Eschief v. United States
| Decision Date | 17 February 2022 |
| Docket Number | CV 21-01276 PHX JJT (CDB),CR 16-01534(2) PHX JJT |
| Parties | Antonio Nathaniel Eschief Movant/Defendant, v. United States of America, Respondent. |
| Court | U.S. District Court — District of Arizona |
THE HONORABLE JOHN J. TUCHI:
REPORT AND RECOMMENDATION
Before the Court is Antonio Eschiefs pro se motion to vacate, set aside, or correct his sentence, seeking relief pursuant to 28 U.S.C. § 2255.
A grand jury indictment returned December 20, 2016, charged Eschief and a codefendant with assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). (Criminal Docket (“CR”) ECF No. 7).
On October 4, 2017, Eschief was given leave to proceed with retained counsel (Mr. Brown). (CR ECF Nos. 51 & 61). Eschiefs trial was continued several times. On March 19 2018, the Court sua sponte continued the trial to July 3 2018; at that time Eschiefs primary counsel, Mr. Brown, was deceased. (CR ECF Nos. 67 & 68). On May 24, 2018, Mr. Faussette formally notified the Court of the death of Mr. Brown and entered an appearance on behalf of Eschief. (CR ECF No. 72).
On July 19, 2018, pursuant to a written plea agreement, Eschief pled guilty to the second count of the indictment, i.e., discharging a firearm during a crime of violence. (CR ECF Nos. 78 & 79). The written plea agreement noted the mandatory minimum sentence and the maximum sentence for this crime. (CR ECF No. 79).[1] In return for Eschief's guilty plea the Government agreed to dismiss the charge of assault with a deadly weapon. (CR ECF No. 79 at 3). In the written plea agreement Eschief waived all motions and defenses, and also waived his right to appeal or collaterally attack his conviction and sentence other than to assert an “otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct.'” (CR ECF No. 79 at 4). In the written plea agreement Eschief admitted to committing a crime of violence as charged in the first count of the indictment, i.e., the predicate offense of assault with a dangerous weapon. (CR ECF No. 79 at 7). Eschief admitted he knowingly discharged a firearm “‘during and in relation'” to the crime. (CR ECF No. 79 at 7-8). Eschief also admitted to a detailed factual basis for the crime to which he was pleading guilty. (CR ECF No. 79 at 8).
Additionally, in the written agreement Eschief avowed: he had read the plea agreement and voluntarily accepted the bargain; he had discussed his constitutional rights with his attorney and understood the rights he was waiving by pleading guilty; he had been advised by his counsel regarding the nature of the charge to which he was pleading guilty and the range of sentence he faced pursuant to this conviction; that the written plea agreement contained all the terms and conditions of the plea; and that any promises or predictions as to his sentence or the application of the United States Sentencing Guidelines not contained in the written agreement were “void and have no force and effect.” (CR ECF No. 79 at 8-9). He further stated his counsel had represented him in a competent manner in negotiating the plea agreement and advising him as to the terms of the plea agreement. (CR ECF No. 79 at 9). In the final written plea agreement the Government stipulated that Eschief's sentence would not exceed ten years' imprisonment, and agreed to recommend a reduction in Eschief's sentence if he accepted responsibility for his crimes and cooperated with the Government. (CR ECF No. 92 at 2-3; CR ECF No. 93 at 2; CR ECF No. 95).
A presentence investigation report (“PSR”) was prepared. (CR ECF Nos. 84 & 88). The PSR determined “the guideline sentence is the term of imprisonment required by statute, ” and that (CR ECF No. 88 at 5). The PSR calculated a criminal history category of III, and reiterated the guideline sentence was the minimum term of imprisonment required by statute, i.e., 18 U.S.C. § 924(c)(1)(A)(iii).[2] (CR ECF No. 88 at 7, 10). With regard to the impact of the plea agreement on Eschief's sentence the PSR noted that, had Eschief pled guilty to both counts of the indictment, his guideline sentence on Count One would have been 27 to 33 months' imprisonment, to be served consecutively to the required minimum ten-year sentence on Count Two. (CR ECF No. 88 at 11).
