United States District Court, D. Oregon, Medford Division
OPINION & ORDER
MICHAEL McSHANE United States District Judge
matter comes before the Court on Defendant Mary Jeanette
Hayes's Motion to Vacate or Correct Sentence pursuant to
28 U.S.C. § 2255. ECF No. 184. Defendant also moves for
appointment of counsel. ECF No. 185. For the reasons set
forth below, Defendant's Motion under § 2255 is
DENIED. Because the motion and record conclusively show that
Defendant is entitled to no relief, no evidentiary hearing is
required. Defendant's motion for appointment of counsel
is also DENIED.
2013, Defendant Mary Jeanette Hayes was indicted for a single
count of Unlawful Possession of a Firearm (Count 1) and a
single count of Unlawful Possession of a Machine Gun (Count
2). ECF No. 1. On February 19, 2014, Hayes entered into plea
agreement by which she agreed to plead guilty to Count 1, in
exchange for which the Government agreed to drop Count 2 of
the indictment and further agreed not to pursue an enhanced
sentence under the Armed Career Criminal Act
(“ACCA”) based on Haye's prior felony drug
offense convictions. ECF No. 68. The parties agreed to
stipulate to a sentence of 100 months. ECF No. 84. At the
time of sentencing, however, the Court declined to accept the
stipulated sentence and sentencing was set over for a year
while Hayes continued on pretrial release. ECF Nos. 85, 88.
November 20, 2015, Hayes was permitted to withdraw her guilty
plea and enter a new plea, pursuant to a new plea agreement.
ECF Nos. 97, 98. Under the new agreement, Hayes again agreed
to plead guilty to Count 1 in exchange for dismissal of Count
2 and the Government's agreement not to pursue an
enhanced sentence under the ACCA. ECF No. 98. The parties
agreed that Hayes's base offense level was 26, with a
two-level enhancement for a stolen gun and a three-level
reduction for acceptance of responsibility for a total
offense level of 25. ECF No. 98. Hayes's Criminal History
Category was VI, resulting in an advisory guidelines range of
110-120 months. ECF No. 101 (“PSR”). In its
sentencing memorandum, the Government noted that Hayes had
made considerable positive progress while on pretrial release
and noted that, if Hayes were granted a four-level reduction
for post-offense rehabilitation, her guidelines range would
be 77-96 months and observed that a defendant with no
criminal history would have a guidelines range of 30-37
months. ECF No. 102.
January 27, 2016, Hayes was sentenced to five years of
probation, with 250 hours of community service work to be
performed at the direction of her probation officer. ECF No.
104. As additional special conditions of probation, Hayes was
ordered to continue full time school and/or employment and to
have no contact with her co-defendant, Erlindo Manuel Nunez.
ECF No. 104. This sentence represented a substantial variance
below the guideline range based on consideration of the 18
U.S.C. § 3553(a) factors. ECF No. 105.
2017, Haye's probation officers filed a petition alleging
that Hayes had violated the terms of her probation by having
contact with her co-defendant, by failing to maintain school
and employment and lying about it, and by possessing
methamphetamine. A second petition further alleged possession
of methamphetamine and possession of a switchblade knife. ECF
No. 166. Hayes was lodged in state custody and eventually
convicted of state charges of Possession of Methamphetamine.
ECF No. 166. Hayes was sentenced to 18 months of probation on
the state charges and transferred into federal custody to
address her federal probation violation. ECF No. 166. The
Government sought revocation of Hayes's probation and a
sentence of 110 months. ECF No. 166.
time of her probation violation hearing, Hayes was
represented by attorney Donald Scales. ECF No. 162. Hayes
admitted to violating the terms of her probation by
possessing a controlled substance, by failing to maintain
full time school and/or employment, and by having contact
with her co-defendant. ECF No. 172. The Court accepted
Hayes's admissions and, on July 27, 2017, the Court
sentenced her to 75 months, followed by a three year term of
supervised release. ECF No. 172. At the time of sentencing,
the Court advised Hayes of her right to appeal. ECF No. 171.
Hayes did not file a direct appeal of her sentence.
28 U.S.C. § 2255, a federal prisoner in custody under
sentence may move the court that imposed the sentence to
vacate, set aside, or correct the sentence on the ground
[T]he 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. . . .
28 U.S.C. § 2255(a).
warrant relief, a petitioner must demonstrate that the 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.”).
§ 2255, “a district court must grant a hearing to
determine the validity of a petition brought under that
section, ‘[u]nless the motions and the files and
records of the case conclusively show that the
prisoner is entitled to no relief.'” United
States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994)
(alteration and emphasis in original) (quoting 28 U.S.C.
§ 2255). In determining whether a § 2255 motion
requires a hearing, “[t]he 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. Withers, 638 F.3d
1055, 1062 (9th Cir. 2011) (alteration in original, internal
quotation marks and citation 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