Opinion
Case No. EDCV 15-00789-VAP Case No. EDCR 10-00058-VAP
09-01-2015
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. CHRISTOPHER HENRY LISTER, SR., Defendant/Petitioner.
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
[Motion filed on April 22, 2015]
I. SUMMARY OF PROCEEDINGS
On April 22, 2015, Christopher Henry Lister, Sr. ("Petitioner") filed a "Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" pursuant to 28 U.S.C. § 2255 ("Petition" or "Pet."). ([Crim.] Doc. No. 211; [Civ.] Doc. No. 1). On June 12, 2015, the United States filed an Opposition ("Opp'n") to the Petition. ([Crim.] Doc. No. 215.) Petitioner filed a Reply to the Government's Opposition on June 29, 2015. ([Crim.] Doc. No. 216; [Civ.] Doc. No. 10.) Petitioner also filed, on August 24, 2015 a "Motion for Summary Judgment," to which the Court did not require the Government to respond. For the reasons stated below, the Court DENIES the Petition.
Though the Judicial Code describes § 2255 petitions as "motions," the Court uses the terms "petition" and "petitioner" for ease of reference. See United States v. Howard, 381 F.3d 873, 877 n.4 (9th Cir. 2004).
Some of the documents referenced in this Order appear only on the docket in the underlying criminal case, EDCR 10-00058-VAP-3. Citations to [Civ.] indicate documents on the docket for the Petition. Citations to [Crim.] indicate documents on the docket for the underlying criminal case.
Petitioner's "Motion for Summary Judgment" is also DENIED.
II. BACKGROUND
On November 16, 2012, Petitioner pled guilty to Count One of the Indictment, conspiracy to distribute and dispense oxycodone, in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(C). (Minutes of Change of Plea Hearing ([Crim.] Doc. No. 135) at 1; Plea Agreement ([Crim.] Doc. No. 132) at 3).) Petitioner entered his guilty plea pursuant to a written plea agreement. (See Plea Agreement.)
Though the Plea Agreement contains an appellate waiver, claims related to ineffective assistance of counsel cannot be waived. See United States v. Pruitt, 32 F.3d 431, 432-33 ("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain."); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (finding that waivers cannot bar ineffective assistance of counsel claims associated with the negotiation of plea agreements).
On April 16, 2013, the Court sentenced Petitioner to a 168 month term of imprisonment. (J & Commitment Order ([Crim.] Doc. No. 163).) The term consisted of 156 months on Count One of the Indictment and 12 months on the enhancement under 18 U.S.C. § 3147, to be served consecutively. (Id.) Petitioner was also sentenced to a three year term of supervised release. (Id.)
Petitioner filed a notice of appeal, challenging his conviction and sentence on April 26, 2013. ([Crim.] Doc. No. 164.) The Ninth Circuit denied Petitioner's appeal on January 9, 2015, in United States v. Lister, 596 F. App'x 553 (9th Cir. 2015). ([Crim.] Doc. No. 210.) Affirming the district court, the Ninth Circuit held: (1) that Lister had not shown that the Government had committed a Brady violation; (2) that he was not entitled to "the benefits of a recent change in the Department of Justice's policy for prosecuting drug crimes"; (3) that any error in the calculation of his criminal history was harmless; and (4) that his sentence was not "substantively unreasonable." See Lister, 596 F. App'x at 553-54. The Ninth Circuit also declined to address Petitioner's contention that his trial counsel was ineffective as the circumstances of his case were not "the rare case where a counsel's effectiveness is ripe for review on direct appeal." Id. at 554.
Lister filed the instant Petition on April 22, 2015. The Petition argues that Petitioner's counsel was ineffective at various stages of the proceedings:
(1) Before trial, for failing to complete discovery on the eve of trial, and then hastily having Petitioner sign the Plea Agreement to cover-up this unpreparedness;(Pet. at 5; see generally, Reply.) According to Petitioner, his counsel's ineffectiveness resulted in an unreasonable sentence. (Id.)
(2) During Petitioner's change of plea hearing, for failing to state Petitioner's objections to the factual basis for his plea, and for not objecting when the factual basis for the plea was not read into the record; and
(3) At sentencing, (a) for failing to explain how his sentence would be calculated, (b) for failing to argue for a minor role reduction, and (c) for failing
to introduce evidence about his history and character in mitigation.
