United States District Court, D. Oregon, Portland Division
J. Williams United States Attorney District of Oregon Gregory
R. Nyhus Assistant United States Attorney Attorneys for
United States of America.
Paul Lee FCI Sheridan Pro se Petitioner.
E. Bofferding Standby Attorney for Petitioner.
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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.
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.
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.”
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).
March 9, 2017, this Court sentenced Petitioner to
twenty-seven months imprisonment and three years'
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.
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 §
28 U.S.C § 2255
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.
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).
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.
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).
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).
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.”
§ 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).
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 ...