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Deatherage v. United States

United States District Court, D. Arizona

June 1, 2018

Robert Kenneth Deatherage, Petitioner,
v.
United States of America, Respondent.

          HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE

         Movant 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.)[1]

         I. SUMMARY OF CONCLUSION.

         Movant 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 dismissed.[2]

         II. PROCEDURAL HISTORY.

         On 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. 113.)

         On December 12, 2016, the Court sentenced Movant to a 60-month term of imprisonment followed by three years of supervised release. (CR Doc. 114.)

         III. MOTION TO VACATE OR SET ASIDE SENTENCE.

         A. Movant's Claims.

         On May 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 mis[]informed [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.)

         On February 28, 2018, the government filed a Response. (Doc. 14.) Movant did not file a Reply.

         B. Waiver and Procedural Bar

         The 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).

         Here, 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).

         C. Ground Two of the Petition.

         In 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 3-5.)

         Generally, 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 proceeding:

THE COURT: All right. Were you able to communicate well with your lawyer?
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 you?
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, knowingly ...

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