When construed liberally, the Petition makes these arguments in summary. The Reply is much more detailed, and so the Court cites to the Reply throughout this Order.
III. LEGAL STANDARD
Section 2255 authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979). If the record clearly indicates that a movant does not have a claim or that he has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record," a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, the district court must grant an evidentiary hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255)).
IV. DISCUSSION
A. Petitioner's Claims of Ineffective Assistance of Counsel Are Without Merit
To establish ineffective assistance of counsel, a petitioner must prove: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668,688, 694 (1984). The "likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011).
Criminal defendants are entitled to competent representation in plea negotiations. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) ("During plea negotiations defendants are 'entitled to the effective assistance of competent counsel.' (citation omitted).) In evaluating whether a petitioner's trial counsel was ineffective in this context, the petitioner must show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Id. at 1384-85 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985) (alteration in original)).
1. Petitioner's Statements during the Change of Plea Hearing
On November 16, 2012, a change of plea hearing was held in which Petitioner pled guilty to Count One of the Indictment. During that hearing, the following colloquy took place:
THE COURT: Mr. Lister, was your lawyer with you when you signed the written plea agreement?(See November 16, 2012 Transcript ("Nov. 16 Tr.") ([Crim.] Doc. No. 186) 5-29.)
DEFENDANT LISTER: Yes, he was, Your Honor.
THE COURT: And before you signed it did you discuss everything that was in the plea agreement with your lawyer?
DEFENDANT LISTER: Yes, Your Honor. He had me read the entire packet.
THE COURT: Did you have a -- as you read the plea agreement and discussed it with him, did you have a chance to ask him all of your questions about the plea agreement?
DEFENDANT LISTER: I certainly did, Your Honor.
THE COURT: Did Mr. Juarez answer your questions to your satisfaction?
DEFENDANT LISTER: Yes, he did.
THE COURT: Does the plea agreement cover everything you've been told about what's happening in your case and what may happen in the future?
DEFENDANT LISTER: Yes.
THE COURT: In other words, has anyone told you anything about your case or made you any promises about it other than what's in the plea agreement?
DEFENDANT LISTER: No, Your Honor.
. . .
THE COURT: Has anyone promised you anything of any kind in order to get you to plead guilty?
DEFENDANT LISTER: No, Your Honor.
THE COURT: Do you feel that you understand everything that we've discussed here today?
DEFENDANT LISTER: I do, Your Honor.
THE COURT: And do you feel that you understand the consequences to you of pleading guilty to this charge?
DEFENDANT LISTER: I do, Your Honor.
THE COURT: And do you feel that you're competent and able to make the decision to plead guilty?
DEFENDANT LISTER: Absolutely, Your Honor.
THE COURT: Is the decision to plead guilty entirely voluntary on your part?
DEFENDANT LISTER: Yes, it is.
. . .
THE COURT: All right, sir, how do you plead to Count 1 of the Indictment charging you with violation of Title 21, United States Code, Section 846; that is, conspiracy to distribute oxycodone, guilty or not guilty?
DEFENDANT LISTER: Guilty as charged.
THE COURT: Are you pleading guilty because you did what you're charged with in Count 1?
DEFENDANT LISTER: Yes, Your Honor.
. . .
[The Government read the factual basis into the record.]
THE COURT: Thank you. [¶] Mr. Lister, do you agree with the statement of facts just read into the record?
DEFENDANT LISTER: Can I ask my attorney a question?
THE COURT: Certainly.
(Counsel and the defendant confer)
DEFENDANT LISTER: Sorry, Your Honor.
THE COURT: That's all right. So do you agree with the facts just stated by counsel for the Government?
DEFENDANT LISTER: Yes, I agree that they conclude that.
THE COURT: Do you agree they can prove all those facts beyond a reasonable doubt?
DEFENDANT LISTER: Yes, Your Honor.
THE COURT: Was there anything that was stated by the attorney for the Government that you object to or disagree with?
DEFENDANT LISTER: No, Your Honor.
THE COURT: Thank you.
