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United States v. Lawrence

United States District Court, D. Oregon

August 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TANA CHRIS LAWRENCE, Defendant.

          BILLY J. WILLIAMS United States Attorney

          CRAIG J. GABRIEL Assistant United States Attorney, Attorneys for Plaintiff

          PER C. OLSON Hoevet Olson Howes, PC Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Defendant Tana Chris Lawrence's Second Amended Motion (#281) 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 Tana Chris Lawrence and Angeledith Saramaylene Smith and were charged in an Indictment with Murder in the First Degree. Specifically, the Indictment alleged on September 29, 2012, Lawrence and Smith “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), 224l(a), 2242 and Oregon Revised Statutes § 164.225.

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

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

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, Lawrence and Smith

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. § 120l(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 14, 2013, Lawrence and Smith were charged in a Third Superseding Indictment with three counts of Murder in the First Degree. Count One alleges on September 29, 2012, Lawrence and Smith

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, ” Lawrence and Smith

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, Lawrence and Smith

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. § 120l(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 November 21, 2013, before the deadline for any motions against the Third Superseding Indictment had passed, Lawrence 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 Lawrence, and sentenced Lawrence to a term of life imprisonment.

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

         On April 30, 2014, Lawrence filed a Notice of Appeal to the Ninth Circuit.

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

         On March 25, 2016, Lawrence filed a Petition for Writ of Certiorari to the United States Supreme Court.

         On May 2, 2016, the Supreme Court denied Lawrence's Petition for Writ of Certiorari.

         On December 5, 2016, Lawrence filed a pro se Motion (#235) Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.

         On December 12, 2016, the Court appointed counsel for Lawrence for purposes of her Motion to Vacate.

         On May 1, 2017, Lawrence filed an Amended Motion (#247)

         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, Lawrence filed a Second Amended Motion (#281) 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

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

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 “Lawrence 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. advised Lawrence “to plead guilty, without advising her that, if she were to go to trial, evidence of intoxication, mental illness, and intellectual disability would be admissible as to defendant's intent to commit the crimes alleged”;
4. “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”;
5. advised Lawrence “to plead guilty pursuant to a plea agreement in which the government could ask for no more than 35 years of imprisonment without adequately advising [Lawrence] of the risk that the court would impose a sentence of life imprisonment”;
6. failed to negotiate a plea agreement in which Lawrence would not have to waive her right to an appeal in the event the Court imposed a sentence of life imprisonment;
7. “failed to negotiate a plea agreement under Federal Rules of Criminal Procedure, Rule 11(c)(1)(C), that would have bound the court to impose a sentence within a term of years and less than life imprisonment”;
8. “failed to object to the government's breach of the plea agreement at sentencing when it compared . . . Lawrence's case unfavorably with other cases in the District of Oregon, described . . . Lawrence'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”;
9. failed to consider the possibility that the Court would impose a sentence above the maximum term recommended by the government;
10. “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”;
11. “failed to object to the Court's separate request for sentencing materials from other cases in the District of Oregon”;
12. “failed to object to the Court's reliance on its own memory and recollection of other Murder in the First Degree cases and sentences imposed in the district in support of the court's assertion that [Lawence's] case was not sufficiently similar to those other cases to justify a sentence of less than life imprisonment”;
13. “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”;
14. “[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”;
15. “failed to assert on appeal that the sentence of life imprisonment was substantively unreasonable”;
16. conceded “on appeal that the failure to object to the prosecution's breach of the plea agreement at the sentencing hearing resulted in the application of the ‘plain error' standard of review on appeal of whether the government breached the plea agreement”;
17. failed to argue on appeal that “the government's breach of a plea agreement warranted remand for re-sentencing before a different judge”;
18. failed to argue on appeal that “the ‘harmless error' rule did not apply to the law of contractual plea agreements”; and
19. “[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 Lawrence'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, Lawrence alleges 19 bases for her claim of ineffective assistance of counsel.

