United States District Court, D. Oregon
J. WILLIAMS United States Attorney
K. BOLSTAD Assistant United States Attorney
WILNER-NUGENT Attorney for Defendant
OPINION AND ORDER
MICHAEL W. MOSMAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Christopher Adin
Graham's Motion (#183) to Vacate, Set Aside, or Correct
the Sentence Pursuant to 28 U.S.C. § 2255.
reasons that follow, the Court DENIES
Defendant's Motions and DECLINES to
issue a certificate of appealability.
December 19, 2011, a Multnomah County Grand Jury indicted
Defendant Christopher Adin Graham with Compelling
Prostitution, Promoting Prostitution, Assault in the Second
Degree, Assault in the Fourth Degree, and Tampering with a
Witness. At some point during the course of the state case,
Deputy District Attorney (DDA) Glen Ujifusa made Defendant a
settlement offer of 120-month term of imprisonment without
any reductions. Defendant received and rejected the
April 2012 the State dismissed the charges against Defendant.
April 17, 2012, a federal grand jury indicted Defendant with
one count of Sex Trafficking by Force, Fraud, and Coercion in
violation of 18 U.S.C. §§ 1591(a)(1) and (b)(1) and
18 U.S.C. § 1594(a) and two counts of Tampering with A
Witness, Victim, or Informant in violation of 18 U.S.C.
April 19, 2012, the Court appointed Assistant Federal Public
Defender (AFPD) T.J. Hester to represent Defendant.
his appointment AFPD Hester began negotiating a federal plea
offer that would mirror the 120-month plea offer made to
Defendant in the state proceedings. On November 19, 2012,
Hester negotiated with DDA Ujifusa for a
“calibrated” plea offer of 137 months based on
differences between state and federal sentencing structures
and, in particular, federal good-time credits. Pl.'s
Resp., Ex. 1. Defendant, however, rejected the offer.
December 28, 2012, AFPD Hester filed a Motion to Withdraw as
January 15, 2013, the Court granted AFPD Hester's Motion
and appointed Krista Shipsey as Defendant's attorney.
her appointment Shipsey asked the government to keep the
offer negotiated by AFPD Hester “on the table.”
The government agreed to do so. On June 18, 2013, Assistant
United States Attorney (AUSA) Scott Kerin and DDA Ujifusa
provided Defendant with a formal plea offer for 139 months.
Shipsey states in her Declaration that she presented the
offer to Defendant and
highlight[ed] several important issues. One, he had a
significant prior conviction for the same type of behavior
where he received a ten year sentence. Second, in federal
court he was charged with a crime that carried a mandatory 15
year minimum and the government was willing to offer an
amount below the minimum. Third, based on the investigation
that had already been done, it appeared that the victim was
cooperating extensively and would be prepared to testify
against [Defendant]. . . . I explained to him very clearly,
that he was being given a 10 year offer, it was a very
reasonable settlement proposal and I felt strongly that he
should take the deal.
Decl. of Krista Shipsey at ¶ 1. Defendant, however,
“did not waiver in declining the offer.”
point after August 2013 attorney Gareld Gedrose began
assisting Shipsey with Defendant's case. Gedrose had
heart surgery in August 2013. After surgery and while Gedrose
was in a rehabilitation center, Shipsey sent him
“motions, research etc. regarding the Graham case.
[Shipsey] visited him almost daily and [they] discussed the
case. Although [Gedrose] appeared limited physically . . . it
did not appear to [Shipsey] that he had any cognitive
limitations.” Shipsey Decl. at ¶ 2.
December 10, 2013, the Court appointed Gedrose “as
second chair co-counsel” for Defendant.
six-day trial beginning March 3, 2014, the jury found
Defendant guilty on all counts of the Indictment on March 11,
March 14, 2014, Defendant filed a Notice of Appeal to the
September 25, 2014, the Court sentenced Defendant to a
concurrent term of 60 months imprisonment on Counts 2-3 and a
consecutive term of 300 months imprisonment on Count 1 for a
total of 360 months imprisonment. On September 26, 2014, the
Court entered a Judgment.
September 29, 2014, Defendant filed a second Notice of Appeal
to the Ninth Circuit.