. . .
THE COURT: . . . Mr. Lister, do you feel that you've had enough time to discuss your case in general and your decision to plead guilty with your lawyer?
DEFENDANT LISTER: I do, Your Honor.
THE COURT: Are you satisfied that your attorney has fully considered any defenses that you might have to these charges?
DEFENDANT LISTER: I am.
THE COURT: Are you satisfied with the representation that your attorney has provided you and the advice that he's given you?
DEFENDANT LISTER: I am, Your Honor.
2. The Signing of the Plea Agreement and Counsel's Alleged Inadequate Preparation for Trial
Petitioner argues that his trial counsel was ineffective because: (1) trial counsel had Petitioner sign the Plea Agreement hastily to cover up his own unpreparedness and (2) trial counsel had not completed discovery near the time of trial and admitted as much on the record. (Reply at 5-7.) Neither of these arguments has merit.
a. The Circumstances Surrounding the Signing of the Plea Agreement
First, Petitioner alleges that trial counsel induced him to sign the Plea Agreement because counsel had an "overburdened case load." (Reply at 5.) He goes on to aver that once the Court refused to grant any further continuances, trial counsel hastily arranged a meeting at a McDonald's restaurant to discuss and sign the Plea Agreement. (Id.) According to Petitioner, "the meeting lasted all of 10 minutes, without any real explanation of the process or what to expect with a plea agreement." (Id.) Petitioner asserts that his trial counsel was eager to get him to sign the Plea Agreement to "cover-up his poor preparation for trial . . . ." (Pet. at 5.)
These contentions are belied by the record, specifically Petitioner's statements made under oath during the change of plea hearing. "[A] Petitioner's statements at the plea colloquy carry a strong presumption of truth." Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012), as amended (May 31, 2012); see also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) ("[T]he representations of the defendant [at a change of plea hearing] . . . constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity."); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) ("Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea."). Moreover, the Ninth Circuit has also agreed with the general principle that, to the extent a petitioner rests a collateral challenge on allegations that directly contradict the petitioner's statement, those arguments must fail. See Muth, 676 F.3d at 821-22 (citing cases).
Taking these principle into consideration, Petitioner's claim that his trial counsel was ineffective for failing to explain the Plea Agreement adequately must fail. Though Petitioner now protests that his counsel was ineffective for failing to give "any real explanation of the process or what to expect with the plea agreement," Petitioner stated under penalty of perjury during the plea colloquy that he was satisfied with trial counsel's representation overall and that he had had enough time to discuss his case and his decision to plead guilty with his counsel. (See Nov. 16 Tr. at 28:21-29:6.) As this allegation directly conflicts with Petitioner's statements made during the plea colloquy the Court finds that this argument fails.
b. The State of Discovery at the Pretrial Conference
Petitioner also claims that two weeks before trial his counsel admitted on the record that he had not completed discovery, further buoying his claim that his counsel was unprepared for trial and pressured Petitioner to sign the Plea Agreement. (Reply at 6.) Petitioner avers that this admission was made during the pretrial conference held on November 13, 2012. (See [Crim.] Doc. No. 133.)
During the pretrial conference, Petitioner's trial counsel requested a brief continuance of the pretrial conference in order to resolve a single outstanding discovery issue. (See November 13, 2012 Transcript ([Crim.] Doc. No. 185) at 3:18-4:13.) Counsel for Petitioner did not request a continuance of the trial. (Id. at 4:12-13.)
Petitioner's counsel explained that an outstanding discovery issue related to the inability of Government counsel to locate a Delegation of Services Agreement ("DSA") between Petitioner and a Dr. Meyers. (Id. at 3:18-4:4, 7:4-19.) Despite searching, Petitioner's counsel could not locate a DSA between Petitioner and Dr. Meyers for the period of 2008 through 2009, and wanted additional time to search. (Id. at 7:10-17.) For their part, counsel for the Government argued that a DSA from 2008 through 2009 "does not appear to be referenced in any of the discovery that either of the parties have, and to the best of the Government's knowledge has never been acknowledged to exist." (Id. at 6:19-23.) The Government reiterated that it did "not necessarily agree that what [defense counsel was] looking for exist[ed]." (Id. at 6:23-25.)
