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United States v. Jonas

United States District Court, D. Oregon

July 12, 2019

CODY JOE JONAS, Defendant.

          OPINION & ORDER


         Billy J. Williams United States Attorney District of Oregon Paul Maloney Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Attorneys for Plaintiff Cody Joe Jonas FCI Sheridan PO Box 5000 Sheridan, OR 97378 Pro Se Defendant HERNÁNDEZ, District Judge:

         Defendant Cody Joe Jonas moves to vacate or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that trial counsel was deficient in advising Defendant about his potential appeal. For the reasons that follow, the Court denies the motion.


         On April 25, 2017, Defendant entered a guilty plea to an Indictment charging him with a single count of Bank Robbery under 18 U.S.C. § 2113(a). Indictment, ECF 6; Plea Hr'g Mins., ECF 19. The Indictment alleges Defendant took by force $4, 455 from a U.S. Bank in Portland, Oregon. Indictment. Defendant entered his guilty plea without a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). Plea Pet. & Order Ent. Plea, ECF 20.

         At sentencing, the parties disputed whether Defendant's prior Washington conviction for first-degree robbery under RCW 9A.56.200 qualified as a crime of violence for purposes of § 4B1.2 of the Sentencing Guidelines. Mins. Proceedings, ECF 38. The Court concluded that it did not and therefore did not apply the career offender guideline sentencing enhancement to Defendant's sentence. Id.; Op. & Order, ECF 42. With the career offender enhancement, Defendant faced a sentencing guidelines range of 151 to 188 months. Present. Invest. Rep't 1, ECF 26.

         On March 28, 2018, this Court imposed a 96-month prison term for the single count of bank robbery to be served consecutively with a 14-month sentence for violating the terms of his supervised release in a related case. Judgment, ECF 44; Sentencing Hr'g Tr. 51:3-15, ECF 46. The 96-month sentence was an upward variance from the guidelines range based on the factors outlined in 18 U.S.C. § 3553(a). Sentencing Hr'g Tr. 45:2-7. At the sentencing hearing, the Court twice informed Defendant that he had a right to appeal his sentence under certain circumstances and that any appeal must be filed within fourteen days of the entry of judgment. Sentencing Hr'g Tr. 49:18-24, 51:16-23.

         There is no dispute that Defendant and defense counsel, Mr. Samuel Kauffman, discussed a possible appeal twice in the week that followed Defendant's sentencing and that Mr. Kauffman advised Defendant not to appeal his case. See Def. Mot. 6, ECF 47; Gov't Ex. 1 (“Kauffman Decl.”) ¶¶ 4-7, ECF 50-1. Defendant contends that Mr. Kauffman discouraged him from filing an appeal because “the government might be successful in convincing the Ninth Circuit Court of Appeals that [he] should have been classified as a Career Offender” and the Government “could get a higher sentence at any re-sentencing [he] may prevail on.” Def. Mot. 6. Mr. Kauffman similarly recalls advising Defendant that, “though there were issues he could raise on appeal, . . . he would not likely prevail.” Kauffman Decl. ¶ 5. He said that the Government was more likely to appeal the Court's ruling on the career offender enhancement if Defendant appealed, and- though unlikely-Defendant could face a more severe sentence on remand given the application of the enhancement. Id. at ¶ 6. Accordingly, he advised Defendant that it might be best to wait and see if the Government appealed to decide whether to file his own appeal. Id. at ¶ 5. Mr. Kauffman also recalls informing Defendant that it was Defendant's decision whether to appeal and that he would file a notice of appeal on his behalf if Defendant wanted him to do so. Id. at ¶ 7. Both parties agree that after these conversations Defendant opted to think about it further. Id.; Def. Mot. 6. The parties disagree, however, as to whether Mr. Kauffman told Defendant he had fourteen or thirty days to appeal his sentence. Compare Kauffman Decl. ¶¶ 4, 7 with Def. Mot. 6. In addition, Mr. Kauffman declares that Defendant told him within the fourteen-day period that “he had decided not to file a notice of appeal unless the government did so first.” Kauffman Decl. ¶ 8.

         Defendant alleges that he “eventually” asked Mr. Kauffman to file a notice of appeal on his behalf after “further discussions with [his] attorney.” Def. Mot. 6. According to Mr. Kauffman, on July 9, 2018, Defendant sent him a letter in which he inquired both about filing a “2255 appeal” and about forms for filing an appeal. Kauffman Decl. ¶ 10. Mr. Kauffman responded in a July 18, 2018 letter and informed Defendant that the appeal period had lapsed: “As we discussed, a notice of appeal had to have been filed within 30-days [sic] of entry of the judgment.” Id. Mr. Kauffman also asserts that both he and his staff spoke to Defendant and his family multiple times about the release of an impounded car, and Defendant never asked about an appeal. Id. at ¶ 9.

         Defendant did not appeal his sentence. See Def. Mot. 3. On January 8, 2019, Defendant filed the present motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. Def. Mot. at 5.


         Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)). The petitioner must demonstrate that an 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, the defendant is entitled to a hearing in which the court determines the issues and makes findings of fact and conclusions of law “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “The standard for granting an evidentiary hearing [under § 2255] entails assuming the truth of [the defendant's] factual allegations[.]” United States v. Leonti,326 F.3d 1111, 1121 (9th Cir. 2003). When faced with conflicting sworn accounts from a defendant and his trial attorney, a district court is required to hold an evidentiary hearing if the defendant's version of the facts would entitle him to relief. United States v. Reyes-Bosque, 624 Fed.Appx. 529, 530 (9th Cir. 2015) (finding that district court erred in holding that the defendant's claim was self-serving because “Section 2255(b) imposes no requirement of independent corroboration, and a declaration is not inherently unbelievable merely because it is self-serving”). “Therefore, ‘a hearing is ...

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