The 28 U.S.C. § 2254 Blog

Archive for the ‘2255 motion’ Category

CA7 remands for hearing on federal prisoner’s claim regarding failure to file appeal.

Dowell v. United States, No. 10-2912 (7th Cir. Sept. 17, 2012) (Williams, J.) — The Seventh Circuit held that a collateral-attack waiver in a federal prisoner’s plea agreement could not be enforced where (1) the defendant had reserved the right to appeal a certain issue and (2) the defendant sought to litigate, in § 2255 proceedings, whether his lawyer was ineffective for failing to file a notice of appeal. The court then remanded the case for an evidentiary hearing under Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The petitioner had been charged with possessing 50 grams or more of crack cocaine with intent to distribute. In a plea agreement, the petitioner specifically reserved the right to challenge his designation as a career offender under U.S.S.G. § 4B1.1, but otherwise agreed to waive his right to file a § 2255 motion to challenge his conviction or sentence (including the manner in which the sentence was determined). The district court computed his Guidelines range at 262-327 months but ultimately imposed a sentence of 180 months’ imprisonment.

Counsel failed to file a notice of appeal within the 10-day period (the sentence was imposed in 2008). The petitioner submitted a letter to the district court some five months after sentencing, asking it to treat the letter as a notice of appeal because his lawyer did not follow his instructions to file a notice of appeal. The district court ultimately determined that the letter was untimely if construed as a notice of appeal, and so the Seventh Circuit dismissed the attempted direct appeal for lack of jurisdiction. The petitioner then sought postconviction relief on the ground that his lawyer was ineffective for failing to timely file a notice of appeal, but district court later dismissed the petitioner’s § 2255 motion as barred by the waiver provision in the plea agreement.

The Seventh Circuit vacated and remanded for further proceedings. The court concluded that the petitioner had voluntarily entered into the plea agreement, including the waiver provision, but noted that the waiver was enforceable only to the extent that the petitioner’s claims fell within its scope. Here, because the petitioner had expressly reserved the right to appeal the career-offender designation, the parties necessarily expected that the petitioner would have a meaningful opportunity to raise that claim. “A meaningful opportunity to appeal includes the effective assistance of counsel in filing the appeal.” Because the petitioner contended that he did not receive effective assistance in filing the appeal, the court held that his claim was not barred by the waiver provision in his plea agreement. On the merits, the court noted that the record was inadequately developed with regard to the petitioner’s instructions to his trial lawyer, the court remanded for a hearing.

Written by Keith Hilzendeger

October 24, 2012 at 12:27 pm

CA8 enforces plea agreement through a technical parsing of the terms of a 2255 waiver.

Ackerland v. United States, No. 10-1864 (8th Cir. Feb. 16, 2011) (Colloton, J.) — The Eighth Circuit reversed a district court’s grant of a federal prisoner’s § 2255 motion in which the district court had ordered resentencing for the purpose of correcting an error in the petitioner’s criminal history calculation. That error stemmed from the inclusion of an uncounseled misdemeanor conviction in his criminal history score, in violation of Alabama v. Shelton, 535 U.S. 654 (2002). After concluding that the government had filed a timely notice of appeal, the court reversed the district court’s resentencing order because a provision in the petitioner’s plea agreement waived the right to raise this kind of challenge in § 2255 proceedings. The agreement “reserv[ed] only the right to appeal from an upward departure from the applicable Guideline range.” This challenge wasn’t included for two reasons — first, the petitioner wasn’t appealing his sentence, he was seeking relief in § 2255 proceedings; and second, an error in computing the criminal history score is not a “departure” as that term is understood in the Guidelines.

Written by Keith Hilzendeger

February 17, 2011 at 9:35 am

CA6 holds that resentencing is not available for federal postconviction petitioners unless the court finds a constitutional violation.

United States v. Doyle, Nos. 09-3003, 09-3102 (6th Cir. Feb. 9, 2011) (Cook, J.) — The Sixth Circuit held that a district court has no authority to resentence a federal prisoner if the court, in considering the prisoner’s § 2255 motion, finds no constitutional violation relating to the original sentence. Here the petitioner filed a § 2255 motion claiming ineffective assistance of counsel because the petitioner’s trial attorney didn’t file a notice of appeal from his sentence. At an evidentiary hearing on the motion, however, the petitioner testified that he and his lawyer came to the strategic decision not to file a notice of appeal. The district court therefore denied the petitioner’s IAC claim, yet it resentenced the petitioner anyway, believing that the petitioner deserved an opportunity to appeal his sentence. The Sixth Circuit vacated the resentencing order because the district court correctly found no constitutional violation stemming from the original sentence.

