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United States v. Smith

United States District Court, D. Oregon

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGELEDITH SARAMAYLENE SMITH, Defendant.

          BILLY J. WILLIAMS United States Attorney CRAIG J. GABRIEL Assistant United States Attorney Attorneys for Plaintiff.

          KENDRA M. MATTHEWS Boise Matthews LLP Attorneys for Defendant.

          OPINION AND ORDER

          Anna J. Brown, United States Senior District Judge.

         This matter comes before the Court on Defendant Angeledith Saramaylene Smith's First Amended Motion (#283) Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by A Person in Federal Custody. For the reasons that follow, the Court DENIES Defendant's Motion and DECLINES to issue a Certificate of Appealability.

         BACKGROUND

         On October 11, 2012, Defendant Angeledith Saramaylene Smith and Tana Chris Lawrence were charged in an Indictment with Murder in the First Degree. Specifically, the Indictment alleged on September 29, 2012, Smith and Lawrence “with malice aforethought, did unlawfully kill Faron Lynn Kalama . . . in the perpetration of, or in the attempt to perpetrate, kidnapping, aggravated sexual abuse, sexual abuse, and burglary” in violation of 18 U.S.C. §§ 1111, 1201 (a) (2), 2241 (a), 2242 and Oregon Revised Statutes § 164.225.

         On November 6, 2012, Smith and Lawrence were charged in a Superseding Indictment with Murder in the First Degree on the same grounds as those stated in the initial Indictment.

         On September 16, 2013, Smith filed a Motion to Dismiss the Superseding Indictment on various grounds including that the Oregon burglary statute is not a permissible predicate for felony murder charged under 18 U.S.C. §§ 1111 and 1153.

         On October 17, 2013, Smith and Lawrence were charged in a Second Superseding Indictment with two counts of Murder in the First Degree. Count One alleged on September 29, 2012, Smith and Lawrence

with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, Burglary in the First Degree, in violation of Oregon Revised Statute 164.225, that is:
(a) In the District of Oregon . . . defendants LAWRENCE and SMITH . . . did unlawfully and knowingly enter and remain in a dwelling located at 2237 Elliot Heights, Warm Springs, Oregon, with intent to commit a crime therein, that is, Assault With A Dangerous Weapon With Intent To Do Bodily Harm, in violation of 18 U.S.C. § 113 (a) (3);

         All in violation of 18 U.S.C. §§ 1111, 1153, 2. Count Two alleged on September 29, 2012, Smith and Lawrence

with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, kidnapping, in violation of 18 U.S.C. § 1201 (a) (2), that is:
(a) In the District of Oregon . . . defendants LAWRENCE and SMITH . . . did unlawfully seize, confine, kidnap, abduct, and carry away Faron Lynn Kalama and held her for a benefit;

         All in violation of 18 U.S.C. §§ 1111, 1153, 2.

         On November 1, 2013, the government filed its Response to Smith's Motion to Dismiss and advised the Court that Smith's objections to the Superseding Indictment had been resolved by the Second Superseding Indictment except for Smith's assertion that the Oregon burglary statute is not a permissible predicate for felony murder charged under 18 U.S.C. §§ 1111 and 1153.

         On November 14, 2013, the Court entered an Order in which it noted the parties had advised the Court that Smith's Motion to Dismiss the Superseding Indictment was moot. The Court, therefore, set a briefing schedule for any motions against the Second Superseding Indictment.

         Also on November 14, 2013, Smith and Lawrence were charged in a Third Superseding Indictment with three counts of Murder in the First Degree. Count One alleges on September 29, 2012, Smith and Lawrence

with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, Burglary in the First Degree, in violation of Oregon Revised Statute 164.225, that is:
(a) In the District of Oregon . . . defendants LAWRENCE and SMITH . . . did unlawfully and knowingly enter and remain in a dwelling located at 2237 Elliot Heights, Warm Springs, Oregon, with intent to commit a crime therein, that is, Assault With A Dangerous Weapon With Intent To Do Bodily Harm, in violation of 18 U.S.C. § 113 (a) (3);

         All in violation of 18 U.S.C. §§ 1111, 1153, 2. Count Two alleges on September 29, 2012, “at a time separate and subsequent to the offense described in Count 1, ” Smith and Lawrence

with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, Burglary in the First Degree, in violation of Oregon Revised Statute 164.225, that is:
(a) In the District of Oregon . . . defendants LAWRENCE and SMITH . . . did unlawfully and knowingly enter and remain in a dwelling located at 2237 Elliot Heights, Warm Springs, Oregon, with intent to commit a crime therein, that is, Assault With A Dangerous Weapon With Intent To Do Bodily Harm, in violation of 18 U.S.C. § 113 (a) (3);