As an exhibit to his Reply, Petitioner attached a document that appears to be the missing DSA from 2008. (See Reply Ex. 1) Petitioner states that he received this document through a Freedom of Information Act request. (Reply at 4.) The existence of this document is not, by itself, grounds for granting Petitioner the relief he seeks.
First, defense counsel's statement at the pretrial conference that there was one outstanding discovery issue does not support the conclusion his representation fell below an objective standard of reasonableness. As explained by Government counsel at the pretrial conference, over 24,000 pages of discovery were produced in anticipation of trial and the Government did not acknowledge that the 2008 DSA existed. Trial counsel's inability to find this single document — and his corresponding request for a brief continuance of the pretrial conference to search for it — did not fall below an objective standard of reasonableness.
Moreover, even assuming counsel's representation did fall below an objective standard of reasonableness because of his failure to discover the 2008 DSA by the November 13, 2012 hearing, Petitioner has not shown that he was prejudiced. Petitioner pled guilty to Count One of the Indictment and admitted that he was a participant in a conspiracy to distribute oxycodone. The fact that he might have also distributed oxycodone lawfully under the DSA at the time of the conspiracy is not exculpatory.
Additionally, Petitioner was well aware of his counsel's inability to locate the 2008 DSA (and the Government's contention that it did not exist) at the time he pled guilty. Rather than insisting that his counsel obtain this document before entering his plea, he pled guilty three days later. Thus, Petitioner has not shown that he has suffered prejudice from his counsel's inability to locate the 2008 DSA. Accordingly, Petitioner has not shown that his counsel was ineffective with respect to the discovery of the 2008 DSA.
3. The Factual Basis for the Plea Agreement
Petitioner also contends he "was not aware of the nature and circumstances of the factual basis the Court applied to his guilty plea." (Reply at 3.) He faults his counsel for failing to object and allowing the Court to accept the factual basis of his plea to Count One of the Indictment. (Id. ("[T]he Court accepted the guilty plea as to the factual [basis] of count 1 of the indictment that his counsel also should have objected [to] and did not.").)
Separately, he contends that he "did not know that the Court took the plea to mean that the Defendant agreed to the indictment's description of stipulated facts nor did his counselor inform him of those stipulated facts." (Id. at 3-4.) Moreover, Petitioner maintains that "the prosecution failed to point out that the plea agreement did not spell out the factual basis [of] count 1 of the indictment to the Court . . . . The record clearly shows that the factual basis of count 1 in the indictment was NOT READ in the change of plea hearing." (Id. at 4.)
Again, these contentions are belied by the record of the change of plea hearing, including Petitioner's own statements at the hearing, as well as the text of the Plea Agreement.
First, Petitioner is incorrect that the Plea Agreement did not contain the factual basis to which he would plead guilty. Paragraph 10 of the Plea Agreement states
Defendant and the USAO agree to the statement of facts provided below. Defendant and the USAO agree that this statement of facts is sufficient to support a plea of guilty to the charge described in this agreement and to establish the Sentencing Guidelines factors set forth below but is not meant to be a complete recitation of all facts relevant to the underlying criminal conduct or all facts known to either party that relate to that conduct.(Plea Agreement ¶ 10.)
At all times relevant to this case, defendant LISTER was a Physician Assistant ("P.A.") licensed in the state of California. As such, defendant could conduct medical exams and write prescriptions if he was acting under the supervision of a licensed physician. Defendant did business in San Bernardino County as Lister's Mobile Health Services.
On June 16, 2009, a Drug Enforcement Administration ("DEA") agent, acting in an
undercover capacity, purchased a prescription for oxycodone from co-defendant Cherish Amber DICKERSON. The prescription was written by defendant. DICKERSON told the agent to give her his personal information for the prescription. The agent asked DICKERSON if it was okay to put a fake address on the prescription. DICKERSON stated that it didn't matter. DICKERSON asked the agent, "There's nothing really wrong with you, right?" The agent told DICKERSON there was nothing wrong with him. The agent gave DICKERSON the information she requested. DICKERSON then gave the agent's information to defendant, who wrote a prescription in the name given by the agent (initials B.L.) for a quantity of 60 pills, each containing 80mg of oxycodone.
