United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Robert Deatherage 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. 1.)
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
September 20, 2016, pursuant to a plea agreement, Movant
pleaded guilty to an Information charging a single count of
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 of five years. (CR Doc.
December 12, 2016, the Court sentenced Movant to a 60-month
term of imprisonment followed by three years of supervised
release. (CR Doc. 114.)
MOTION TO VACATE OR SET ASIDE SENTENCE.
22, 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 2-3.) “In Ground Two,
Movant contends that he received ineffective assistance of
counsel, asserting that his attorney ‘never proved any
weapon was ever involved,' ‘never gave discovery
evidence as requested,' never communicated with Movant,
only wanted a plea agreement, and ‘contrived and
misinformed [Movant[ of [his] rights to appeal.'”
(Id. at 2) On July 19, 2017, the Court granted
Movant's request to amend his Petition. (Doc. 9.) On
August 8, 2017, Movant filed an Amended Motion adding a claim
of actual innocence and “clarified” his original
ineffective assistance of counsel claim. (Doc. 8 at 1.)
February 28, 2018, the government filed a Response. (Doc.
14.) Movant did not file a Reply.
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. 14 at 4-5.) The
government agrees that the “waiver shall not be
construed to bar an otherwise-preserved claim of ineffective
assistance of counsel” claim. (Id. at 5.) 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
contains 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 3-5.) 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 of the Petition.
Ground Two, Movant alleges his counsel was ineffective by (1)
failing to disprove a weapon was involved in the crime, (2)
not communicating with Movant and (3) misinforming Movant of
his right to appeal. (Doc. 1 at 6.) In the Amended Motion,
Movant adds “clarifications and additions” to his
“ineffective assistance of counsel claim.” (Doc.
8 at 1.) He adds that counsel (4) “did not even attempt
to put together a theory to defend me, ” (5) failed to
provide requested discovery “which will prove that no
firearm was used in furtherance of a drug trafficking
crime” (6) did not purse his “actual innocence
claim” in the Amended Petition, (7) never interviewed
the co-defendants or confidential informant. (Id. at
claims of ineffective assistance of counsel are analyzed
pursuant to Strickland v. Washington, 466 U.S. 668
(1984). In order to prevail on such a claim, Movant must
show: (1) deficient performance-counsel's representation
fell below the objective standard for reasonableness; and (2)
prejudice-there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 687-88.
A pleading defendant must prove he was prejudiced from
counsel's ineffectiveness by demonstrating a reasonable
probability that but for his attorney's errors, he would
not have pleaded guilty and would have insisted on going to
trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985);
Strickland, 466 U.S. at 694. “To determine the
voluntariness of the plea, we look to the totality of the
circumstances, examining both the defendant's
‘subjective state of mind' and the
‘constitutional acceptability of the external forces
inducing the guilty plea.'” Doe v.
Woodford, 508 F.3d 563, 570-72 (9th Cir. 2007) (citation
omitted). Because “it is difficult to probe the highly
subjective state of mind of a criminal defendant, the best
evidence of his understanding when pleading guilty is found
in the record of the Rule 11 colloquy.” United
States v. Jimenez-Dominguez, 296 F.3d 863, 869 (9th Cir.
2002). Movant stated the following during the plea
THE COURT: All right. Were you able to communicate well with
THE DEFENDANT: Yes. Absolutely.
THE COURT: Have you been satisfied with the representation
he's provided to you so far?
THE DEFENDANT: With Mr. Tim Rogers, yes, I am.
. . .
THE COURT: First, that on or about July 22, 2015, in the
District of Arizona, you knowingly possessed a firearm and,
second, at the time you possessed the firearm, you knowingly
carried it in relation to, or possessed it is furtherance of,
a drug-trafficking offense, a felony prosecutable by a court
of the United States.
Did you understand these elements that I just shared with
THE DEFENDANT: Yes, I do.
THE COURT: So those are the things the Government would have
to prove at a trial in order to obtain a conviction against
you. So those elements actually tell you what the crime is.
They would have to prove, the Government would have to prove
these two things beyond a reasonable doubt, that you
possessed a firearm, you did, and that you possessed it,