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United States v. Hayes

United States District Court, D. Oregon, Medford Division

January 31, 2019


          OPINION & ORDER

          MICHAEL McSHANE United States District Judge

         The 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.


         In May 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.

         On 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.

         On 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.

         In May 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.

         At the 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.


         Under 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 that:

[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).

         To 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.”).

         Under § 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 ...

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