United States v. Juliano, No. 2:18-cr-00021-SMJ
| Decision Date | 09 April 2020 |
| Docket Number | No. 2:18-cr-00021-SMJ |
| Court | U.S. District Court — District of Washington |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JASON LESLIE JULIANO, Defendant. |
Before the Court is Defendant's petition to vacate, set aside, or correct his sentence of 240 months' imprisonment after pleading guilty to possessing methamphetamine with the intent to distribute and being a felon in possession of a firearm. Defendant alleges his attorneys rendered ineffective assistance by failing to advise him of pending legislation and in failing to move for a reduction in the charge of possession with intent to distribute methamphetamine. For the following reasons, the Court finds that Defendant's first claim, even if accepted as true, does not amount to ineffective assistance of counsel and that the second is foreclosed by Defendant's waiver of the right to appeal his sentence. Because it is clear from the face of the petition that Defendant is entitled to no relief, the Court dismisses it without a response from the Government and without an evidentiary hearing.
On January 24, 2018 Defendant was indicted for possession with intent to distribute fifty grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). ECF No. 1. On June 7, 2018 Defendant pled guilty to both counts. See ECF No. 62; ECF No. 63 at 1-2. Defendant did so after entering a plea agreement with the Government that contained several relevant provisions set out in more detail below. See ECF No. 63. On October 11, 2018, the Court accepted the plea agreement and sentenced Defendant to 240 months' imprisonment, the minimum permitted under law because Defendant had previously been convicted of a felony drug offense. ECF No. 36 at 2; ECF No. 86 at 2; 21 U.S.C. § 841(b)(1)(A).1 On September 23, 2019, Defendant filed this pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 90.
Under § 2255, a prisoner incarcerated pursuant to the judgment of a federal court may move the sentencing court to vacate, set aside, or correct the sentencebecause it "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).
On receipt of such a motion, the Court must perform a preliminary review of the bases it sets forth and the relief it requests. The Court may dismiss a prisoner's § 2255 motion without service on the Government, without an evidentiary hearing, and without entering findings of fact and conclusions of law if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id. § 2255(b). In deciding whether the Court must summarily dismiss a § 2255 motion, "[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." Withers, 638 F.3d at 1062 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). The Court must liberally construe a pro se § 2255 motion. Orona v. United States, 826 F.3d 1196, 1199 (9th Cir. 2016); Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012).
Defendant was sentenced after he pled guilty pursuant to a plea agreement he entered with the Government. See ECF No. 63. As part of that agreement, Defendant agreed to the following provision:
Id. at 11-12 (emphasis added).
A criminal defendant who enters into a plea agreement may, by doing so, prospectively waive his right to appeal or collaterally attack his sentence or conviction. United States v. Watson, 582 F.3d 974, 986 (9th Cir. 2009). Such an appeal waiver is, however, only valid to the extent it is "knowingly and voluntarily made." Id. (quoting United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004)). Defendant does not argue that his waiver of the right to appeal or seek post-conviction relief was involuntary or made without understanding of its consequences, and the Court's independent review of the record discloses no basis that would support that conclusion. Accordingly, the Court must evaluate each of the two grounds for relief set forth in the petition to determine whether they are foreclosed by the appeal waiver.
Defendant first argues that his attorneys were ineffective in failing to advise him about legislation pending at the time he was sentenced, namely the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5194-249 (2018) ("First Step Act"). Among other criminal justice reforms, the First Step Act reduced, from twenty years to fifteen years, the mandatory minimum penalty for certain drug crimes where the defendant had previously been convicted of "a serious drug felony or serious violent felony." See id. at 132 Stat. 5220 (codified at 21 U.S.C. § 841(b)(1)(A)). The First Step Act was signed into law on December 21, 2018, approximately two months and one week after Defendant was sentenced under the earlier, twenty-year recidivist provision. See id. at 132 Stat. 5194. Defendant would likely have benefited from the reduced mandatory minimum penalty if he was sentenced after the First Step Act was signed into law. Id. at 132 Stat. 5221 (). He argues that his attorneys were ineffective in failing to advise him about the First Step Act and in failing to seek a continuance of sentencing until the law took effect. ECF No. 90 at 4, 12-16.
As an initial matter, the Court finds the first ground of the petition is notforeclosed by the appellate waiver in Defendant's plea agreement, which specifically exempted claims of ineffective assistance of counsel "based on information not [then] known by Defendant and which, in the exercise of due diligence, could not be known by Defendant by the time the Court impose[d] the sentence." ECF No. 63 at 11-12. Defendant credibly contends he had no access to news of current events while incarcerated prior to sentencing and thus his attorneys were the only potential conduit of information that pending legislation could inure to his benefit. See ECF No. 90 at 12-13. Accordingly, the Court finds this argument is premised on information Defendant could not, in the exercise of reasonable diligence, have known at the time he pled guilty or before sentencing, and the Court proceeds to evaluate the merits of the argument.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970); Yarborough v. Gentry, 540 U.S. 1, 5 (2003). To establish that defense counsel provided ineffective assistance, the defendant must show "counsel's performance was deficient" and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to show either element defeats the claim. Id. at 697.
Deficient performance occurs if "counsel's representation fell below an objective standard of reasonableness." Id. at 688. This standard requires"reasonableness under prevailing professional norms" and "in light of all the circumstances." Id. at 688, 690. The defendant must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To do so, the defendant must show counsel's performance cannot be explained as a legitimate strategic or tactical decision. Id. Prejudice occurs if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This standard requires evaluating the totality of the record. Id. at 695.
Though the Court is aware of no controlling precedent on the issue raised by the first ground of the petition, those courts that have considered it have uniformly concluded that a defense attorney is not deficient in failing to anticipate a change in the law. See Lopez v. Candelaria, 19 F. App'x 649, 650 (9th Cir. 2001) (memorandum disposition) (); Howard v. Gittere, 392 F. Supp. 3d 1205, 1213 (D. Nev. 2019) (citing Pinkston v. Foster, 506 F. App'x 539, 542 (9th Cir. 2013)) ("Counsel's failure to anticipate a change in the law does not constitute ineffective assistance of counsel."); Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (collecting cases) ("[T]he case law is clear that an attorney's assistance is not rendered ineffective becausehe failed to anticipate a new rule of law."); Ballard v. United States, 400 F.3d 404, 408 ...
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