         I. Ineffective Assistance Claims Based on the Indictments

         As noted, Lawrence alleges trial counsel[1] provided ineffective assistance when he failed to file a motion to dismiss the Third Superseding Indictment on the ground that none of the counts alleged an offense. Specifically, Lawrence asserts:

The Third Superseding Indictment failed to state an offense because it relied on improper predicates in each of the three counts of Felony Murder under 18 U.S.C. § 1111(a). Counts One and Two alleged that the death of Ms. Kalama occurred in the perpetration or attempted perpetration of Burglary in the First Degree, as defined by the Oregon statute, ORS 164.225. Count Three alleged that the death occurred in the perpetration or attempted perpetration of kidnapping, as defined by 18 U.S.C. § 1201(a)(2). But by including “burglary” and “kidnapping” in the list of predicate crimes in the Felony Murder statute, Congress did not intend to incorporate varied and inconsistent statutory definitions of these crimes, and instead intended uniform generic definitions.

Def.'s Mem. in Support of Second Am. Mot. to Vacate at 30-31.

         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 Lawrence and Smith “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.” Lawrence 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 as a predicate to federal felony murder. See United States v. Reza-Ramos, 816 F.3d 1110 (9th Cir. 2016).

         The Ninth Circuit has made clear that counsel are not ineffective for failing to anticipate a decision in a later case. See, e.g., Styers v. Schriro, 547 F.3d 1026, 1032 (9th Cir. 2008) (“Styers relies almost exclusively on our decision in Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005). . . . However, Daniels was issued almost fifteen years after Styers' voir dire proceedings. . . . As such, Styers cannot rest his ineffective assistance of counsel claim on Daniels.”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)(holding an attorney is not ineffective for failing to anticipate a decision in a later case).

         Because the Ninth Circuit did not hold until three years after the government filed the Third Superseding Indictment that state burglary statutes could be too broad to support burglary as a predicate to federal felony murder, the Court concludes defense counsel's performance did not fall below an objective standard of reasonableness under the then-existing prevailing professional norms when they failed to challenge the Third Superseding Indictment on the ground that Oregon's burglary statute is too broad to be a predicate felony that can support a conviction for felony murder under § 1111(a). Accordingly, the Court concludes defense counsel was not ineffective when he failed to challenge the Third Superseding Indictment on that ground.

         B. Kidnapping under 18 U.S.C. § 1201 as a Predicate to Felony Murder

         Lawrence also asserts her counsel was ineffective when he failed to file a motion to dismiss Count Three of the Third Superseding Indictment on the ground that the federal kidnapping statute, 18 U.S.C. § 1201(a)(2), is not a predicate felony that can support a conviction for Felony Murder under 18 U.S.C. § 1111(a). Specifically, Lawrence contends although Congress added kidnapping to the list of predicate crimes in the Felony Murder statute, 18 U.S.C. § 1111(a), that list does not reference 18 U.S.C. § 1201. According to Lawrence, therefore, Congress intended only generic kidnapping to qualify as a predicate felony to support a charge of felony murder. Lawrence notes the Ninth Circuit has concluded “the generic definition of kidnapping encompasses, at a minimum, the concept of a ‘nefarious purpose[]' motivating restriction of the victim's liberty.” United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007). Federal kidnapping under § 1201, however, only requires the kidnapping to be “for a benefit.” Lawrence asserts because the Third Superseding Indictment alleged only § 1201 as the predicate offense for the charge of felony murder and, therefore, it alleged only that Lawrence and Smith kidnapped Kalama “for a benefit, ” the Third Superseding Indictment failed to allege an offense. According to Lawrence, therefore, defense counsel was ineffective when they failed to move to dismiss the Third Count on this basis.

         The government, however, asserts there was not any authority that indicated kidnapping under § 1201 could not serve as a predicate offense to felony murder at the time of the Third Superseding Indictment. Moreover, the government asserts Lawrence could not have established prejudice in any event because if defense counsel had moved to dismiss the Third Count on that basis, the government would ...


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