April 12, 2016, the Ninth Circuit entered a Final Judgment
and Mandate in which it affirmed Defendant's conviction
16, 2016, Defendant filed a Petition for Writ of Certiorari
to the United States Supreme Court.
October 3, 2016, the Supreme Court denied Defendant's
Petition for Writ of Certiorari.
October 2, 2017, Defendant filed a Motion to Vacate, Set
Aside, or Correct the Sentence Pursuant to 28 U.S.C. §
2255 on the ground of ineffective assistance of counsel. The
Court took Defendant's Motion under advisement on March
U.S.C. § 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
* * *
If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may
"the remedy [under § 2255] is . . . comprehensive,
it does not encompass all claimed errors in conviction and
sentencing. . . . Unless the claim alleges a lack of
jurisdiction or constitutional error, the scope of collateral
attack [under § 2255] has remained far more
limited." United States v. Addonizio,
442 U.S. 178, 185 (1979).
moves to vacate his conviction and sentence on the ground
that he received ineffective assistance of trial counsel.
Defendant also requests an evidentiary hearing.
government asserts Defendant's Motion should be denied on
Supreme Court has established a two-part test to determine
whether a defendant has received constitutionally deficient
assistance of counsel. Premo v. Moore, 131 S.Ct.
733, 739 (2011). See also Strickland v. Washington,
466 U.S. 668, 678, 687 (1984). Under this test a defendant
must not only prove counsel's assistance was deficient,
but also that the deficient performance prejudiced the
defense. Premo, 131 S.Ct. at 739. See also
Sexton v. Cozner, 679 F.3d 1150, 1159 (9th
Cir. 2012); Ben-Sholom v. Ayers, 674 F.3d 1095, 1100
(9th Cir. 2012).
prove deficiency of performance, the defendant must show
counsel made errors so serious that performance fell below an
objective standard of reasonableness under prevailing
professional norms." Mak v. Blodgett, 970 F.2d
614, 618 (9thCir. 1992)(citing
Strickland, 466 U.S. at 687-88)). See also
Sexton, 679 F.3d at 1159 (citing Premo, 131
S.Ct. at 739). The court must inquire "whether
counsel's assistance was reasonable considering all the
circumstances" at the time of the assistance.
Strickland, 466 U.S. at 688. See also Detrich v.
Ryan, 677 F.3d 958, 973 (9th Cir. 2012).
There is a strong presumption that counsel's assistance
was adequate. Strickland, 466 U.S. at 689. See
also Sexton, 679 F.3d at 1159.
prove prejudice "[t]he defendant must show that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. See also Sexton, 679 F.3d at 1159-60. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 695. See also
Sexton, 679 F.3d at 1160.
court "need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the defendant." Strickland, 466
U.S. at 697. See also Heishman v. Ayers, 621 F.3d
1030, 1036 (9th Cir. 2010). "If it is easier
to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, . . . that course should be
followed." Strickland, 466 U.S. at 697. See
also Heishman, 621 F.3d at 1036.
noted, Defendant moves to correct his sentence on the ground
of ineffective assistance of counsel. Specifically, Defendant
alleges the following:
1. Trial counsel rendered ineffective assistance when they
provided Defendant with “poorly considered advice,
” which caused Defendant to reject the government's
June 18, 2013, plea offer;
2. Trial counsel rendered ineffective assistance when Gedrose
failed to move to withdraw from representing Defendant and
Shipsey failed to ask Gedrose to withdraw and/or failed to
move to have Gedrose relieved after Gedrose suffered
“increasingly severe health
3. Trial counsel rendered ineffective assistance when they
failed “to alert the Court to the government's
consistently late and slow production of discovery early
enough that the Court could impose a remedy without unduly
4. Trial counsel rendered ineffective assistance when they
failed to object to or to rebut the trial testimony of Misty
Losinger, the victim, who testified “Defendant had
previously profited from her prostitution as a minor”;
5. Shipsey rendered ineffective assistance when she called
Brandon Cartwright-Erricho as a witness for the defense;
6. Trial counsel rendered ineffective assistance when they
failed “to reapproach the prosecution to resume
settlement discussions once they saw that trial was ...