         All in violation of 18 U.S.C. §§ 1111, 1153, 2. Count Three alleges on September 29, 2012, Smith and Lawrence

with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, kidnapping, in violation of 18 U.S.C. § 1201 (a) (2), that is:
(a) In the District of Oregon . . . defendants LAWRENCE and SMITH . . . did unlawfully seize, confine, kidnap, abduct, and carry away Faron Lynn Kalama and held her for a benefit;

         All in violation of 18 U.S.C. §§ 1111, 1153, 2.

         On November 18, 2013, the Court held an arraignment hearing on the Third Superseding Indictment and set a briefing schedule for any motions against the Third Superseding Indictment.

         On December 5, 2013, before the deadline for any motions against the Third Superseding Indictment had passed, Smith pled guilty to the third count of Murder in the First Degree.

         On April 16, 2014, the Court held a sentencing hearing, granted the government's Motion to Dismiss Counts One and Two of the Third Superseding Indictment as to Smith, and sentenced Smith to a term of life imprisonment.

         On April 17, 2014, the Court entered a Judgment.

         On May 1, 2014, Smith filed a Notice of Appeal to the Ninth Circuit.

         On January 14, 2016, the Ninth Circuit issued a Mandate affirming Smith's sentence and conviction.

         On April 7, 2016, Smith filed a Petition for Writ of Certiorari to the United States Supreme Court.

         On May 23, 2016, the Supreme Court denied Smith's Petition for Writ of Certiorari.

         On May 1, 2017, Smith filed a Motion (#248) Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence on the ground of ineffective assistance of counsel.

         On January 11, 2018, Smith filed a First Amended Motion (#248) Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence on the ground of ineffective assistance of counsel. The Court took this matter under advisement on June 24, 2019.

         STANDARDS

         28 U.S.C. § 2255 provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such 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.

         Although "the remedy [under § 2255] is . . . comprehensive, it does not encompass all claimed errors in conviction and sentencing. . . . Unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack [under § 2255] has remained far more limited." United States v. Addonizio, 442 U.S. 178, 185 (1979).

         DISCUSSION

         Smith moves to vacate her conviction and sentence on the ground that she received ineffective assistance of counsel and asserts eighteen bases for her claim. Specifically, Smith alleges counsel provided ineffective assistance when they

1. failed to file a motion to dismiss the Third Superseding Indictment in order to assert that all counts of the Third Superseding Indictment failed to allege an offense;
2. recommended “Smith plead guilty to Count Three under the terms outlined in her plea agreement . . . because Count Three, as alleged in the Third Superseding Indictment, failed to allege an offense”;
3. “failed to move for an arrest of judgment under Federal Rules of Criminal Procedure . . . 34, after the change of plea, asserting that the case should be dismissed because Count Three failed to state an offense”;
4. advised Smith “to plead guilty pursuant to a plea agreement in which the government could ask for no more than 35 years of imprisonment without adequately understanding or advising defendant Smith of the risk that the court would impose a sentence of life imprisonment”;
5. failed to negotiate a plea agreement in which Smith would not have to waive her right to an appeal in the event the Court imposed a sentence of life imprisonment;
6. “failed to negotiate a plea agreement under Federal Rules of Criminal Procedure, Rule 11 (c) (1) (C), that would have bound . . . Smith's guilty plea to an agreement by the Court to impose a sentence within a term of years, as opposed to life imprisonment”;
7. “failed to object to the government's breach of the plea agreement at sentencing when it compared . . . Smith's case unfavorably with other cases in the District of Oregon, described . . . Smith's conduct as worse than that of other defendants in the district, and made other statements that contradicted its promise and obligation to sincerely argue for imposition of no more than 35 years' imprisonment”;
8. failed to consider the possibility that the Court would impose a sentence above the maximum term recommended by the government;
9. “failed to object to the government presenting partial sentencing information about other cases in the District of Oregon, failed to request more information about those cases, failed to request more time to address those cases, and failed to adequately address those cases at sentencing”;
10. “failed to object to the Court's separate request for sentencing materials from other cases in the District of Oregon”;
11. “failed to object to the Court's reliance on its own memory and recollection of the details from other murder cases in the District of Oregon as a basis for its conclusion that [Smith's] case was not sufficiently similar to those other cases to justify a sentence of less than life imprisonment”;
12. “failed to obtain and present to the Court . . . sentencing data that would have provided the Court with a meaningful basis of comparison when the Court was determining what sentence to impose”;
13. “[w]hen, at sentencing, the Court's statements made it plain that the Court considered defendants' conduct worse than that of others convicted of First Degree Murder in the District of Oregon, defense counsel failed to move for a continuance on the basis that the defense had not had a fair or meaningful opportunity to understand, evaluate, and present information about those cases”; 14. “failed to advise the Court that because attorney Winemiller had represented one of the defendants the Court was comparing to . . . Smith, ethical restrictions precluded the defense from engaging in a full and fair comparison of the two defendants, putting defendant Smith in a constitutionally untenable disadvantage”;
15. “invited a comparison to Oregon law in defendant Smith's sentencing submission and then pursued that comparison at sentencing”;
16. failed to argue on appeal that “the government's breach of a plea agreement warranted remand for re-sentencing before a different judge”;
17. failed to argue on appeal that “the ‘harmless error' rule did not apply to the law of contractual plea agreements and by failing to petition the appellate court for reconsideration or en banc review after it affirmed the sentence”; and
18. “[t]o the extent that this Court were to conclude that the constitutional deprivations viewed individually were harmless, not prejudicial, or otherwise not warranting relief, it must conclude that the cumulative effect of the multiplicity of errors (in any combination) does.” The government asserts the Court should deny Smith's Motion in its entirety.

