United States District Court, D. Idaho
EDWARD J. LODGE, District Judge.
Pending before the Court is Defendant Todd Russell's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. 1 in civil case). The Court reviewed the pleadings and found there were contested matters that require an evidentiary hearing in this case. The Court issued an order for a limited evidentiary hearing in 2013. Russell requested the hearing date be moved to allow him to participate in certain programing. The Court rescheduled the hearing for May 27, 2014. At the hearing seven witnesses were called to testify. The parties were directed to file closing arguments in writing. The parties requested the due date for the arguments be extended to allow a transcript to be prepared. Closing argument briefs were filed. The Court has now reviewed the complete record and finds the § 2255 motion should be denied.
Defendant Todd Russell exercised his Constitutional right to a jury trial. At trial, the Defendant was represented by retained counsel Mr. Douglas Phelps. The jury convicted the Defendant of conspiracy to possess methamphetamine and possession of methamphetamine with intent to deliver. The Court sentenced the Defendant as a career offender to the mandatory minimum sentence of 360 months on Count 1 and 240 months to run concurrent on Count 2, 5 years supervised release on Count 1 and 3 years on Count 2 to run concurrent, $4, 000 fine and a $200 special assessment. Two co-defendants pled guilty to other charges in this case.
The Court appointed new counsel to represent Defendant on appeal as Mr. Russell was determined to be indigent. Mr. Mark Moorer was appointed to represent Russell. On appeal, the convictions and sentence were affirmed. The Ninth Circuit declined to reach Mr. Russell's claim of ineffective assistance of counsel in 2009. The Ninth Circuit noted:
Russell contends that he received ineffective assistance of counsel at trial. We decline to review this claim on direct appeal. The record is not sufficiently developed to permit review and determination of the issue, and Russell was not obviously denied his Sixth Amendment right to counsel. See United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
Memorandum Decision, Dkt. 159 in criminal case.
A timely § 2255 motion was filed in November of 2010. In 2011, Mr. Moorer was appointed to represent Mr. Russell on the § 2255 motion. Mr. Moorer was granted numerous extensions of time to file a reply brief. Tragically, Mr. Moorer passed way and was unable to file the reply brief. The Court then appointed Mr. Benjamin to represent Russell.
Defendant claims in his § 2255 motion that his trial counsel was ineffective for three reasons: 1) failing to inform him of the career offender guideline range of 360 months to life would be the sentencing range on Count 1 if he was convicted at trial; 2) failing to adequately discuss the advantages and disadvantages of the plea offers that resulted in Defendant rejecting Government's plea offer of a sentence a 236 month term of imprisonment; and 2) failing to file a motion to suppress Defendant's confession as being involuntary due to his withdrawal from Xanax.
Ineffective Assistance of Counsel Standard of Review
A petitioner claiming ineffective assistance of counsel must allege specific facts which, if proved, would demonstrate that (1) counsel's actions were "outside the wide range of professionally competent assistance, " and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Mere conclusory allegations do not prove that counsel was ineffective. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). A defendant fails to state a claim for ineffective assistance if he fails to allege facts sufficient to meet either the "performance" or "prejudice" standard, and the district court may summarily dismiss his claim.
The Supreme Court has recently held that the Sixth Amendment's right to effective assistance of counsel extends to the consideration of plea offers that are rejected. Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012). The Strickland test applies in ineffective assistance of counsel claims regarding plea negotiation. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012).
In this case, the Court determined a hearing was necessary in order to evaluate the credibility of the witnesses who had filed affidavits as to whether the Defendant was advised of the plea offer and whether he was advised he was facing a minimum of 30 years if convicted on Count 1 due to his career offender status (which was based on Defendant's prior felony conviction for a crime of violence and a prior felony drug conviction). Additionally, the issue of whether a motion to suppress should have been filed by counsel was also addressed at the evidentiary hearing. Based on the Court's evaluation of the testimony at the evidentiary hearing and the complete record, the Court will address the claims of ineffective assistance of counsel.
1. Failing to inform Defendant of the career offender guideline range of 360 months to life would be applicable if Defendant was convicted at trial and failing to discuss the plea offers with Defendant in light of the career offender status.
These are actually two different claims but are intertwined so will be discussed together by the Court. Defendant claims his attorney failed to advise him that he was looking at a minimum of 30 years imprisonment due to the career offender enhancement if he went to trial and was found guilty. Defendant testified his attorney told him he was looking at 10 to 15 years if he went to trial. Defendant claims that is why he did not accept the Government's alleged plea offer of 236 months or 20 years. Defendant ...