At the conclusion of a sentencing hearing conducted December 10, 2018, Eschief was sentenced to a term of 92 months' imprisonment, i.e., approximately seven and one-half years' imprisonment, followed by a term of three years supervised release. (CR ECF No. 94; CR ECF No. 111 (transcript of sentencing hearing)).[3]
Eschief did not appeal his conviction or his sentence. On August 5, 2019, he filed a letter asking the Court to appoint counsel, apparently referencing United States v. Davis, 139 S.Ct. 2319 (2019). (CR ECF No. 96, see also Eschief v. United States, No. 2:19-cv-04927 JJT). The Court forwarded the letter to the Federal Public Defender, who noticed the Court that there was no basis for appointment of counsel. See Eschief, No. 2:19-cv-04927 JJT at ECF No. 5. The Court notified Eschief that it was construing the letter as a motion pursuant to § 2255, and allowed Eschief to file a notice of withdrawal or an amended § 2255 motion. Id. Eschief then withdrew his letter requesting relief and on September 10, 2019, the § 2255 motion was denied and the matter dismissed without prejudice. See id. at ECF Nos. 6 & 7.
On July 22, 2021, Eschief filed the pending motion to vacate, set aside, or correct sentence pursuant to § 2255. (Civil Docket (“CV”) ECF No. 1). Eschief asserts his counsel was ineffective for failing to protect his “rights to appellate review, or collateral proceedings.” (CV ECF No. 1 at 4). He contends his counsel failed “to explain the complicated procedures of appeal and the 28 USC § 2255 process, and allow[ed] the Government to draft and posit a ‘one-sided plea agreement that was prospective and unequal in nature.'” (Id.). In his memorandum in support of his motion Eschief presents this issue as follows: “Was Counsel ineffective by allowing the U.S. Attorney to prepare and present a drafted Plea Agreement/Bargain, which left the Government with a[n] overwhelming superior bargaining position, and which violates ‘contract law.'” (ECF No. 1-1 at 4).
Eschief also alleges counsel was ineffective because there were “discrepencies [sic] between the Indictment, Plea Agreement, and Sentencing Colloquy” and, accordingly, his sentence “cannot be viewed as reliable” because it is unclear “what information the Court relied upon when imposing the sentence.” (CV ECF No. 1 at 5). In his memorandum Eschief contends his counsel was ineffective for failing “to notice that the language contained in the ‘Plea Agreement' did in effect ‘amend' the language and charges contained in the Indictment.'” (ECF No. 1-1 at 4). He further alleges the “[i]ndictment was insufficient where it failed to allege each and every ‘element' of the offense.” (Id.). Eschief allows he did not raise his second claim for relief on appeal, explaining he “waived appellate rights on the [advice] of counsel” and, therefore, he “did not file a direct appeal.” (CV ECF No. 1 at 6).
(CV ECF No. 1 at 7). In his memorandum Eschief argues his “‘ignorance' of existing rights (at the time) - now void the Plea Agreement and waiver of Appellate rights, where Counsel was ineffective insofar as of his duties to explain to Petitioner his rights.” (CV ECF No. 11 at 4).
In his fourth claim for relief Eschief asserts his counsel was ineffective because the “plea agreement contained charge[s] that were not handed down by the Grand Jury, ” constituting “a constructive amendment of the indictment.” (CV ECF No. 1 at 8). In his memorandum he contends “. where Petitioner's Plea Agreement contains a charge that was not handed down by the grand jury, is this a reversible error which must be attributed to defense counsel?” (CV ECF No. 1-1 at 5). Eschief also asserts his counsel was ineffective with regard to sentencing, alleging “that where he did not have more than (1) one criminal history point that counsel's failure to raise and advocate for an application of the safety valve was negligence.” (CV ECF No. 1 at 8). Eschief maintains his counsel was ineffective for failing to argue for a lesser sentence based on his criminal history and because “based upon a mens rea argument- [i.e., that his crime] was not a ‘per se' a ‘crime of violence.'” (CV ECF No. 1-1 at 33).
In his memorandum in support of his motion, Eschief “asserts that he is entitled to ‘resentencing' based on the Supreme Court's holding in United States v Davis ...” (CV ECF No. 1-1 at 5). The bulk of Eschief's memorandum in support of his request for § 2255 relief is devoted to a discussion of Davis. With regard to his claim of errors in the plea agreement, Eschief states that the plea agreement incorrectly stated the “mandatory minimum term of imprisonment is ... (here it must be noted that ‘[five years] was crossed out in the plea agreement - by ink pen, and ...
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