United States v. Brizan
| Decision Date | 09 March 2015 |
| Docket Number | CASE NO. 1:06-CR-59 |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff v. FRANCHESKA BRIZAN, Defendant |
This matter arises from the guilty plea of Petitioner Francheska Brizan ("Petitioner"). On November 11, 2014 Petitioner brought a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. Section 2255. Petitioner's complaint alleges three grounds for relief. The first two grounds allege ineffective assistance of counsel prior to entering into her plea agreement. The third ground is a freestanding claim of factual innocence.
On or about January 1, 2000 and continuing to on or about May 22, 2006 Petitioner had actual knowledge of the fact that her husband and co-defendant, Phillip Brizan, and others had conspired to distribute and possess with intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine. Doc. 485. During that time period, lawenforcement officers intercepted calls during wiretaps of cellular telephones used by the Petitioner and her husband. During one of the intercepted phone calls, Petitioner, with knowledge of a 38.5 kilogram cocaine transaction, attempted to conceal the transaction by telling her husband that he "should really change" phones and the other phone has a "totally different address." Doc. 485. at 8.
On August 10, 2006 Petitioner was charged in a twenty-three count Third Superseding Indictment with (1) Conspiracy to Distribute and to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846; and (2) Attempted Possession with Intent to Distribute Cocaine and Aiding and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and 18 U.S.C § 2. Doc. 98. Petitioner was also charged in a single count Superseding Information with Misprision of a Felony, in violation of 18 U.S.C. § 4. Doc. 488. On October 10, 2009 Petitioner and her then counsel signed a plea agreement to plead guilty to Misprision of a Felony in violation of 18 U.S.C. § 4. Doc. 485 at 2. On August 29, 2011 Petitioner was sentenced to four months custody and 12 months supervised release. Doc. 634. As a result of that plea agreement, the government moved to dismiss the charges alleged in the Third Superseding Indictment as to Petitioner. Doc. 684 at 14.
On November 11, 2014 Petitioner brought a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Doc. 687. Petitioner asserts three grounds for relief: (1) that her attorney failed to advise her, in contravention of her Sixth Amendment right to counsel, that the superseding information was defective; (2) that her attorney failed to advise her, in contravention of her Sixth Amendment right to counsel, of her Fifth Amendment privilege against self-incrimination as it relates to the offense of Misprision of a Felony; and (3) that she is actually and factually innocent of the offense Misprision of a Felony.
Title 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 thesentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Under Rule 4(b) of the Rules Governing § 2255 Proceedings, when a court receives a § 2255 motion, the court must initially screen it, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief. See United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986). Summary dismissal pursuant to Rule 4 is appropriate only where the allegations of the petitioner are "vague [or] conclusory," "palpably incredible" or "patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76.
A Petitioner cannot assert ineffective assistance of counsel in failing to investigate the case or failing to file pre-trial motions. Petitioner waived her pre-plea ineffective assistance of counsel claim when she entered her guilty plea. United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005) (), cert. denied, 546 U.S. 891 (2005); United States v. Cortez, 973 F.2d 764, 767 (9th Cir.1992) (); United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992) (per curiam) (). The Supreme Court has noted:
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea....
Tollett v. Henderson, 411 U.S. 258, 267 (1973). "[A] guilty plea represents a break in the chain of events which has proceeded it in the criminal process[.]" Tollett, 411 U.S. at 267. Thus, challenges to guilty pleas in the federal habeas context are generally limited to two major issues: (1) whether the plea was voluntary and intelligent; and (2) whether the petitioner received constitutionally adequate assistance of counsel with regard to the plea process. See United States v. Broce, 488 U.S. 563, 569 (1989).
Here Petitioner claims that the plea was not voluntary and intelligent because she received constitutionally inadequate counsel. Doc. 687 at 6. Petitioner claims that her attorney failed to move to dismiss the superseding information for failure to allege an essential element of the charged offense. Doc. 687 at 6. It appears that this first ground was therefore waived as it asserts ineffective assistance of counsel pre-plea agreement. However, in an abundance of caution, this Court will address this claim on the merits.
To establish a constitutional violation for ineffective assistance of counsel, a § 2255 petitioner must show: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that the deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). To prove deficient performance of counsel, Petitioner must demonstrate that her attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985). Courts must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and that counsel "exercised acceptable professional judgment in all significant decisions made." See Strickland, 466 U.S. at 689; Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). Judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 677-678; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). However, "a poor tactical decision may constitute deficient conduct if the defendant [can] overcome the presumption that, under the circumstances, the challenged action might be considered sound ... strategy." Reynoso v. Giurbino, 462 F.3d 1099, 1113 (9th Cir.2003) (quoting Strickland, 466 U.S. at 689).
To establish prejudice a 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." Lafler v. Cooper, --- U.S. ----, 132 S. Ct. 1376, 1384 (2012).
Petitioner's first ground alleges that her attorney failed to advise her that the superseding information failed to allege an essential element of the crime. Petitioner claims the indictment failed to allege that she took an affirmative step to conceal a felony and as such, could have been dismissed prior to entering the plea deal. The indictment in any case must be "a plain, concise, and definite written statement of the essential facts constituting the offense charged. . ." R. Crim. P. 7. An indictment that tracks the statutory language is generally sufficient to state a claim, but it must "be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description with which he is charged." Russell v. United States, 369 U.S. 749 (1962); United States v. Afshari, 635 F. Supp. 2d 1110, 1121 (C.D. Cal. 2009). An indictment "need only set forth the essential facts necessary to inform the defendant of what crime she is charged; it need not explain all factual evidence to be proved at trial." United States v. Blinder, 10 F.3d 1468, 1476 (9th Cir. 1993).
What the above cases make clear is that the sufficiency of any indictment turns on the factual inquiry of whether enough was included to apprise the accused of the crime they are being charged with. Petitioner...
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