Written by Keith Hilzendeger

February 9, 2011 at 2:42 pm

CA8 finds no IAC in failure to apprise defendant of safety valve.

Deltoro-Aguilera v. United States, No. 08-3783 (8th Cir. Nov. 2, 2010) (Gibson, J.) — The Eighth Circuit affirmed the denial of a § 2255 motion raising a claim of ineffective assistance for failing to advise the petitioner about his eligibility for the “safety valve,” a provision intended to relieve the harshness of mandatory minimum federal drug sentences. Eligibility for the safety valve is limited to those defendants who truthfully disclose the extent of their involvement in a drug conspiracy. In this case, the petitioner simply alleged in his § 2255 motion that he would have testified truthfully if given the opportunity to do so, but he never explained what his true role in the drug conspiracy was. Thus the court concluded that he would not have been eligible for the safety valve, and the district court did not err in denying his § 2255 motion without an evidentiary hearing.

Written by Keith Hilzendeger

November 9, 2010 at 11:47 am

CA9 — Government expert’s subsequent perjury doesn’t merit new trial.

United States v. Berry, No. 08-35002 (9th Cir. Oct. 22, 2010) (Tashima, J.) — The Ninth Circuit held that a § 2255 motion that doesn’t raise any constitutional claims can be recharacterized as a motion for a new trial under Fed. R. Crim. P. 33 and then dismissed if not brought within Rule 33′s three-year limitation period. But that limitation period can be waived by the government if it doesn’t object.

The petitioner here, along with two others, detonated some pipe bombs at a bank, a newspaper, and a Planned Parenthood clinic in Spokane, Washington. They also robbed banks in Spokane and Portland, Oregon. At his trial, the government introduced the results of composite analysis of bullet lead (CABL), a forensic method that purports to be able to match bullets together. (It can’t, at least not reliably.) Five years after the petitioner’s trial, the government’s CABL expert pleaded guilty to lying during a Daubert hearing in Kentucky about the reliability of CABL. See Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006). The petitioner also new that the FBI had stopped using CABL. He then filed a § 2255 motion arguing that the evidence introduced at his trial was unreliable, which both violated his due process rights and entitled him to a new trial apart from any due process violation.

The court ruled that the district court could and should have recharacterized the petitioner’s motion as coming under Rule 33. But there was ultimately no harm from failing to do so, because the government didn’t object to the timeliness of the motion, and so the district court properly reached the merits of the petitioner’s claims.

The district court also correctly denied the claims on the merits. The CABL expert’s subsequent perjury didn’t violate the petitioner’s due process rights because, although admitting it may have been flawed, it didn’t render the trial fundamentally unfair. Any defects in the expert’s testimony could have been exposed through cross-examination. Furthermore, this evidence served only to impeach the CABL expert’s testimony, and thus didn’t entitle the petitioner to a new trial under Rule 33.

Written by Keith Hilzendeger

October 22, 2010 at 2:10 pm

CA10 finds counsel ineffective for failing to understand the Federal Sentencing Guidelines.

United States v. Washington, No. 08-3313 (10th Cir. Sept. 30, 2010) (Seymour, J.) — The Tenth Circuit held that trial counsel failed to advise the petitioner regarding the impact of relevant conduct (a term of art under the Guidelines) on his potential sentence, and that failure prejudiced the petitioner because it rendered him ineligible for relief under the retroactively applicable crack cocaine Guidelines. (The court did not mention any other possible prejudice stemming from the probation officer’s relevant conduct findings, which increased the amount of crack cocaine on which his sentence was based over a thousandfold, from 61.98 grams to 6.5 kilograms.)

The petitioner was indicted and ultimately convicted in 1991 after a jury trial on three counts of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). He retained counsel for the trial who had never handled a federal criminal case before; the trial lawyer was disbarred from practice in the Tenth Circuit because of mishandling of the petitioner’s direct appeal and later lost his license to practice law in Kansas. The petitioner’s offense level after two upward adjustments was 44; in light of his criminal history (category II), he received three consecutive statutory maximum sentences of 40 years each, for a total of 120 years in prison. After a tortuous history of litigating postconviciton motions, in 2006 the Tenth Circuit ultimately permitted the petitioner, in accordance with Castro v. United States, 540 U.S. 375 (2003), to file an initial § 2255 motion.

