarding his
rights, and pressured him to take a plea. (Doc. 1 at 6; Doc.
8 at 3-4.) The Court previously dismissed three of
Movant's substantive claims. (Doc. 5 at 2-3.)
Movant's claims that attack the voluntariness of his plea
are not waived. 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).
Ground Two ...