Later that day, DICKERSON met the agent at a Rite Aid parking lot in Hesperia, California. DICKERSON sold the prescription to the agent for $300. The agent asked DICKERSON how many prescriptions he could obtain if he just gave her names of people to put on the prescriptions. DICKERSON replied "as many as you want." DICKERSON told the agent that if he ordered a lot of prescriptions, she could get them for
$250.00 each. DICKERSON said that when she brings the "doctor" (defendant LISTER) a lot of patients, LISTER gives her some prescriptions for free.
On June 25, 2009, the DEA agent purchased four more prescriptions from DICKERSON. DICKERSON told the agent that she was paying the doctor $350 for each prescription. DICKERSON asked the agent if he had everything written down for her (names and identifying information to fill out the prescriptions). DICKERSON told the agent to have legitimate injuries written on the paper, and to not just say "sore back." DICKERSON suggested the agent write compression fracture of the L3, L4, and LS, and to put motorcycle accident.
DICKERSON told the agent to write down fake social security numbers and to write down the physical description of the person. The agent later met DICKERSON and gave the written information and $1,400 to DICKERSON. DICKERSON then drove to defendant's business (Lister's Mobile Health Services) in Hesperia, California. DICKERSON gave the written information to defendant, who wrote four prescriptions for
oxycodone in the names provided by the UC agent (initials M.G., A.A., A.W., and R.R.). DICKERSON then left defendant's office and returned to the agent. DICKERSON gave the agent four prescriptions for a total quantity of 240, 80mg OxyContin (oxycodone) tablets.
On June 24, 2009, and July 22, 2009, defendant wrote prescriptions in co-defendant Mark Robert WILKES' name for a total quantity of 180 tablets of 80 mg oxycodone. WILKES obtained the oxycodone for the purpose of selling it. Defendant was aware that WILKES sold oxycodone and did not perform any physical examination of WILKES prior to writing the prescriptions.
On October 8, 2009, defendant sold WILKES four prescriptions for oxycodone in various names. The meeting was recorded on audio and video. WILKES paid defendant $750 for the prescriptions. Defendant discussed the fact that he would be stopping his practice soon and that there would be a shortage of prescriptions, so prices would increase. Defendant advised WILKES to "stockpile" and raise his (WILKES') prices. Defendant asked WILKES to bring him (LISTER) more business before the end of the
week. Defendant told WILKES that if WILKES came up with a list of names, he (LISTER) would put refills on them for a six-month supply. Defendant did not conduct any physical examination of WILKES nor did he make any inquiry regarding WILKES' health.
Altogether, defendant unlawfully sold to DICKERSON and WILKES several prescriptions for a total of 840 pills, each containing 80mg oxycodone, for a total quantity of 67,200 milligrams of oxycodone. In writing the prescriptions as charged in count one of the indictment, defendant was acting outside the usual course of professional practice and without a legitimate medical purpose.
Thus, the text of the Plea Agreement clearly set forth the factual basis for Petitioner's plea of guilty to Count One of the Indictment. As noted above, Petitioner stated during the change of plea hearing that he "discuss[ed] everything that was in the plea agreement with [his] lawyer," and "had a chance to ask [counsel] all of [his] questions about the plea agreement." (Nov. 16 Tr. at 5:7-14.) Moreover, he stated that he had a chance to read the Indictment with his attorney, he discussed it thoroughly with his attorney, he understood exactly what he was charged with, and was pleading guilty because he did was he was charged with in Count 1 of the indictment. (Id. at 19:6-25.)
Second, Petitioner's contention that the factual basis for his plea was not read into the record is simply false. Government counsel read the factual basis for Petitioner's plea into the record during the change of plea hearing; it mirrors the factual basis stated in the Plea Agreement, so the Court will not reproduce it here. (See id. at 20:12-24:8.) Upon Government counsel's reading of the factual basis, the Court inquired of Petitioner whether he agreed with the statement of facts, to which he responded that he "agree[d] that they conclude that," and that he agreed the Government could prove all those facts beyond a reasonable doubt. (Id. at 24:10-22.) Critically, Petitioner agreed that he did not object or disagree with anything stated by Government counsel during the reading of the factual basis. (Id. at 24:23-25:2.)
