Terry v. United States
| Decision Date | 02 September 2021 |
| Docket Number | CV-20-00029-TUC-CKJ,CR-16-01350-CKJ-EJM-1 |
| Parties | Derek Lamont Terry, Defendant/Movant, v. United States of America, Respondent. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Defendant Derek Lamont Terry's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. (CV 1, CR 358).[1] For the following reasons, Defendant's motion is DENIED.
Between January 1, 2016, and April 27, 2016, Defendant Derek Lamont Terry met, recruited, and trained “Jane Doe, ” a juvenile female, to engage in prostitution. (CR 282 at 9). Defendant was aware of Doe's real name and age and posted advertisements for her on backpage.com. Id. Once the advertisements were posted, individuals would contact Doe to set up dates where Doe would perform sex acts with the individuals for money. Id. Because Defendant was Doe's pimp, Doe would give Defendant the money she earned from her dates. Id. On occasion, Doe would also “double date” with Defendant's main prostitute. Id.
When working for Defendant, Doe conducted both “in calls” and “out calls.” Id. at 10. “In calls” were situations where customers would come to a prearranged motel to engage in sex for money. Id. Defendant rented the motel rooms and hosted “in calls” in Arizona and California. Id. Defendant also arranged for Doe to perform “out calls, ” where Doe would travel to individuals to engage in sex for money. Id. During “out calls” Doe communicated with Defendant via telephone regarding the times, locations, and transportation logistics to and from the dates. Id.
Defendant drove Doe within the state of Arizona and from Arizona to California so that Doe could engage in prostitution. Id. Defendant also traveled with Doe and his main prostitute from Arizona to California, where he rented a room at the Super 8 Motel in San Bernardino, California, for Doe to use for prostitution. Id.
Additionally from on or about June 1, 2016, through on or about June 8 2016, Defendant knowingly transported “S.C., ” another underage female, from California to Arizona with the intention of having S.C. engage in prostitution. Id. In order to travel from California to Arizona, Defendant obtained a rental car in California with the assistance of his then girlfriend. Id. Defendant then drove S.C from California to Arizona to engage in prostitution through the posting of internet advertisements on backpage.com. Id. Defendant also admitted that on or about June 4, 2016, through on or about June 8, 2016, he drove S.C. from Arizona to Texas to engage in prostitution through the posting of internet advertisements on backpage.com. At all times, Defendant was aware that S.C. was under the age of 18.
On August 28, 2017, the Court granted the Government's stipulated motion to transfer the related Phoenix case to Tucson and consolidate this matter with the Phoenix case to allow Defendant to enter into a combined plea agreement and be sentenced in both cases at the same time. (CR 277).
On August 31, 2017, Defendant entered into a written plea agreement with the prosecution, pleading guilty to one count of Sex Trafficking of Children, in violation of 18 U.S.C. § 1591(a), and two counts of Transportation of a Minor with Intent to Engage in Prostitution, in violation of 18 U.S.C. § 2423(a). (CR 282 at 1-2). The same day, at Defendant's change of plea hearing, the Magistrate Judge reviewed the plea agreement with Defendant to ensure that Defendant understood the terms and effects of the agreement. (CR 300) The Magistrate Judge also confirmed that Defendant's plea was voluntary and that Defendant's attorney thoroughly explained the plea agreement to him. Id. The following colloquy is taken directly from transcripts of the hearing:
(CR 300 at 5:20-25; 8:14-22).
In addition to ensuring that Defendant was voluntarily entering the plea agreement and that he understood its terms and effects, the Magistrate Judge then asked whether Defendant understood that the plea agreement contained an appeal waiver. During this colloquy the following exchange occurred:
On February 23, 2018, Defendant appeared for sentencing where the Court again asked Defendant if he knew the terms and effects of his plea agreement; whether his attorney explained the terms of the plea agreement; and whether he was satisfied with his attorney's services. The following exchange took place:
(CR 355 at 2:21-3:15).
On February 27, 2018, a final judgment and commitment was entered (CR 342), to which Defendant filed a pro se Notice of Appeal the following day. (CV 1-2 at 8). On March 1, 2018, Defendant's trial attorney also filed a Notice of Appeal. (CR 343).
On March 14, 2018, Defendant's trial attorney filed a motion to withdraw as counsel on appeal, stating that he spoke with Defendant about the claims that Defendant was likely raising on appeal, that there was a valid waiver of appeal, and that counsel could no longer ethically continue representing Defendant on appeal due to effect of the waiver. (9th Cir. Doc. 6).[2] Defendant was subsequently appointed appellate counsel. (9th Cir. Doc. 12).
In his Anders brief, appellate counsel explained that the trial court conducted a proper Rule 11 plea colloquy, Defendant knowingly and voluntarily pleaded guilty, Defendant waived all constitutional claims that occurred before the plea, and that the waiver was valid. (9th Cir. Doc. 15).
On January 15, 2019, the United States Court of Appeals for the Ninth Circuit granted counsel's Anders brief, held that Defendant waived his right to appeal his convictions, and concluded that the record contained no arguable issues as to the validity of Defendant's waiver. See United States v. Terry, 749 Fed.Appx. 580, 581 (9th Cir. 2019). The court also declined to address Defendant's claims of ineffective assistance of counsel, as direct appeal was not the appropriate mechanism to raise collateral claims challenging an underlying conviction. Id.
On January 17, 2020, Defendant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV 1) On September 3, 2020, the Government filed its Response to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (CV 10). On November 16, 2020, Defendant filed his Reply to the United States Response Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (CV 11). This Order follows.
A federal prisoner may seek relief under 28 U.S.C. § 2255 if: (1) his sentence was imposed in violation of the United States Constitution or the laws of the United States; (2) the sentencing court had no jurisdiction to impose the sentence on the prisoner; (3) the sentence imposed exceeded the maximum sentence authorized, or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In the context of a guilty plea, a petitioner must demonstrate the existence of an error of constitutional magnitude that had a substantial and injurious effect or influence on the plea itself. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). “Where a [movant] has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the movant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal citation and quotation marks omitted). In cases where the underlying guilty plea is found to have been made knowingly and voluntarily, the guilty plea forecloses independent claims, such as constitutional claims, where the issue occurred prior to pleading guilty. See Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985).
Section 2255 requires that the district court grant a petitioner's motion to hold an evidentiary hearing “unless the motion and...
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