United States v. Hughes
| Decision Date | 11 May 2018 |
| Docket Number | CASE NO. 1:02-CR-5370-AWI |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Respondent v. MARCELONE HUGHES, Defendant-Petitioner |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR WRIT OF MANDAMUS
Petitioner Marcelone Hughes seeks a writ of mandamus compelling the U.S. Attorney for the Eastern District of California to file a Rule 35(b)1 motion requesting a reduction in his sentence. Petitioner argues he provided substantial assistance, was told by two Assistant U.S. Attorneys ("AUSA's") for the Central District of California that a Rule 35(b) motion would be filed on his behalf, and contends Mr. Rice, the AUSA for the Eastern District, has refused to file the motion for constitutionally impermissible and arbitrary reasons.2
Respondent counters that a U.S. Attorney has broad discretion whether to file a Rule 35(b) motion, AUSA Rice proffered valid, constitutionally sound reasons why such a motion would not be filed in this case, and the AUSA's in the Central District had no authority to bind the Eastern District AUSA to any such arrangement. Respondent thus asserts that, in the absence of a Rule 35(b) motion, the Court has no authority to alter Petitioner's sentence.
The Court will grant Petitioner an evidentiary hearing concerning whether a factual basis exists to find the government is bound to any promise to file a Rule 35(b) motion.
In July of 2003, a jury convicted Petitioner of one count each of armed bank robbery, brandishing a firearm during the robbery, possession of a semiautomatic assault weapon as an unlawful user of controlled substances, and marijuana possession; Petitioner also pleaded guilty to a second count of armed robbery. See Doc. No. 56. The Court found Petitioner to have a Category III criminal history, and sentenced him to 135 months for the armed bank robbery and possession charges, and 120 months consecutive for the brandishing charge. Id.
Petitioner appealed, challenging the sufficiency of the evidence and a failure to proffer a lesser-included offense for the armed bank robbery count. See Doc. No. 79. The Ninth Circuit affirmed, stating "based on the facts of this case the jury could not rationally have concluded that [Petitioner] was guilty of unarmed bank robbery but not armed bank robbery." Id. Petitioner then filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging issues of ineffective assistance of counsel, the propriety of a sentencing enhancement, and his inability to pay restitution; the Court denied the motion. See Doc. No. 80.
In December 2008, while imprisoned at FCI Victorville, in the Central District of California, Petitioner and another prisoner witnessed a "gang-related assault of another inmate." See Doc. No. 104 (the "Mandamus Writ"), at p. 1. John Rayburn, AUSA for the Central District of California, sought Petitioner's assistance in the government's case against the assailants, requesting that Petitioner testify before a grand jury and, if necessary, at trial. Id. Petitioner agreed to assist, and inquired as to whether his current sentence could be reduced in exchange. Id. AUSA Rayburn allegedly responded that while the conversation "was not apropriate [sic] at the time[,] once the case was finished, a motion for a reduced sentence would be filed on [Petitioner's] behalf in [his] sentencing District Court." Id. at p. 2. Petitioner was told by AUSA Rayburn "this was not a promise," but that if he cooperated he "would be taken care of." Id.
Petitioner testified against two assailants in the grand jury proceedings, one of whom pleaded guilty shortly afterwards. Id. Petitioner was placed in the witness protection program, and was contacted by AUSA Jerry "Bhenki" [sp], also of the Central District of California, to discuss Petitioner's testimony for the trial. Id. Petitioner asked AUSA Bhenki about sentencereduction, and Bhenki allegedly responded he "was not authorized to discuss the matter while the case was still ongoing, but that as long as [Petitioner] remained truthful and in compliance with the government, he had no objection to filing a Rule 35 motion on [Petitioner's] behalf." Id. Petitioner testified at the trial of the second assailant, who was acquitted by the jury. Id.
After the case against the assailants concluded, AUSA Bhenki contacted Dawrence Rice, the AUSA for the Eastern District who handled Petitioner's bank robbery trial, to inform him the government would be submitting a Rule 35(b) motion on Petitioner's behalf due to Petitioner's substantial assistance in the assault case, and requested AUSA Rice file the motion with this Court.3 Id. AUSA Rice protested, allegedly stating Petitioner's original robbery case was still "fresh in his mind" and therefore he would not file the 35(b) motion. Id. at 3.
AUSA Bhenki then told Petitioner he had "no reason to be discouraged and that the Government would do It's [sic] part and get the Rule 35(b) motion filed to [Petitioner's] District Judge." Id. However, no further action was taken by any other involved member of the government. See, generally, Id. Petitioner eventually filed the instant application for mandamus, seeking an order from this Court "compelling the Government to file a substantial assistance motion under Rule 35(b)." Id. at p. 1.
Thereafter, the Ninth Circuit recommended Petitioner's motion be stayed pending the Circuit Court's decision in a case related to a separate motion brought by Petitioner; this Court complied. See Doc. No. 114. On March 29, 2018, Petitioner requested the stay be lifted due to the delay in the Ninth Circuit proceedings; the Court granted this request, and ordered the parties to brief, inter alia, Petitioner's original Rule 35(b) motion. See Doc. No. 123.
Mandamus "is a drastic and extraordinary remedy reserved for really extraordinary causes." In re Bundy, 840 F.3d 1034, 1040 (9th Cir. 2016) (quoting Cheney v. U.S. Dist. Court,542 U.S. 367, 380 (2004). As the writ is one of the most potent weapons in the judicial arsenal, the petitioner (1) must have no other adequate means to attain the relief he desires, and (2) must show that his right to issuance of the writ is clear and indisputable. Id. "[E]ven if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Id.
A district court generally "may not modify a term of imprisonment once it has been imposed [unless, inter alia,] expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 819 (2010). Rule 35(b)(2)(C) provides that "[u]pon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant [provided] substantial assistance [which] involved . . . information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant." When a defendant has substantially assisted, the government has "the power, not the duty," to file such a motion. Wade v. United States, 504 U.S. 181, 185 (1992). In the absence of a government motion, "[a] sentencing court ordinarily cannot grant a downward departure for substantial assistance." United States v. Cueto, 9 F.3d 1438, 1441-42 (9th Cir. 1993); United States v. Low, 665 F. Supp. 2d 1203, 1206 (D. Haw. 2009) (); see also United States v. Awad, 371 F.3d 583, 588 (9th Cir. 2004) (). Simply, the government possesses a great deal of discretion as to whether to file a Rule 35(b) motion, similar to its "broad discretion" as to whom to prosecute. See Wayte v. United States, 470 U.S. 598, 607; United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982).
However, federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion if they find that the refusal was based on an unconstitutional motive, arbitrariness, or was made in bad faith. Wade, 504 U.S. at 185-86; United States v. Leonti, 326F.3d 1111, 1119 (9th Cir. 2003) () (citing United States v. Quach, 302 F.3d 1096, 1103 n. 3 (9th Cir. 2002)). "[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing, [nor] would additional but generalized allegations of improper motive." Wade, 504 U.S. at 186. Rather, a defendant must make a "substantial threshold showing" by stating a claim supported by "evidence that the Government refused to file a motion for suspect reasons[,] or that the prosecutor's refusal to move was not rationally related to any legitimate Government end." United States v. Treleaven, 35 F.3d 458, 461 (9th Cir. 1994).
Unconstitutional motives have often been described by courts as ones based on "race" or "religion." See Wade, 504 U.S. at 186 () (emphasis added). However, the Ninth Circuit also deems as an unconstitutional motive "retaliation for exercising ones Constitutional or statutory rights." United States v. Khoury, 62 F.3d 1138, 1141-43 (...
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