Thus, to the extent Petitioner contends that he was unaware of the factual basis for his plea, or that he had objections to the factual basis that were not raised, these contentions are contradicted by his statements on the record and the record itself. Accordingly, Petitioner is not entitled to relief on this ground.
This conclusion applies equally to Petitioner's contention that the Court's calculation of his base offense level was too high due to the "overstated number of pills." (Reply at 1, 3.) The factual basis Petitioner agreed to in the Plea Agreement stated that he unlawfully sold 840 pills. (See Plea Agreement ¶ 10.) During sentencing, the Court noted that the Probation Office calculated Petitioner's base offense level to be thirty-four, based on the allegation that Petitioner had unlawfully prescribed 1,196.4 grams of oxycodone throughout the course of the conspiracy. (See Presentence Report ([Crim.] Doc. No. 145) ¶¶ 30, 41.) This was despite the parties' agreement to a base offense level of twenty-eight, based on an agreement that Petitioner unlawfully prescribed 67.2 grams of oxycodone. (Plea Agreement ¶ 10; April 16, 2013 Transcript ("Apr. 16 Tr.") ([Crim.] Doc. No. 188) at 9:6-15.) The Court sustained Petitioner's objection to a base offense level of thirty-four, and started its analysis with the parties' agreed-to base offense level of twenty-eight. (Id. at 10:7-25.) Thus, Petitioner's sentence was based only on the number of pills he agreed that he sold in the Plea Agreement, i.e., 840.
4. Counsel's Alleged Ineffective Assistance at Sentencing
Finally, Petitioner contends his counsel was ineffective for: (1) failing to explain the determination of his offense level, (2) by failing to explain the 3553(a) factors or object when the 3553(a) factors were referred to as "other factors" during the change of plea hearing, and (3) failing to object to inadmissible information in the Presentence Report, which was used to determine his criminal history category. (Reply at 3, 7-9.) Again, none of these claims have merit.
a. Explanation of the Agreed-Upon Offense Level and the 3553(a) Factors
First, Petitioner claims that his counsel was ineffective for failing to "address or explain how the determination of [his] offense level would be used . . ." (Reply at 3.) Moreover, Petitioner also faults his counsel for failing to explain "what [the 3553(a) factors] were, how they influence the sentence, who determined [them], etc. They were not spelled out in the plea agreement, nor the PSR, nor did the prosecution or the probation officer." (Id. at 7.)
The Plea Agreement contains an explanation of the factors a court is required to consider pursuant to 28 U.S.C. § 3553(a), colloquially known as the "3553(a) factors." Paragraph 11 of the Plea Agreement states
Defendant understands that in determining defendant's sentence the Court is required to consider the factors set forth in 18 U.S.C. § 3553(a) (1)-(7), including the kinds of sentence and sentencing range established under the Sentencing Guidelines. Defendant understands that the Sentencing Guidelines are advisory only, that defendant cannot have any expectation of receiving a sentence within the Sentencing Guidelines range, and that after considering the(Plea Agreement ¶ 11.)
Sentencing Guidelines and the other § 3553(a) factors, the Court will be free to exercise its discretion to impose any sentence it finds appropriate up to the maximum set by statute for the crime of conviction.
During the plea colloquy, the Court asked Petitioner if "[he] and his lawyer discussed the Sentencing Guidelines and how they might apply in your case?" Petitioner responded in the affirmative. (Nov. 16 Tr. 16:24-17:2.) Later in the colloquy, the Court again asked Petitioner if his attorney had discussed the Sentencing Guidelines and how they might apply in his case; he again answered in the affirmative. (Id. at 18:7-12.) Petitioner's counsel also verified that he discussed the Sentencing Guidelines and the 3553(a) factors with Petitioner. (Id. at 28:9-14.) Again, the record belies Petitioner's contention that he had not been informed regarding the method by which his sentence would be calculated.
The transcript of the change of plea hearing in this section refers to the "3583(a)" factors." The Court assumes this is a typographical error.