         I. Standards

         The Supreme Court has established a two-part test to determine whether a defendant has received constitutionally deficient assistance of counsel. Premo v. Moore, 131 S.Ct. 733, 739 (2011). See also Strickland v. Washington, 466 U.S. 668, 678, 687 (1984). Under this test a defendant must not only prove counsel's assistance was deficient, but also that the deficient performance prejudiced the defense. Premo, 131 S.Ct. at 739. See also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012); Ben-Sholom v. Ayers, 674 F.3d 1095, 1100 (9th Cir. 2012).

         “To prove deficiency of performance, the defendant must show counsel made errors so serious that performance fell below an objective standard of reasonableness under prevailing professional norms.” Mak v. Blodgett, 970 F.2d 614, 618 (9thCir. 1992)(citing Strickland, 466 U.S. at 687-88)). See also Sexton, 679 F.3d at 1159 (citing Premo, 131 S.Ct. at 739). 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. See also Detrich v. Ryan, 677 F.3d 958, 973 (9th Cir. 2012). There is a strong presumption that counsel's assistance was adequate. Strickland, 466 U.S. at 689. See also Sexton, 679 F.3d at 1159.

         To prove prejudice “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also Sexton, 679 F.3d at 1159-60. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 695. See also Sexton, 679 F.3d at 1160.

         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. See also Heishman v. Ayers, 621 F.3d 1030, 1036 (9th Cir. 2010). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697. See also Heishman, 621 F.3d at 1036.

         DISCUSSION

         As noted, Smith alleges 18 bases for her claim of ineffective assistance of counsel.

         I. Ineffective Assistance Claims Based on the Indictments

         As noted, Smith alleges trial counsel[1] provided ineffective assistance when they failed to file a motion to dismiss the Third Superseding Indictment on the ground that none of the counts alleged an offense. Specifically, Smith asserts defense counsel “should have argued that neither Oregon's burglary statute, ORS 164.225, nor the federal kidnapping statute at 18 U.S.C. § 1201 (a) (2), may be a predicate felony to support a conviction for Felony Murder under 18 U.S.C. § 1111 (a).”

         A. Oregon Revised Statutes § 164.225 as a Predicate to Felony Murder

         In Counts One and Two of the Third Superseding Indictment the government alleged Smith and Lawrence “with malice aforethought, did unlawfully kill Faron Lynn Kalama, in the perpetration of, or in the attempt to perpetrate, Burglary in the First Degree, in violation of Oregon Revised Statute 164.225.” Smith asserts counsel provided ineffective assistance when they failed to assert Oregon's burglary statute is not a predicate felony that can support a conviction for felony murder under § 1111 (a).

         The government asserts defense counsel was not ineffective for failing to assert Oregon's burglary statute was not a predicate felony that could support a conviction for felony murder because it was not until nearly three years after the government filed the Third Superseding Indictment that the Ninth Circuit held state burglary statutes could be too broad to support burglary ...


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