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United States v. Lee

United States District Court, D. Oregon, Portland Division

January 7, 2019

DAVID PAUL LEE, Defendant/Petitioner

          Billy J. Williams United States Attorney District of Oregon Gregory R. Nyhus Assistant United States Attorney Attorneys for United States of America.

          David Paul Lee FCI Sheridan Pro se Petitioner.

          Todd E. Bofferding Standby Attorney for Petitioner.

          OPINION & ORDER


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


         On December 2, 2015, Petitioner was pulled over in Washington County for weaving in his lane. Plea Hr'g at 24-25, ECF 62. Petitioner stopped his vehicle in a private driveway and eventually provided Washington County deputies with his name and identification. Id. at 25, Def. Mot. to Suppress at 2, ECF 27. He also told deputies he had a gun in his possession. Plea Hr'g at 25. After learning that he had an active warrant for his arrest, deputies took Petitioner into custody, searched his vehicle, and found the shotgun. Id. The government later determined that Petitioner had two warrants for his arrest, one from Clatsop County, Oregon and one from Mason County, Washington. Id.

         On January 26, 2016, a grand jury charged Petitioner with one count of unlawful possession of a firearm under 18 U.S.C. § 922(g)(2), and one count of possession of a firearm made in violation of the National Firearms Act under 26 U.S.C. § 5861(6). On August 23, 2016, Petitioner pled guilty to violating § 922(g)(2), which prohibits any person who is a “fugitive from justice” from “ship[ing] or transport[ing] in interstate or foreign commerce, or possess[ing] in or affecting commerce, any firearm or ammunition; or receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

         In the plea agreement, Petitioner waived his right to appeal or to collaterally attack his conviction or sentence on any ground other than ineffective assistance of counsel. Plea Agreement at 3, ECF 54. Specifically, the written agreement states:

12. Waiver of Appeal/Post-Conviction Relief: Defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds, except for a claim that: (1) the sentence imposed exceeds the statutory maximum, or (2) the Court arrives at an advisory sentencing guideline range by applying an upward departure under the provisions of Guidelines Chapters 4 or 5K, or (3) the Court exercises its discretion under 18 U.S.C. § 3553(a) to impose a sentence which exceeds the advisory guideline sentencing range. Should defendant seek an appeal, despite this waiver, the USAO may take any position on any issue on appeal. Defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds of ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 33 and 18 U.S.C. § 3582(c)(2).

         On March 9, 2017, this Court sentenced Petitioner to twenty-seven months imprisonment and three years' supervised release.

         On January 10, 2018, while represented by counsel, Petitioner personally filed three motions with the Court. See ECF 72, 73, 74. Petitioner was advised by the Court that motions filed by a defendant with appointed counsel would not be entertained. ECF 69. On February 23, 2018, Petitioner's counsel filed a motion to reduce defendant's sentence. ECF 76. That motion was granted on June 7, 2018, and Petitioner's sentence was reduced by 282 days for time served. ECF 79. Petitioner's counsel withdrew from the case on June 20, 2018. ECF 83. On September 7, 2018, Petitioner was arrested on a supervised release violation, and appointed new counsel. ECF 87. On September 21, 2018, the Court granted Petitioner's request to represent himself, with his attorney to remain on the case as standby counsel. ECF 96. At that time, the Court also received three new pro se motions that Petitioner had filed over the last two days. ECF 92-96.

         These pro se motions included arguments to dismiss the underlying case for lack of subject matter jurisdiction, lack of personal jurisdiction, and insufficient pleadings. The government argued that the Court did not have jurisdiction to hear the motions, as Petitioner's time to file a direct appeal had expired. Gov't Resp to Mots. at 2-3, ECF 98. At the government's suggestion, and with the Petitioner's consent, the Court construed Petitioner's filings as petitions for relief cognizable under 28 U.S.C. § 2255. On September 27, 2018 the court also docketed Petitioner's Motion to Vacate or Correct Sentence under § 2255. See ECF 102-104. Thus, the Court now reviews five motions-ECF 92, 93, 94, 95, 102-taken collectively as a motion for relief under § 2255.


         I. 28 U.S.C § 2255

         A prisoner serving a federal sentence “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. When there has been 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.” Id.

         As a general rule, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). Claims of ineffective assistance of counsel provide an exception to this “procedural default” rule. Id. Courts use a two-part test to determine whether a defendant has received constitutionally deficient assistance of counsel. Premo v. Moore, 562 U.S. 115, 121 (2011). Under this test, a defendant must prove that counsel's assistance was deficient and that the deficient performance prejudiced the defense. Id; see also Schurz v. Ryan, 730 F.3d 812, 815 (9th Cir. 2013) (Defendant must show not only that counsel's performance was deficient but that the deficient performance prejudiced the defendant).

         To prove the deficiency of counsel's performance, the defendant must show counsel made errors so serious that his “representation fell below an objective standard of reasonableness” under prevailing professional norms. Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). 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.

         In assessing whether counsel's performance was deficient, courts must “‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and make every effort ‘to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 689). Ultimately, the defendant's “burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

         “To satisfy the prejudice prong under Strickland, a defendant must show ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013) (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” Id. (quoting Strickland, 466 U.S. at 695).

         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. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id.

         Under § 2255, a district court must grant a hearing “unless the motion and the files and the record of the case conclusively show that the prisoner is entitled to no relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting 28 U.S.C. § 2255). “The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citation omitted). The court may decline to hold an evidentiary hearing if the claim is “so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004) (citations and quotation marks omitted). Conclusory statements in a § 2255 motion are insufficient to require a hearing. Id. at 879 (addressing allegations that a defendant was incompetent because of drug use when he pleaded guilty).

         II. Waiver

         Statutory rights, such as the right to direct appeal or a collateral attack under a § 2255 motion, are waivable in a plea agreement. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Courts will generally enforce a § 2255 waiver if (1) the language of the waiver encompasses the Petitioner's right to file a § 2255 motion on the grounds claimed in the motion, and (2) the waiver was knowingly and voluntarily made. United States v. Martinez, 143 F.3d 1266 (9th Cir. 1998); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000). However, individuals cannot waive the right to challenge the voluntariness of the plea agreement in a collateral attack. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005); see also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (“We doubt ...

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