Even assuming Petitioner's counsel's performance fell below an objective standard of reasonableness because he failed to explain the calculation of Petitioner's base offense level and the 3553(a) factors, Petitioner has shown no prejudice. Petitioner has not made any concrete objection to the Court's analysis of any of the 3553(a) factors at sentencing, nor has he made any showing that he would have rejected the Plea Agreement had he been informed more thoroughly about the consequences of his plea. See United States v. Jones, 2015 WL 2342867, at *7 (E.D. Ky. May 14, 2015) (finding no prejudice assuming petitioner's counsel did not explain the 3553(a) factors if the petitioner had no substantive objection to the court's 3553(a) analysis).
With respect to the calculation of Petitioner's criminal history, the Plea Agreement states that the parties stipulated to a base offense level of twenty-eight, with a two level enhancement for "Abuse of Position of Trust/Use of Special Skill." (Id. ¶ 12.) The Government reserved the right to argue for additional enhancements under the Sentencing Guidelines. (Id.) No agreement regarding Petitioner's criminal history or his appropriate criminal history category was made. (Id. ¶ 13.)
The Ninth Circuit found that, with respect to the calculation of Petitioner's criminal history, the Court "correctly added two criminal history points as a result" of Petitioner being on probation at the time of the offenses charged here. Lister, 596 F. App'x at 554. The appellate court further held that even if the Court had added these criminal history points in error, any error was harmless. Id. Thus, Petitioner's counsel could not have been ineffective for failing to raise a meritless objection with respect to the calculation of his criminal history. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) amended, 2005 WL 1653617 (9th Cir. July 8, 2005).
Accordingly, the Court finds that Petitioner is not entitled to relief on these grounds.
b. Petitioner's Ability to Read the Presentence Report Addendum
Petitioner also makes various claims complaining that his trial counsel was ineffective for "not [o]bjecting to the [s]entencing procedures," though the Reply is unclear as to exactly how his counsel was ineffective.
For example, Petitioner claims that he never had a chance to read the Probation Office's Addendum to the Presentence Report, dated April 6, 2013 ([Crim.] Doc. No. 160). (Reply at 8 ("Had Defendant been given the opportunity to read the addendum, he would have known that his objections had not been addressed . . . .").)
During the sentencing hearing, the following exchange took place
THE COURT: The presentence report was disclosed on January 18th and there was an addendum on April the 9th. Have you discussed the PSR with your client, Mr. Juarez?(See Apr. 16 Tr. at 3:18-4:2.) The Court agrees with the Government that a natural reading of this exchange indicates that Petitioner had an opportunity to discuss not only the Probation Office's Report but also the later-filed Addendum. (Opp'n at 24.) Petitioner could have stated at that point that he had not read the Addendum, but instead said nothing.
MR. JUAREZ: I have, Your Honor.
THE COURT: Mr. Lister, have you seen the Probation Office's report in your case?
DEFENDANT LISTER: I have, Your Honor.
THE COURT: Have you discussed it with your lawyer?
DEFENDANT LISTER: I have.
Petitioner cites United States v. Petty, 80 F.3d 1384 (9th Cir. 1996), for the proposition that his counsel was ineffective for failing to object when the record was not clear that Petitioner had read the Addendum. (Reply at 8.) Petty is distinguishable. There, the Ninth Circuit held that the trial court had violated Federal Rule of Criminal Procedure 32(i)(1)(2) because the "the colloquy at the resentencing hearing established only that Petty's counsel had received and read the two memoranda, not that Petty had." Petty, 80 F.3d at 1388. As there was no "indication that Petty had read or discussed either of the memoranda with counsel, and the timing of the receipt of [a later memorandum] suggest[ed] that he did not have the opportunity to do so," the Court vacated the sentence and remanded for resentencing. Id. at 1389; see also United States v. McMillan, 15 F. App'x 455, 455 (9th Cir. 2001) (remanding for resentencing where the Government did "not dispute that [defendant] was entitled to and did not receive a copy of the addendum . . . .").
The requirement that the court inquire whether the defendant had a chance to read and discuss a presentence report before the sentencing hearing was located in Federal Rule of Criminal Procedure 32(c)(3) at the time Petty was decided.
