Haft v. United States, Case No. 3:12-cr-00042-SI

• Decision Date: 23 December 2013
• Docket Number: Case No. 3:12-cr-00042-SI
• Parties: PATRICK SHANNON HAFT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of Oregon

PATRICK SHANNON HAFT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 3:12-cr-00042-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Dated: December 23, 2013

OPINION AND ORDER

Dennis N. Balske, Law Office of Dennis N. Balske, 621 S.W. Morrison Street, Suite 1025, Portland, OR 97205. Attorney for Petitioner.

S. Amanda Marshall, United States Attorney, and Leah K. Bolstad, Assistant United States Attorney, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Attorneys for Respondent.

Michael H. Simon, District Judge.

Before the Court is petitioner Patrick Shannon Haft's ("Haft") motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Dkt. 64. For the following reasons, the motion is GRANTED IN PART.

STANDARDS

Section 2255 permits a prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he 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 . . . .

28 U.S.C. § 2255(a).

Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). In determining whether a Section 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citation and quotation marks omitted). A district court may dismiss a Section 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 & n.3 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see also United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). Conclusory statements in a Section 2255 motion are insufficient to require a hearing. Hearst, 638 F.2d at 1194.

The leading federal case governing claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under Strickland, a challenger must prove: (1) that counsel's performance was deficient; and (2) that there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688.

Under the first Strickland prong, in order for counsel's performance to be constitutionally deficient, it must fall below an objective standard of reasonableness. Id. A "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances,the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 687).

"Strickland held that 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010) (quoting Strickland, 466 U.S. at 691).¹ The specific standards governing counsel's duty to investigate provide:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

. . . And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

Miles v. Ryan, 713 F.3d 477, 490 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 690-91). The Strickland standard governing counsel's obligations to investigate and present mitigatingevidence applies at sentencing. Cox v. Del Papa, 542 F.3d 669, 678 (9th Cir. 2008) (citing Wiggins v. Smith, 539 U.S. 510, 521-23 (2003)).

Under the second Strickland prong, prejudice is established where there is "a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. To show prejudice in the context of a plea of guilty, the challenger must demonstrate that "'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). "The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative choices of action open to the defendant." Hill, 474 U.S. at 56 (citation and quotation marks omitted). In the sentencing phase of a noncapital case, trial counsel error that results in prejudice can satisfy the second prong of Strickland. Glover, 531 U.S. at 204 (holding that a showing of prejudice in an ineffective assistance of counsel claim does not require a significant increase in the term of imprisonment and that prejudice is shown where there is "any amount of [additional] jail time"); see also United States v. Kwan, 407 F.3d 1005, 1018 (9th Cir. 2005 (quoting United States v. Castro, 26 F.3d 557, 560 (5th Cir. 1994)), abrogated on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice makes it unnecessary to examine the other prong. See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test). Where the Strickland test is satisfied, the remedy under Section 2255 isthat the court "shall vacate and set aside the judgment" and do one of four things: "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

BACKGROUND

On February 1, 2012, a federal grand jury issued a four-count indictment charging Haft with (1) Possession with Intent to Distribute Heroin; (2) Possession with Intent to Distribute Cocaine; (3) Possession with Intent to Distribute Methamphetamine; and (4) Felon in Possession of Ammunition, as well as including a criminal forfeiture allegation. The Government extended a plea agreement to Haft. The plea agreement was negotiated by Assistant United States Attorney ("AUSA") Leah Bolstad on behalf of the Government and was approved by AUSA Scott Kerin (Gang Unit Chief) and AUSA John Deits (Drug Unit Chief). Pursuant to the plea agreement, Haft was to plead guilty to Counts 1 and 4 of the Indictment. The mandatory minimum term of imprisonment on Count 1 is ten years and the maximum term is life. 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(i). The maximum term of imprisonment on Count 4 is ten years. 18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(a)(2).

On January 8, 2013, Haft pleaded guilty to Counts 1 and 4 of the Indictment. At the change of plea hearing, the Court asked Haft if he was "fully satisfied with the legal counsel, the representation, the legal advice given to [him] in this case so far by [his] attorney, Ms. Morgan?" Haft replied: "I am." The plea agreement provided that Haft was not "safety valve eligible" under U.S.S.G. § 5C1.2. The plea agreement also provided that trial counsel could seek a downward departure, adjustment, or variance based on the factors listed in 18 U.S.C. § 3553(a), but could not request a sentence lower than the mandatory minimum of ten-years imprisonment. Under the please agreement, Haft's right to appeal and to seek post-conviction relief was limitedunder Section 2255 to challenges based on ineffective assistance of counsel, as provided in Federal Rule of Criminal Procedure 33 and 18 U.S.C. § 3582(c)(2).

At the sentencing hearing on April 8, 2013, the Government recommended a sentence of 135-months imprisonment, at the low end of the advisory guideline range. Defendant's trial counsel asked for a sentence of the mandatory minimum of ten years. Also at the hearing, defense counsel presented mitigation evidence including witnesses and letters to the Court. Under the United States Sentencing Commission Guidelines Manual, Haft's offense level of 33 and Criminal History Category of II rendered an advisory guideline imprisonment range of 151 months to 188 months. Haft was sentenced on April 8, 2013, consistent with defense counsel's sentencing request, to a sentence of 120 months' imprisonment each for Count 1 and Count 4...