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United States v. Graham

United States District Court, D. Oregon

May 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER ADIN GRAHAM, Defendant.

          BILLY J. WILLIAMS United States Attorney

          LEAH K. BOLSTAD Assistant United States Attorney

          BEAR WILNER-NUGENT Attorney for Defendant

          OPINION AND ORDER

          MICHAEL W. MOSMAN UNITED STATES DISTRICT JUDGE

         This 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.

         For the reasons that follow, the Court DENIES Defendant's Motions and DECLINES to issue a certificate of appealability.

         BACKGROUND

         On 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 settlement offer.

         In April 2012 the State dismissed the charges against Defendant.

         On 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. § 1512(b)(3).

         On April 19, 2012, the Court appointed Assistant Federal Public Defender (AFPD) T.J. Hester to represent Defendant.

         After 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.

         On December 28, 2012, AFPD Hester filed a Motion to Withdraw as Attorney.

         On January 15, 2013, the Court granted AFPD Hester's Motion and appointed Krista Shipsey as Defendant's attorney.

         After 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.” Id.

         At some 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.

         On December 10, 2013, the Court appointed Gedrose “as second chair co-counsel” for Defendant.

         After a six-day trial beginning March 3, 2014, the jury found Defendant guilty on all counts of the Indictment on March 11, 2014.

         On March 14, 2014, Defendant filed a Notice of Appeal to the Ninth Circuit.

         On 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.

         On September 29, 2014, Defendant filed a second Notice of Appeal to the Ninth Circuit.

         On April 12, 2016, the Ninth Circuit entered a Final Judgment and Mandate in which it affirmed Defendant's conviction and sentence.

         On June 16, 2016, Defendant filed a Petition for Writ of Certiorari to the United States Supreme Court.

         On October 3, 2016, the Supreme Court denied Defendant's Petition for Writ of Certiorari.

         On 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 16, 2018.

         STANDARDS

         28 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 the sentence.
* * *
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 appear appropriate.

         Although "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).

         DISCUSSION

         Defendant moves to vacate his conviction and sentence on the ground that he received ineffective assistance of trial counsel. Defendant also requests an evidentiary hearing.

         The government asserts Defendant's Motion should be denied on the merits.

         I. Standards

         The 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).

         "To 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.

         To 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.

         The 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.

         II. Analysis

         As 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 problems”;[1]
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 delaying trial”;
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 ...

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