United States v. Taylor

• Decision Date: 24 May 2022
• Docket Number: 1:18-CR-00076 JLT BAM
• Parties: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. SHEENA TAYLOR, Defendant-Movant.
• Court: U.S. District Court — Eastern District of California

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
SHEENA TAYLOR, Defendant-Movant.

No. 1:18-CR-00076 JLT BAM

United States District Court, E.D. California

May 24, 2022

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE UNDER 28 U.S.C. § 2255 IN PART AND ORDERING EVIDENTIARY HEARING

(DOC. 301)

Ms. Taylor filed a motion to vacate, set aside, or correct her 150-month sentence under 28 U.S.C. § 2255. (Doc. 301.) Despite having entered a plea agreement that estimated her sentence in the range of 188 to 235 months, she now argues that the ineffective assistance of her counsel undermined her ability to enter the agreement knowingly and voluntarily. (Id.; Doc. 133 at 9.) For the reasons set forth below, the Court DENIES the motion on Grounds One, Two, Three, and Four and ORDERS an evidentiary hearing to determine the merits of Ground Five.

I. BACKGROUND

In 2018, Movant was indicted for one count of conspiracy to distribute and possession with intent to distribute methamphetamine and heroin. (Doc. 1 at 1.) In a parallel case, the Government charged Movant with a related crime that it subsequently dismissed pursuant to the plea agreement entered in this case. (Doc. 133 at 4.) Movant pleaded guilty to count one on April 29, 2019. (Id. at 2, 11.) The plea agreement contains express waivers of certain constitutional

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rights, including the right to appeal or collaterally attack under 28 U.S.C. § 2255 her conviction or sentence. (Id. at 9-10.) The agreement estimated Movant's sentence to be within the range of 188 to 235 months based on the assumption that Movant's criminal history would place her in criminal history Category II. (Id. at 8-9.) Movant alleges the Government promised to recommend a five-year sentence, which does not appear in the plea agreement. (Doc. 301 at 14.)

During the presentencing investigation, the United States Probation Office discovered Movant had additional prior criminal history of various state drug-related offenses, which placed her in Category IV for purposes of the federal sentencing guidelines. (Doc. 182 at 13.) Movant does not dispute her criminal history and understood before entering the plea agreement that her prior convictions could impact her sentence in this case. (Doc. 301 at 13; Doc. 358 at 152.) However, Movant believed her former attorney, who represented her in the state criminal cases, expunged or was working to expunge the state charges from her record. (Doc. 301 at 13.) According to Movant, she asked her attorneys representing her in this case, Ms. Moran and Ms. Kinder, ^[1] to ensure her state charges had been expunged. (Id.) Ms. Moran and Ms. Kinder dispute this fact and maintain Movant never retained their firm for expungement of the state charges. (Doc. 358 at 59-60, 77.)

At the time of sentencing, the state charges had not been expunged. (See Doc. 182 at 1013.) The Court accepted Probation's calculation of the applicable guideline range of 235 to 293 months, based on a total offense level of 35 and Criminal History Category IV. (See id.; Doc. 338 at 3.) Probation recommended sentencing at the low end of the guidelines range and a motion was presented to reduce the sentence by an additional thirty percent. (See Doc. 338 at 3.) The Court sentenced Movant to 150 months of confinement in federal prison. (Doc. 358 at 43.)

Movant alleges that following the sentencing hearing, she repeatedly asked Ms. Moran to seek an appeal, because she believed she was entitled to a sixty-month sentence. (Doc. 301 at 1416.) Ms. Moran denies receiving any request to file a notice of appeal. (Doc. 358 at 61-62.) On

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October 23, 2020, Movant filed a motion to vacate, set aside, or correct her sentence, arguing that Ms. Moran's alleged deficient conduct throughout the plea-bargaining process, sentencing, and after sentencing amounts to ineffective assistance of counsel such that she was deprived of her Sixth Amendment right to counsel. (Doc. 301.)

II. LEGAL STANDARD

A. Collateral Attack under 28 U.S.C. § 2255

A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence pursuant to § 2255, filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). A § 2255 motion entitles a federal prisoner to relief “[i]f the court finds that . . . there has been . . . a denial or infringement of the constitutional rights of the prisoner . . . .” 28 U.S.C. § 2255(b). Generally, only a narrow range of claims fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). To warrant relief, a movant must demonstrate the existence of an error of constitutional magnitude that had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”). The alleged error of law must be “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

The pleadings of a pro se litigant are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, the requirement of liberal construction does not mean the court can ignore an obvious failure to allege facts that set forth a cognizable claim. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (stating “vague and conclusory” allegations in a § 2255 motion do not support relief). “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see also Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) (“We also concur in the

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dismissal of the allegations concerning the photographic array shown to some witnesses as vague, conclusory and without any facts alleged in support of the claim.”).

B. Ineffective Assistance of Counsel

A defendant may collaterally attack the validity of her plea, conviction, or sentence if defendant's counsel deprived defendant of the Sixth Amendment right to “effective assistance, simply by failing to render ‘adequate legal assistance.'” Stricklandv. Washington, 466 U.S. 668, 686 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). To mount an ineffective assistance of counsel challenge, the petitioner must establish two elements: deficient performance and prejudice. See Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient performance means counsel's representation “fell below an objective standard of reasonableness considering all the circumstances.” Stanley, 633 F.3d at 862 (citing Strickland, 466 U.S. at 688). To show deficient performance of counsel, the petitioner must demonstrate that his 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, 375-76 (9th Cir. 1985). A fair assessment of attorney performance requires courts to make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Courts accord a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

When the defendant challenges a sentence or conviction that resulted from a plea agreement, the movant must demonstrate the advice from counsel was “so incorrect and so insufficient that it undermined [movant's] ability to make an intelligent decision about whether to accept the [plea] offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (internal quotations omitted). The question is not whether “counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his

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attorney's deficiencies, ” and “should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee v. United States, 137 S.Ct. 1958, 1967 (2017).

As to the second element, prejudice occurs when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is “a probability sufficient to undermine the confidence in the outcome.” Id. To overcome a negotiated plea agreement, the movant must demonstrate “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

III. ANALYSIS

Movant challenges her sentence on five grounds of ineffective assistance of counsel: (1) failure to ensure the Court followed the plea agreement, by not securing pre-approval from the Court or requesting a downward departure; (2) failure to investigate criminal history and seek expungement of state charges; (3) failure to meet with Movant and prepare for the presentencing interview, to review the presentencing report with Movant, and to raise objections to the report; (4) failure to prepare and adequately advocate during sentencing hearing; (5) failure to file notice of appeal and consult with...