The petitioner contended that his trial counsel was ineffective for failing to accompany him to the presentence interview “or to at least advise him of the nature and possible consequences of the meeting, which result in Mr. Washington revealing to the probation officer other incriminating information that increased his drug quantity by 2.5 kilograms.” The district court rejected this claim as foreclosed by United States v. Gordon, 4 F.3d 1567, 1571-72 (10th Cir. 1993) (“Defendant had no Sixth Amendment right to the presence or advice of counsel during the presentence interview.”); accord United States v. Benlian, 63 F.3d 824, 828 (9th Cir. 1995) (finding no deficient performance from failure to schedule a presentence interview because such an interview is not a “critical stage” at which the defendant is entitled to counsel). The court of appeals certified this question for appeal after oral argument, relying on Glover v. United States, 531 U.S. 198, 200 (2001), and Application Note 10
(D)(ii)(I) to U.S.S.G. § 2D1.1.

In order to grant relief to the petiitoner here, the court had to distinguish Gordon. It did so by reasoning that Gordon was a case in which counsel incorrectly calculated the effect of the relevant conduct admissions, while this is a case in which counsel utterly failed to understand how relevant conduct impacts a sentence based on the federal sentencing guidelines. Thus, “complete unfamiliarity” with the “basic structure and mechanics” of the Guidelines “may amount to ineffective assistance of counsel.” If that lack of familiarity rendered counsel “incapable of helping the defendant to make reasonably informed decisions” about “how to conduct himself through the sentencing process,” then the petitioner can make out a valid claim of deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). In this case, the petitioner’s counsel demonstrated that level of complete unfamiliarity, and was therefore constitutionally deficient.

Furthermore, that deficient performance prejudiced the petitioner here. Although the new crack cocaine guidelines generally do apply retroactively, they do not if “the offense involved 4.5 kg or more” of crack cocaine. U.S.S.G. § 2D1.1 app. note 10(D)(ii)(I). At least 2.5 kilograms of crack cocaine were directly traceable to the petitioner’s admissions during the presentence interview; the court therefore discounted them when it crafted the relief in this case. There is therefore a reasonable probability that the petitioner would have received a sentence of 28 years on each count (instead of 40), and thus the court remanded for further proceedings.

Written by Keith Hilzendeger

September 30, 2010 at 1:03 pm

CA6 rejects IAC claim brought by federal prisoner.

Adams v. United States, No. 09-1176 (6th Cir. Sept. 30, 2010) (Norris, J.) — The petitioner pleaded guilty to federal drug charges and received a mandatory minimum sentence of 10 years instead of 5 years because he had been adjudged a “youthful trainee” under the Michigan Holmes Youthful Trainee Act. The court held that placement on “youthful trainee” status meant that the conviction was “final” so as to trigger the 10-year mandatory minimum, and so counsel wasn’t ineffective for failing to argue for the 5-year minimum instead. The court also praised trial counsel for negotiating a favorable plea deal.

Written by Keith Hilzendeger

September 30, 2010 at 11:09 am

CA9: Allegations in a 2255 motion were not patently frivolous, so the district court should have made specific findings on the petitioner’s claims.

United States v. Withers, Nos. 05-56795, 08-55096 (9th Cir. Aug. 19, 2010) (Pregerson, J.) — The Ninth Circuit ordered a district court to make findings of fact and conclusions of law, after an evidentiary hearing if warranted, pursuant to 28 U.S.C. § 2255(b), because the petitioner here did not make such patently frivolous allegations as to warrant summary dismissal. The district judge’s persistent failure to apply § 2255(b)’s low standard (he had failed to do so after the Ninth Circuit had remanded the case on three previous occasions) also led the court to order the case reassigned to a different district judge. The obstinate judge was Manuel Real of the Central District of California.

This issue involves one major claim for relief — that the trial judge (presumably Judge Real) improperly closed the courtroom during voir dire in the petitioner’s trial on federal drug trafficking charges without making the findings of fact required by Waller v. Georgia, 467 U.S. 39 (1984), or Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). See also Presley v. Georgia, 130 S. Ct. 721 (2010). As the trial judge brought the jurors in for voir dire, he said, “All you people out there are going to have to be out of the courtroom. We have to bring in a very big panel of prospective jurors and we need the entire courtroom, so all of you out.” Trial counsel did not object to the expulsion of the public from the voir dire proceedings, and appellate counsel did not raise the issue on appeal. The petitioner did raise the public-trial claim and the related trial and appellate IAC claims in his 2255 motion.

