Opinion
CV 23-08536-PCT-DWL (ESW) CR 20-08085-PCT-DWL
07-02-2024
United States of America, Plaintiff/Respondent, v. Oliver Lee Hurley, Defendant/Movant.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Eileen S. Willett United States Magistrate Judge
Pending before the Court is Oliver Lee Hurley's “Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” filed pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”) (Doc. 1).For the reasons explained herein, it is recommended that the Court deny relief without an evidentiary hearing. See Dukes v. United States, 492 F.2d 1187, 1188 (9th Cir. 1974) (“The record shows on its face that the [Section 2255] petitioner was not entitled to relief, and an evidentiary hearing was not required.”).
Citations to “Doc.” are to the docket in CV 23-08536-PCT-DWL (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR 20-08085-PCT-DWL.
I. BACKGROUND
On January 4, 2022, Movant signed a plea agreement in which he agreed to plead guilty to the crime of Sexual Abuse of a Minor, in violation of 18 U.S.C. §§ 2243(a) and 1153. (CR Doc. 140). The Court accepted Movant's guilty plea and the plea agreement. On April 5, 2022, the Court sentenced Movant to 156 months in prison, followed by a lifetime term of supervised release. (CR Doc. 141, as amended by CR Doc. 174). Movant filed an appeal. In May 2023, the Ninth Circuit Court of Appeals granted the parties' joint motion to remand and instructed the Court to modify Special Conditions 1 and 4 of supervised release in a matter consistent with United States v. Nishida, 53 F.4th 1144, 1141-55 (9th Cir. 2022), an opinion issued after Movant's sentencing hearing. (CR Doc. 169).
On August 16, 2023, Movant timely filed the § 2255 Motion (Doc. 1). In accordance with the Court's Screening Order (Doc. 5), the Government filed a Response (Doc. 29). Movant filed a Reply (Doc. 32), followed by two Supplemental Replies (Docs. 34, 35).
II. DISCUSSION
A. Enforceability of a Plea Agreement's Waiver Provision
“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, when a defendant has solemnly admitted in open court that he is guilty of a charged offense, “he may not thereafter raise independent claims that occurred prior to the entry of the guilty plea.” Id. “A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.” United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); see also Tollett, 411 U.S. at 267.
Additionally, it is a “fundamental rule that plea agreements are contractual in nature and are measured by contract law standards.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007). The plain language of a plea agreement generally will be enforced if the agreement is clear and unambiguous. Id. This includes a plea agreement's provision whereby a defendant waives the right to challenge his or her conviction and sentence through appeal or a collateral proceeding, such as a § 2255 proceeding. “A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005) (quoting Jeronimo, 398 F.3d at 1153). The Ninth Circuit “will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because “[t]he whole point of a waiver . . . is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462-63 (9th Cir. 2016)
Notwithstanding the above, a defendant may bring a claim alleging that a waiver or plea agreement was involuntary or that the ineffective assistance of counsel rendered the waiver or plea agreement involuntary. See Davies v. Benov, 856 F.3d 1243, 1247 n.2 (9th Cir. 2017) (“Claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary, however, may not be waived.”); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to Section 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver). The Ninth Circuit has explained that because “it is difficult to probe the highly subjective state of mind of a criminal defendant, the best evidence of his understanding when pleading guilty is found in the record of the Rule 11 colloquy.” United States v. Jimenez-Dominguez, 296 F.3d 863, 869 (9th Cir. 2002); see also Jeronimo, 398 F.3d at 1153-55 (finding a waiver of a direct appeal knowing and voluntary based on the plea agreement and the change of plea proceeding).
B. Movant's Waiver of Collateral Review
The plea agreement's “Waiver of Defenses and Appeal Rights” provision (the “Waiver Provision”) states that:
The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2)
any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under Title 18, United States Code, Section 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of “prosecutorial misconduct” (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).(CR Doc. 140 at 7) (emphasis added). The plea agreement also provides that Movant understood and agreed to the agreement's terms and conditions, entered into the plea voluntarily, and that Movant was satisfied with his counsel's representation. (Id. at 9-10).
On January 4, 2022, the Court held a change of plea hearing. (CR Docs. 119, 157). The transcript of the January 4, 2022 change of plea hearing demonstrates that the Court completed the plea colloquy with Movant as required by Federal Rule of Civil Procedure 11. (CR Doc. 157). Movant stated under oath that he understood the terms of the plea agreement, that no one had forced or threatened him to enter the plea, and that apart from the promises in the plea agreement itself, no other promises had been made to induce him to plead guilty. (Id. at 6-18). The Court also specifically addressed the Waiver Provision:
THE COURT: I next want to ask you a few questions about a different part of your plea agreement.
In section 6, it's entitled Waiver of Defenses and Appeal Rights. And what that, essentially, means is that if your plea is accepted and I impose a sentence permitted by the terms of your plea agreement, you will not be permitted to withdraw from your plea or challenge your judgment and sentence on appeal or bring a collateral proceeding.
