United States District Court, D. Arizona
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Olin Lee Bryant's Motion
to Vacate, Set Aside, or Correct Sentence. (Doc. 1).
Magistrate Judge Eileen S. Willett issued a Report and
Recommendation (R&R) in which she recommends that the
Court deny the motion. (Doc. 20). Petitioner filed objections
to the R&R. (Doc. 24). The Court will thus review the
record de novo on all objections raised by the
Petitioner. For the following reasons, the Court adopts the
R&R and denies the motion.
August 12, 2015, Petitioner signed a plea agreement, agreeing
to plead guilty to the crime of Abusive Sexual Contact with a
Minor in violation of 18 U.S.C. §§ 1153,
2244(a)(5), and 2246(3). The plea agreement waives most of
Petitioner's defenses, appellate rights, and rights to
collaterally attack his conviction. Petitioner retained his
right to an appeal based on claims of ineffective assistance
of counsel or prosecutorial misconduct. The Magistrate Judge
found that Petitioner had knowingly, intelligently, and
voluntarily entered the guilty plea. The Court accepted the
Petitioner's guilty plea. On December 14, 2015, the Court
sentenced Petitioner to 144 months in prison and a lifetime
term of supervised release.
timely filed the present § 2255 motion on June 29, 2016,
raising four grounds for relief: (1) Petitioner was
unlawfully given an enhanced sentence; (2) Petitioner was
denied his right to extradition procedures from tribal
jurisdiction; (3) ineffective assistance of counsel for
failing to raise the issues in Ground One and Ground Three;
and (4) ineffective assistance of counsel for failing to
challenge evidence unlawfully obtained through
Petitioner's arrest without extradition. The Court
dismissed Ground One. (Doc. 4). Petitioner's sentence was
federal prisoner may seek relief under 28 U.S.C. §
2255(a) if his sentence was imposed in violation of the
United States Constitution or the laws of the United States,
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack. When a prisoner
petitions for post-conviction relief, this Court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate [judge].”
Id. at § 636(b)(1). If a petitioner files
timely objections to the magistrate judge's R&R, the
district judge must make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which the objection is made. United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc).
filed eight objections to the R&R. In Objection 2,
Petitioner objects to the dismissal of Ground One. But the
Court dismissed Ground One on September 6, 2016. (Doc. 4).
Petitioner did not appeal that ruling. Petitioner cannot
challenge that dismissal at this stage.
1, 3, 4, 5, 6, and 8 all deal with Petitioner's argument
that Petitioner was entitled to an extradition hearing in
order to be removed from tribal lands. Petitioner also
asserts that the Court lacked jurisdiction over him.
Petitioner waived the right to raise this objection when he
signed his plea agreement. See United States v.
Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005) (“A
defendant's waiver of his appellate rights is enforceable
if (1) the language of the waiver encompasses his right to
appeal on the grounds raised, and (2) the waiver is knowingly
and voluntarily made.”). To the extent Petitioner
argues that it was ineffective assistance of counsel for his
attorney to not raise this defense prior to his signing of
the plea agreement (as is implied in Objections 1, 5, 6, and
8) that claim is without merit. See Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984) (holding that
a claim for ineffective assistance of counsel must show that
“counsel's representation fell below an objective
standard of reasonableness” and “there is a
reasonable probably that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different”); Hill v. Lockhart, 474
U.S. 52, 57 (1985) (holding that “the same two-part
Strickland standard seems to us applicable to
ineffective-assistance claims arising out of the plea
process”). The federal government has jurisdiction to
prosecute certain crimes that occur on Indian reservations.
18 U.S.C. § 1153(a) (“Any Indian who commits
against the person or property of another Indian or other
person any of the following offenses . . . shall be subject
to the same law and penalties as all other persons committing
any of the above offenses, within the exclusive jurisdiction
of the United States.”). There is no requirement that
Petitioner have an extradition hearing prior to the federal
government's prosecution. Because these claims are
without merit, Petitioner's counsel was not ineffective
in not raising the claims. See Baumann v. United
States, 692 F.2d 565, 572 (9th Cir. 1982) (“The
failure to raise a meritless legal argument does not
constitute ineffective assistance of counsel.”).
Objection 1, Petitioner states that “counsel misquoted
the law and fact to induce that plea.” (Doc. 24, p. 2).
Petitioner does not explain what laws (other than the issue
of extradition, which is meritless) and facts his attorney
allegedly misstated. In Objection 6, Petitioner appears to
argue that he was just “horseplaying” with the
victim and that the federal prosecutors changed the crimes
charged from “touching the crotch through cloth,
accidentally” to “skin to skin contact” in
order to obtain federal jurisdiction over the case. But
Petitioner has not provided any support for the claim that
facts were changed to obtain federal jurisdiction.
Petitioner's Motion to Vacate notes that he was convicted
of Abusive Sexual Conduct with A Minor, in violation of 18
U.S.C. §§ 2244(A)(5) and 2246(3). Section 2246(3)
defines “sexual contact” as “the
intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person” (emphasis added).
Therefore, Petitioner has not established that touching
through clothing would have prevented federal jurisdiction.
Petitioner raises the issue of ineffective assistance of
counsel as well, stating that “had counsel been
competent in Indian law, Mr. Bryant would not have pleaded
guilty.” (Doc. 24, p. 4). But, again, Petitioner's
arguments are without either specificity or merit and
Petitioner has not established that counsel's performance
argues that his plea was not voluntary, knowing, and
intelligent due to counsel's ineffective assistance in
Objection 7. Petitioner affirmed throughout his change of
plea hearing and sentencing that he understood the effect of
his plea agreement, nor was counsel's assistance
ineffective as reviewed above. Petitioner's claims of
ineffective assistance of counsel are without merit and do
not act to invalidate his voluntary plea agreement.
IS THEREFORE ORDERED that the Magistrate Judge's
Report and Recommendation (Doc. 20) is
ADOPTED and the Motion to Vacate of
Petitioner Olin ...