Westman v. United States
| Decision Date | 16 August 2021 |
| Docket Number | 1:18-cr-00150-DCN,1:20-cv-00173-DCN |
| Parties | MICHAEL DON WESTMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Idaho |
Pending before the Court in the above entitled matter is Petitioner Michael Westman's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Dkt. 1.[1] The Government filed a Response to Westman's Motion. Dkt. 3. Westman filed a reply. Dkt. 4. For the reasons set forth below, the Court DENIES the motion.
On September 25, 2018, Westman entered a plea of guilty, pursuant to a plea agreement, to one count of Unlawful Possession of a Firearm under 18 U.S.C. § 922(g)(1).[2]CR-150, Dkts. 15; 33. The Court found Westman's guideline range of 46-57 months was excessive given the offense level of seventeen, a criminal history category of five, and to account for seven months incarceration Westman previously served that he would not otherwise get credit for. CR-150, Dkt. 32, at 1. Considering the sentencing guidelines and the factors set forth under 18 USCS § 3553(a), the Court ultimately sentenced Westman to thirty-nine months incarceration and three years of supervised release on July 26, 2019. CR-150, Dkt 32, at 1-3.
On April 3, 2020, Westman timely filed his Motion to Vacate to which the Government replied on May 11, 2020.[3] Dkts. 1; 3. On May 26, 2020, Westman replied to the Government opposition. Dkt. 4.[4]
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” or (4) “that the sentence is otherwise subject to collateral attack[.]” § 2255(a).
Relief under § 2255 is afforded “[i]f the court finds that . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” § 2255(b). Furthermore, “a district court must grant a hearing to determine the validity of a petition brought under that section ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in original) (quoting § 2255). In determining whether a § 2255 motion requires a hearing, “[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.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011).
A district court may dismiss a § 2255 motion based on a facial review of the record “only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980); see also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ().
Here, Westman claims ineffective assistance of counsel via § 2255. As the United States Supreme Court has noted, “[a] court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).[5] Therefore, Westman must satisfy both prongs of “the two-part Strickland v. Washington test.” Hill v. Lockhart, 474 U.S. 52, 56-58 (1985) (citing Strickland, 466 U.S. at 687-90); see also Lee v. United States, 137 S.Ct. 1958, 1964-67 (2017). To establish ineffective assistance under that test here, Westman had to show (1) that his counsel's advice to plead guilty was not “‘within the range of competence demanded of attorneys in criminal cases, '”; and (2) “that there is 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 56-59 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)); see also United States v. Silveira, 997 F.3d 911 (9th Cir. 2021).[6]
In this case, Westman alleges three cases should have been raised by his counsel prior to signing his plea agreement: Mathis v. United States, 136 S.Ct. 2243, 2251-57 (2016); United States v. Havis, 927 F.3d 382, 383-87 (6th Cir. 2019); and United States v. Tanksley, 848 F.3d 347, 349-52 (5th Cir. 2017). Dkts. 1, at 4; 4, at 1-19. However, only Mathis is applicable in this jurisdiction as Havis and Tanksley are from outside of the Ninth Circuit and can thus only serve as persuasive authority (as opposed to Mathis, which is binding on the Court). Oddly, while arguing his counsel should have brought these cases to his attention, Westman admits his counsel found Havis “on a phone call prior to sentencing.” Dkt. 4, at 7. However, Havis would require “[filing] for a continuance” with the possibility that a continuance may result in an “unfavorable” result from a newly assigned judge compared to the current judge in this case. Dkt. 4, at 7-9. The Court frankly fails to understand this argument as forum shopping falls outside the range of professional assistance. Additionally, any purported failure to raise out of circuit cases is meritless and any “failure” to raise the Supreme Court case Mathis, with nothing more, cannot rise to the level of ineffective assistance of counsel. Indeed, Westman's claim that Mathis is applicable to his case is merely conclusory, and as such, cannot support a claim of ineffective assistance of counsel. Thus, Westman's counsel fell well within “the ‘wide range' of reasonable professional assistance.” Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 688). In conclusion, the Court DENIES Westman's ineffective assistance of counsel claim.
In addition to his claim for ineffective assistance of counsel, Westman argues that his conviction is unconstitutional because it violates the Double Jeopardy Clause of the Fifth Amendment.
As a threshold matter, this claim is procedurally barred. A § 2255 claimant procedurally defaults his claims by not raising them “on direct appeal and not showing cause and prejudice or actual innocence in response to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (). Westman did not raise this issue on direct appeal and has made no showing of “cause and prejudice” or actual innocence. He cannot make this claim now.
Furthermore, Westman loses on the merits of his claim. The Double Jeopardy Clause of the Fifth Amendment provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
In this case, Westman has failed to raise a prima facie allegation of double jeopardy. Westman was charged with Unlawful Possession of a Firearm and two Firearm Forfeiture statutes: § 922(g)(1), 18 U.S.C. § 924(d), and 28 U.S.C. § 2461(c). CR-150, Dkt. 1, at 1- 3. Westman claims these statutes overlap and violate the Double Jeopardy Clause; however, these statutes do not overlap. In fact, in United States v. Soto, the Ninth Circuit held § 922, § 924, and § 2461 were designed for different purposes: § 922 criminalizes the possession of firearms and ammunition by an unlawful user, while § 924 involves civil forfeiture of firearms and ammunition, and § 2461 involves criminal forfeiture of property. United States v. Soto, 915 F.3d 675, 678-81 (9th Cir. 2019). Even if Westman's claim of double jeopardy was not barred as conclusory and untimely, the statutes he challenges are not overlapping in purpose. Therefore, the Court will DENY Westman's double jeopardy claims.
Finally, Westman argues that his sentence was enhanced in violation of the First Step Act. As with his other claims, Westman provides little by way of evidence in support of this assertion.
A court generally may not correct or modify a prison sentence once it has been imposed, unless expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). However, Westman can request modification of his sentence under the compassionate release provision of 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018), which added a provision to allow defendants, not only the Director of the Bureau of Prisons (BOP), to file a motion for reduction of sentence after exhausting administrative remedies or waiting thirty days after the warden's receipt of a request.
Westman has yet to make any claim of compassionate release upon the Director of the BOP, and since no administrative exhaustion has occurred by Westman, the Court must deny Westman's request for modification of his sentence.[7] United States v. Eberhart, ...
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