The petitioner initially filed a § 2241 habeas petition, but the district court denied it and the court of appeals denied a COA. Then he filed a § 2255 motion, which (as the government conceded on appeal) the district court erroneously treated as a second or successive habeas petition. See Castro v. United States, 540 U.S. 375 (2003). The court of appeals remanded for consideration of the § 2255 motion on the merits, but the district court instead erroneously reconsidered the petitioner’s sentence. (It was reduced from life plus 360 months to two concurrent terms of 365 and 360 months.) The court of appeals again instructed the district court to consider the merits of the § 2255 motion, but the district court failed to indicate that it had done so. Instead, it simply denied the motion without comment. After a limited remand, the court of appeals concluded that the petitioner’s notice of appeal was timely filed because (1) he was a pro se petitioner who (2) alleged that he did not receive notice of the denial of his motion and (3) filed his notice of appeal within 14 days of the date on which he alleged that he did receive notice of the denial of the motion. See Fed. R. App. P. 4(a)(6).

With respect to the merits of the petitioner’s claims, the court first noted that the district court was required by 28 U.S.C. § 2255(b) to determine whether “the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief.” See United States v. Schaflander, 743 F.2d 714 (9th Cir. 1984). If they do not, then the district court was required to order a response from the government, hold a hearing if necessary, and make findings of fact and conclusions of law with respect to the petitioner’s claims. In this case, three of the petitioner’s claims survived this threshold review — the claims relating to the violation of the petitioner’s right to public voir dire. Such violations constitute structural error if they are proven; however, the record was not sufficiently well developed to indicate the nature and duration of the courtroom closure. Thus the district court was required to make factual findings with respect to those issues. Furthermore, because appellate IAC could overcome any procedural default of the claim, or trial IAC could provide an independent basis for relief, the district court was also required to make findings of fact and conclusions of law with respect to those issues as well.

Judge Noonan believed that this case had gone on long enough already and would have (1) found the petitioner’s notice of appeal to be untimely filed and (2) affirmed the district court’s summary dismisal of the § 2255 motion.

The decision is here.

Written by Keith Hilzendeger

August 19, 2010 at 11:25 am

CA10 — memorandum dispositions

United States v. Fridliefson, No. 08-4131 — The court denied a COA in a § 2255 appeal.  In pleading guilty to a drug charge with a stipulated sentence under Fed. R. Crim. P. 11(c)(1)(C), the petitioner agreed not to seek collateral review of his sentence except to the extent necessary to argue that it exceeded the statutory maximum penalty.  He filed a § 2255 motion, claiming ineffective assistance of counsel.  The district court found the motion to be barred by the waiver provision in the plea agreement.  He argued that trial counsel was ineffective for incorrectly computing the applicable guildelines range, but the court concluded that error in computing the guidelines range did not affect the validity of the guilty plea or his decision to enter into a plea agreement.

Martin v. Ray, No. 08-5083 — The court denied a COA in a § 2254 appeal.  The petitioner had been charged with two counts of child abuse, but he was acquitted of one at trial.  He was sentenced to 20 years in prison.  He filed for federal habeas relief, raising three claims.  First, he argued that the statute of limitations had expired with respect to his charges.  Second, he argued that the trial court’s excluding a videotaped interview with a police detective violated his right to present a defense.  Third, the prosecutor improperly elicited an opinion from a witness regarding the petitioner’s truthfulness.  The district court rejected all these claims.  The court rejected these claims as unexhausted, procedurally defaulted, and meritless.

Written by Keith Hilzendeger

October 7, 2008 at 11:47 am

CA10 — memorandum disposition

United States v. Ocampo, No. 07-6221 — The court denied a COA to appeal in a 2255 case.  The court rejected the petitioner’s claim of ineffective assistance of counsel because counsel appointed to represent him on appeal did not furnish the court with a complete transcript of the trial.  (Lame!)  The court also considered and rejected a claim under Brady v. Maryland, 373 U.S. 83 (1963), that the petitioner had not raised in the district court.  The court rejected the Brady claim on the merits because the petitioner did not offer any evidence that the prosecution withheld any evidence.

Written by Keith Hilzendeger

October 7, 2008 at 10:47 am

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