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United States v. Carter

United States District Court, D. Oregon, Portland Division

March 9, 2018


          Billy Williams United States Attorney Jane H. Shoemaker Assistant United States Attorney Attorneys for Plaintiff .

          Per C. Olson Hoevet Olson Howes, Attorneys for Defendant.

          OPINION & ORDER

          MARCO A. HERNANDEZ United States District Judge.

         Defendant moves to vacate or to correct his sentence pursuant to 28 U.S.C. § 2255. ECF 56. Because Defendant's claims have no merit or have been waived, the Court denies Defendant's Motion. Because the Motion and record conclusively show Defendant is not entitled to relief, no evidentiary hearing is required.


         On July 16, 2013, a grand jury charged Defendant with two counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (Counts One and Three) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Counts Two and Four). ECF 26 (Indictment). The Indictment stemmed from two separate armed bank robberies on October 22, 2012, and November 21, 2012, in the Portland metropolitan area.

         On September 30, 2013, Defendant pleaded guilty to the two armed bank robbery counts (Counts One and Three) and one count of using a firearm during a crime of violence (Count Two). ECF 26 (Indictment), ECF 38 (Plea Agreement), ECF 39 (Plea Petition). On January 13, 2014, pursuant to a Plea Agreement that the parties entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), this Court sentenced Defendant to 186 months imprisonment on Count One, a mandatory minimum sentence of 84 months imprisonment on Count Two to be served consecutively to the sentence on Count One, and 186 months imprisonment on Count Three to be served concurrently with the sentence imposed on Count One. ECF 44 (Judgment and Commitment). Pursuant to the Plea Agreement, the Court dismissed Count Four. As part of his Plea Agreement, Defendant waived his right to appeal or to collaterally attack his conviction or sentence. Accordingly, Plaintiff did not appeal his conviction or his sentence.


         Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)).

         The petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”).

         A district court must grant a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). In determining whether a § 2255 motion requires a hearing, “the standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” Withers, 638 F.3d at 1062 (brackets and internal quotation marks omitted). A district court may dismiss a § 2255 motion based on a facial review of the record “only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980) (conclusory statements in a § 2255 motion are insufficient to require a hearing).

         Habeas review is not an alternative to direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998) (“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”) (internal quotation marks omitted). Absent a showing of cause and prejudice, a habeas petitioner procedurally defaults all claims that were not raised in his direct appeal, other than claims asserting ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504 (2003). “[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his double procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167-68 (1982). To demonstrate “cause, ” the defendant must establish that “‘some objective factor external to the defense impeded his adherence to the procedural rule.” United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). For “prejudice, ” the defendant must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170. The district court does not need to address both prongs if the defendant fails to satisfy one. Id. at 168.

         A defendant who fails to show cause and prejudice to excuse a procedural default, may still obtain review on a § 2255 collateral attack by demonstrating the likelihood of his actual innocence. United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). To establish actual innocence, the defendant must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011); ...

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