Here, the Court asked both Petitioner and his counsel whether they had read and discussed the Presentence Report. Petitioner agreed he had seen and discussed the Presentence Report. Even assuming Petitioner's counsel's representation fell below an objective standard of reasonableness by failing to object or make the record absolutely clear that Petitioner had read the Presentence Report and the Addendum, Petitioner has not shown prejudice.
Petitioner's only claim of prejudice in allegedly not reviewing the Addendum is that he was left unaware that his objections to the factual basis of the indictment "had not been addressed . . . ." (Reply at 8.) As discussed above, however, Petitioner agreed to the factual basis for his plea agreement during his change of plea hearing. As the Government points out, had Petitioner objected to this factual basis, he would have been in breach of the Plea Agreement. (Opp'n at 16.) By the time of sentencing, the time to object to the factual basis for a plea agreement had long since passed. Thus, to the extent Petitioner contends he was deprived of the opportunity to review the Addendum, and was correspondingly prejudiced because he was unable to object to the factual basis of his plea, that argument fails.
c. Counsel's Failure to Introduce Mitigating Information
Finally, Petitioner faults his counsel for "failing to introduce mitigating information" at his sentencing. (Reply at 9.) For example, he claims that he was "not an organizer" and therefore "credit should have been given." (Id.)
Petitioner is mistaken. The Probation Office did not recommend — and Petitioner did not receive — any enhancement for being an "organizer, leader, manager, or supervisor." (See Apr. 16 Tr. at 15:12-20.) The fact that Petitioner did not receive an aggravating role enhancement does not automatically entitle him to a decrease in the base offense level for a minor or minimal role. As explained during sentencing, the Court found that Petitioner was not equally culpable with his two co-defendants because "they couldn't have ever had so much access to this narcotic if it weren't for [Petitioner]." (Id. at 15:12-15.) Thus, Petitioner has not shown a reasonable probability that his sentence would have been different had his counsel made this argument; accordingly, there is no prejudice. See Bible v. Ryan, 571 F.3d 860, 872 (9th Cir. 2009) (in order to show that a habeas petitioner was prejudiced by counsel's failure to introduce mitigating evidence, petitioner must show a "reasonable probably that [his] sentence would have been different."); see also McDaniel v. United States, 2009 WL 1106817, at *3 (N.D. Miss. Apr. 23, 2009) (reviewing the record where petitioner argued that his counsel was ineffective for failing to argue for a minor role reduction and finding that petitioner had failed to establish a reasonable probability that his sentence would have been different had counsel made that argument).
Indeed, during the sentencing hearing the Court noted its surprise that no such enhancement was recommended, given that Petitioner was the only source of the narcotics in this case. (See Apr. 16 Tr. at 15:15-18.) --------
Additionally, Petitioner contends his counsel was ineffective for "failing to introduce" mitigation information such as his long work history, as well as other personal characteristics such as age, education level, and strong ties to the community. (Reply at 9.) Each of these mitigating factors was discussed in Petitioner's Sentencing Memorandum (see [Crim.] Doc. No. 150), and the Court discussed and considered Petitioner's history and characteristics during sentencing (see Apr. 16 Tr. at 12:13-13:2). Again, Petitioner has not shown that his sentence would have been different had those arguments been made, as his counsel submitted information with respect to those mitigating factors and the Court considered them. Thus, Petitioner has shown no prejudice.
Accordingly, as none of Petitioner's claims for relief have merit, the Court DENIES the Petition, and finds that no hearing is necessary. See 28 U.S.C. § 2255(b) (2255 motion can be denied without an evidentiary hearing where, as here, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief").
B. The Court Declines to Issue a Certificate of Appealability
"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet the "substantial showing" requirement of § 2253, a petitioner must show that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Rule 11(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
As discussed above, the Court finds that Petitioner has not made a substantial showing of any violation of his constitutional rights. Accordingly, the Court DENIES Petitioner's request for a certificate of appealability.
V. CONCLUSION
As all of Petitioner's claims are without merit, the Court DENIES the Petition.
To the extent Petitioner has requested a certificate of appealability, that request is also DENIED. Dated: September 1, 2015
/s/_________
VIRGINIA A. PHILLIPS
United States District Judge