Do you understand that?(Id. at 11). Movant answered “Yes, Your Honor.” (Id. at 12). The record reflects that Movant's waiver of his right to collaterally attack his conviction and sentence via a § 2255 motion was knowing, intelligent, and voluntary. (Id. at 18).
C. Ground One is Foreclosed by the Waiver Provision
In February 2021, Movant's trial counsel requested that the Court grant Movant permission to have access to a laptop while detained for the purpose of reviewing discovery. (CR Doc. 45). After the Court granted the request, trial counsel purchased a laptop for Movant and loaded the discovery on an external hard drive. (CR Doc. 29-1 at ¶ 8). In Ground One, Movant alleges that there was a “constitutional rights protection violation” based on a “technicality” when corrections facility staff allegedly tampered with the laptop that his counsel had provided to him. (Doc. 1 at 15).
The undersigned concurs with the Government that the claim in Ground One is foreclosed by the Waiver Provision in Movant's plea agreement. See United States v. Broce, 488 U.S. 563, 569 (1989) (“[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.”); see also United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (stating that “it is consistent with Supreme Court precedent to enforce a waiver of § 2255 rights expressly contained in a plea agreement when the collateral attack does not challenge counsel's representation in negotiating or entering the plea or the waiver”); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (joining the Second, Fifth, Sixth, Seventh, and Tenth Circuits in holding that “a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing.”); United States v. Carrana, 2010 WL 4809320, at *2 (D. Ariz. Nov. 19, 2010) (citing to the holdings in Williams and Cockerham regarding waivers of collateral attacks).
As Ground One is barred by the Waiver Provision, it is recommended that the Court dismiss Ground One with prejudice.
D. The Ineffective Assistance of Counsel Claims in Ground Two are Meritless
In Ground Two, Movant asserts two claims of ineffective assistance of counsel. First, Movant contends that his trial counsel was ineffective for failing to raise the purported laptop tampering issue with the Court. (Doc. 1 at 16). Second, Movant alleges that his trial counsel was ineffective by making promises to him regarding the sentence he would receive and the length of his supervised release term.(Id.). The Government does not assert that Ground Two is foreclosed by the Waiver Provision of Movant's plea agreement. (Doc. 29 at 11).
In his Supplemental Reply filed on February 28, 2024 (Doc. 32), Movant appears to suggest that he is challenging his trial counsel's performance on additional grounds not alleged in his § 2255 Motion. For instance, Movant states that it was his trial counsel's “job [ ] to attack the facts” and trial counsel “did not contend the perception of both incident [sic] in this case. He could've meticulously by [sic] carefully build the fabric of detail upon which to base as to both incidents 1) for the FBI agent Kings' coerced the confession 2) for the laptop. Which, of course, were factual matters that was ignored by” trial counsel. (Id. at 2). However, it is improper to raise new claims for the first time in a reply brief. See, e.g., Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in [habeas] petitioner's reply brief are deemed waived.”).
1. Challenging a Guilty Plea Based on an Ineffective Assistance of Counsel Claim
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the U.S. Supreme Court decided that a defendant arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the defendant. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
The Strickland test applies to challenges to guilty pleas and plea agreements that are based on ineffective assistance claims. Jeronimo, 398 F.3d at 1155. To establish the test's performance prong in that context, a defendant must establish that his or her counsel's advice regarding the guilty plea was outside “the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). Regarding the prejudice prong, a defendant must show 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.” Washington, 422 F.3d at 873 (quoting Hill, 474 U.S. at 58-59). The assessment of prejudice also depends on whether going to trial would have given the defendant a reasonable chance of obtaining a more favorable result. See Hill, 474 U.S. at 59; United States v. Astorga, 457 Fed.Appx. 698, 700 (9th Cir. 2011) (finding no prejudice where the defendant pled guilty and received a sentence of 70 months' imprisonment when the defendant faced a sentence of 120 months if he had proceeded to trial where he was likely to be convicted).
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
2. Analysis of Ground Two
i. Alleged Ineffective Assistance with Respect to Purported Laptop Tampering
Movant asserts that in April 2021, he asked trial counsel “if the incident with the laptop should be addressed to the court,” but counsel said “no.” (Doc. 1 at 16). In his Declaration, trial counsel states:
8. . . . I recall that Mr. Hurley initially had some trouble accessing the discovery because he did not know how to operate the computer. I recall Mr. Hurley telling me on at least one occasion he had accessed at least some portion of the discovery. Mr. Hurley later informed me that the discovery on the hard drive was empty or had been erased. I do not recall the specifics of what happened, but I did send Mr. Hurley a second copy of the discovery on another external hard drive, both of which were delivered in August or September 2021.
