Azure v. United States
| Decision Date | 07 December 2022 |
| Docket Number | 3:22-cv-98,3:19-cr-172 |
| Parties | Myron Jay Azure, Petitioner, v. United States of America, Respondent. United States of America, Plaintiff, v. Myron Jay Azure, Defendant. |
| Court | U.S. District Court — District of North Dakota |
ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Before the Court are Petitioner Myron Jay Azure's 28 U.S.C § 2255 motion to vacate, set aside, or correct sentence (Doc. No. 52) and motion for hearing (Doc. No. 53). The United States opposes the motion. Doc. No. 55. Azure filed his reply on November 28, 2022. Doc. No. 60. After careful review of the entire record, the motions are denied.
In 2019, Azure was indicted with five counts of aggravated sexual abuse of his daughter and niece in violation of 18 U.S.C. §§ 2241(c) and 1153. The United States offered a plea agreement to resolve the charges against Azure, which he accepted. Under the plea agreement, Azure pleaded guilty to counts two and three of the indictment. Doc. No. 27.
The plea agreement was signed by Azure and his counsel on April 27, 2020. Id. The plea agreement advised him of the minimum sentence of 30 years and maximum sentence of life in prison on both counts to which he pleaded guilty. Id. at 3. The plea agreement also indicated that the anticipated base offense level under the United States Sentence Guidelines (“USSG”) was 38. Id. at 6. It further contemplated the potential for upward departures under USSG § 2A3.1(b)(3) () and § 4B1.5 (repeat and dangerous sex offender against minors). Id.
At the change of plea hearing, Azure was advised by the Court as follows:
Now even though Ms. Conroy and Mr. Pennington and you have agreed that the base offense level is a 38 and that there might be upward adjustments and downward adjustments, when it really comes down to brass tacks it's Ms. Jorgenson's presentence investigation and the calculation that she does there that is important with regards to sentencing. What's in the Plea Agreement is the best estimate of counsel, but what the department of probation comes up with is what matters.
Doc. No. 45 at 14-15. Azure indicated that he fully understood this (id. at 15) and that he was aware he was facing the possibility of a life sentence. Id. at 10. The Court also advised Azure that this was a non-binding plea agreement and that if the Court accepted his plea, he would not be allowed to withdraw it. Id. at 7-8, 17. Azure then went on to plead guilty to counts two and three. Id. at 20.
At the sentencing hearing, the Court heard arguments regarding USSG §§ 2A3.1(b)(3), 3D1.4, and 4B1.5(b)(1) and found each was applicable to Azure-making the guideline range life in prison. The Court then reviewed the guideline calculation noted above, heard further arguments from counsel, considered the factors under 18 U.S.C. § 3553(a), and imposed concurrent life sentences.
Azure appealed, alleging the Court erred in applying USSG §§ 2A3.1 and 3D1.4, and imposed a substantively unreasonable sentence. The Eighth Circuit Court of Appeals dismissed the appeal based on the valid waiver of appeal in the plea agreement. United States v. Azure, 852 Fed.Appx. 232, 233 (8th Cir. 2021). On June 13, 2022, Azure brought this § 2255 motion alleging his guilty pleas were not knowing and voluntary, his attorney should have filed a motion to withdraw his guilty pleas, his attorney should have informed the Court of that he wished to withdraw his guilty pleas, and that his sentence guideline range was incorrectly calculated.
A motion under 28 U.S.C. § 2255 provides avenues for relief “in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.” Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). More specifically, section 2255 is “reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). As such, § 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Fletcher v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012)).
Relatedly, the court may dismiss a § 2255 motion without a hearing if “(1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 (8th Cir. 2011). “The movant bears the burden to prove each ground entitling relief.” Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019) (citation omitted). Whether to grant or deny an evidentiary hearing is committed to the discretion of the district court. See id.
Azure argues his pleas were not knowing and voluntary. More specifically, he alleges his pleas were not voluntary because his attorney told him he would receive a sentence of no more than 30 years. Doc. No. 52. It is well-established that “a guilty plea must be both knowing and voluntary” to be constitutionally valid. Parke v. Raley, 506 U.S. 20, 28 (1992). The plea must be “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Id. at 29. This is because “a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.” Id.
As an initial matter, Azure did not argue that his pleas were not voluntary on appeal. The “voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Bousley v. United States, 523 U.S. 614, 621 (1998). The Court has reviewed Azure's appeal, and he did not make any argument that can be construed as an attack on the voluntariness of his guilty pleas. Instead, Azure argued only that the Court erred by applying certain guideline adjustments related to offense conduct. See generally Azure, 852 Fed.Appx. 232. Because Azure did not raise the validity of his guilty plea on appeal, the claim is procedurally defaulted. See, e.g., Bousley, 523 U.S. at 621.
When a defendant has procedurally defaulted a claim by failing to raise it on appeal, the claim may only be raised in a § 2255 motion if the defendant can demonstrate either “cause” and actual “prejudice,” Murray v. Carrier, 477 U.S. 478, 485 (1986), or actual innocence. Smith v. Murray, 477 U.S. 527, 537 (1986). Azure does not argue that he is innocent, nor does he present any cause as to why this argument was not raised on direct appeal. Accordingly, Azure has procedurally defaulted on his challenge to a voluntariness of his plea and because no exception applies, the claim fails.
Even assuming arguendo, Azure could overcome the procedural default, which he cannot, his argument that his guilty pleas were not knowing and voluntary also fails on the merits. Indeed, Azure's statements (while under oath) at his change of plea hearing certainly contradict his argument. It is well-established that a defendant's statements at a plea hearing carry a strong presumption of truthfulness. United States v. Green, 521 F.3d 929, 931 (8th Cir. 2008); United States v. Ledezma-Rodriquez, 423 F.3d 830, 836 (8th Cir. 2005). “Allegations that contradict a defendant's statements at the change of plea hearing are inherently unreliable.” United States v. McHenry, 849 F.3d 699, 706 (8th Cir. 2017).
At his change of plea hearing, Azure was placed under oath. Doc. No. 45 at 4. He then represented that the plea agreement he signed reflected his full understanding of the agreement (id. at 15) and that no promises (such as a certain sentence) had been made in exchange for his guilty pleas. Id. at 19. Azure also indicated that he was aware that he could receive a sentence of life in prison. Id. at 10. Along these lines, he indicated he was aware of the possibility of upward adjustments in his sentence. Id. at 13-14, 15.
While Azure now claims his counsel led him to believe he would receive a sentence of no more than 30 years, the record decisively refutes his claim. Azure was fully aware that he was facing a potential life sentence and represented to the Court that he had not been promised anything in return for his guilty pleas. The statements made under oath at the change of plea hearing carry far more weight than Azure's current suggestion that he was led to believe he would receive a sentence of no more than 30 years. Put simply, the record directly refutes his claim, and Azure is not entitled to relief on this issue.
While not specifically argued by Azure, his challenge to the voluntariness of his pleas can also be construed as a claim for ineffective assistance of counsel. To obtain relief on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test announced in Strickland v Washington, 466 U.S. 668, 687 (1984). For the first prong, a petitioner must establish constitutionally deficient representation, meaning counsel's performance fell below an objective standard of reasonableness. Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019...
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