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Frazier v. USA

United States District Court, D. Arizona

June 1, 2018

Parris Frazier, Petitioner,
USA, Respondent.


          Honorable John Z. Boyle United States Magistrate Judge.

         TO THE 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. 1.)[1]


         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]


         On 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.)

         On July 18, 2016, the Court sentenced Movant to an 84-month term of imprisonment followed by five years of supervised release. (CR Doc. 88.)


         A. Movant's Claims.

         On May 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 ‘mis[]informed [Movant] of [his] rights to appeal.'” (Id.) On August 11, 2017, the Court granted Movant's request to amend his Petition. (Doc. 9.)

         On September 15, 2017, the government filed a Response. (Doc. 11.) On November 20, 2017, Movant filed a Reply. (Doc. 6.)

         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. 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).

         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 3-4.) 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).

         C. Ground Two ...

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