9. Mr. Hurley later said that the discovery had again been erased. To avoid delays that could be occasioned by engaging with CCA staff to attempt to address whether and how such discovery had been erased, I stopped relying on Mr. Hurley's laptop access at some point and resumed discovery review visits in which I, an investigator, or both met with him to allow him a chance to review the discovery he wished to review.(Doc. 29-1 at ¶¶ 8-9). Trial counsel's Declaration details his proactive steps to provide Movant the opportunity for discovery review. When Movant reported issues with the laptop and purportedly erased hard drives, counsel resumed in-person discovery review sessions. Given trial counsel's efforts to ensure that Movant had access to discovery, the undersigned finds that counsel's decision not to raise the alleged laptop tampering with the Court was objectively reasonable. Movant also has failed to show how he was prejudiced by trial counsel's decision not to raise the purported laptop issue with the Court. Having failed both prongs of the Strickland test, the undersigned recommends that the Court deny Movant's first ineffective assistance of counsel claim in Ground Two.
ii. Alleged Ineffective Assistance with Respect to Expected Sentence
In support of his second ineffective assistance of counsel claim, Movant asserts that his “attorney told [him] that [he] will be let off life probation after 5 calendar years” and that his attorney would get him “10 calendar years, not 13 years[.]” (Doc. 1 at 16). Movant's allegations regarding sentencing promises are belied by the record. The plea agreement signed by Movant states:
Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and the defendant stipulate that the defendant shall be sentenced to a total term of imprisonment (for the lesser-included of Count 1 and the supervised release violation) of no less than 10 years and no more than 13 years, followed by a lifetime term of supervised release.(CR Doc. 140 at 3) (emphasis added). At the beginning of the change of plea hearing, and in Movant's presence, the Court asked Movant's trial counsel (Taylor Fox) to “explain how, when, and where [he] discussed the plea agreement” with Movant. (CR Doc. 157 at 4). Trial counsel responded:
Judge, the current version you have in front of you is a revision of an earlier version that had a higher sentencing range. I explained that earlier version to Mr. Hurley in person last month.
And then, in subsequent conversations, I explained to him the revisions that the government recently agreed to make, particularly, a reduction from a 10 to 15-year prison term, to a 10 to 13-year prison term. All other -- as well as a reduction from the previous plea agreement that required Mr. Hurley to admit to a grade A violation, to the present version which requires Mr. Hurley -- in which Mr. Hurley has agreed to admit to a grade C violation. All other terms were identical and were explained to him in person.(Id.). The Court asked Movant whether he had the opportunity to discuss the plea agreement with counsel before signing it. (Id. at 5). Movant answered: “Yes, sir, I have through the phone today and in person.” (Id.).
During the plea colloquy, the Court advised Movant of the maximum possible punishment that could be imposed and specifically addressed the plea agreement's sentencing stipulation:
THE COURT: All right. I want to make sure you understand the maximum possible punishment that could be imposed for these matters. As for the crime of Sexual Abuse of a Minor, that is punishable by a maximum fine of $250,000, a maximum term of imprisonment of 15 years, or both, and a term of supervised release of no less than five years and up to life. Do you understand all those maximums?
THE DEFENDANT: Yes, Your Honor.(CR Doc. 157 at 8) (emphasis added).
THE COURT: One of [the agreements in the plea agreement] is paragraph 3 B. It states that the United States and the defendant stipulate that you should be sentenced to a total term of imprisonment for the lesser included of count 1 and the supervised release violation, of no less than 10 years and no
more than 13 years, followed by a lifetime term of supervised release. Do you understand that?
THE DEFENDANT: Yes, Your Honor.(Id. at 11) (emphasis added). The Court also asked Movant whether any promises, other than the promises contained in the plea agreement, had been made to induce his plea, to which Movant answered “No, Your Honor.” (Id. at 7). “Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Finally, it is noted that trial counsel states in his Declaration that:
At no time did I make any promises to Mr. Hurley about what sentence he would receive. I did not tell Mr. Hurley that he would get off of lifetime supervised release after five years, and I did not tell Mr. Hurley that he would get 10 calendar years in prison instead of 13.(CR Doc. 29-1 at ¶ 10). Movant's self-serving assertions regarding his expected sentence are not credible and are insufficient to warrant relief. See, e.g., Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (ineffective assistance of counsel claim denied where, aside from his self-serving statement, which was contrary to other evidence in the record, there was no evidence to support his claim); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (noting that there was no evidence in the record to support petitioner's ineffective assistance of counsel claim, “other than from Dows's self-serving affidavit”); Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (defendant's self-serving statement, under oath, that his trial counsel refused to let him testify insufficient, without more, to support his claim of a denial of his right to testify). It is recommended that the Court deny Ground Two in its entirety.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Ground One of the § 2255 Motion (Doc. 1) be DISMISSED WITH PREJUDICE and Ground Two be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).