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Grivet v. United States

United States District Court, D. Idaho

April 27, 2017

JAMES ANTHONY GRIVET, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge United States.

         INTRODUCTION

         The Court has before it a motion to dismiss filed by the Government. The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.

         LITIGATION BACKGROUND

         In his § 2255 petition, Petitioner Grivet argues that his counsel was ineffective for failing to introduce expert testimony at his sentencing concerning his mental impairments. Expert testimony, he argues, would have persuaded the Court to impose a lighter sentence. Grivet requests an evidentiary hearing to introduce such testimony.

         Grivet's underlying crime was methamphetamine distribution. At his arraignment, he was released pending trial on the condition he submit to location monitoring. While on release Grivet cut off his electronic monitoring device and sold heroin to an undercover officer. He was arrested and jailed, but just four days later, law enforcement officials intercepted several telephone calls by Grivet from the jail directing others to sell drugs and transfer money. See Government's Exhibit 1 (Dkt. No. 57-1) in U.S. v. Grivet, 1:14-cr-114-BLW. In one of those calls, Grivet spoke to another individual in coded language telling the person to “get rid” of the “black” (heroin) and “white” (methamphetamine). Id. In later phone calls, Grivet again instructed, in coded language, the person to sell the drugs and put money on his books at jail. Id. Grivet also asked the person if he was interested in “collecting” some debts for Grivet. Id.

         Grivet eventually pled guilty to one count of selling methamphetamine. Prior to sentencing, Grivet's counsel submitted documents detailing his military service and medical history regarding his mental impairments. See Exhibits (Dkt. No. 43) in U.S. v. Grivet, 1:14-cr-114-BLW. Grivet had been diagnosed with Post Traumatic Stress Disorder (PTSD) brought on by his extensive military experience and a serious head injury suffered during a motorcycle accident. The record also included a Neuropsychological Evaluation from Dr. Clay Ward, a psychologist. See Exhibit C (Dkt. No. 43-3). The report concludes, after extensive testing, that Grivet suffers from a “Mild Neurocognitive Disorder with behavioral disturbance” and that he will be prone to “impulsive behavior that will result in activities that are self-destructive.” Id.

         The Guidelines set his offense level at 34 and his criminal history category at III, establishing a range of 188 to 235 months. Grivet's original counsel sought a sentence of 120 months, but Grivet's new counsel who represented him at the sentencing hearing lowered that request to 96 months. The Court was troubled by Grivet's post-release conduct, but found that the Guideline calculation already “punished” him for that conduct by taking away 3 points for acceptance of responsibility and adding 2 points for obstruction of justice. See Transcript (Dkt. No. 65) in U.S. v. Grivet 1:14-cr-114-BLW at 40-45. That swing added some 60 months to the Guideline calculation. Id. To refuse a below-Guidelines sentence, the Court found, would be to “double punish” the defendant for this conduct, an option the Court rejected. Id. Instead, the Court dropped below the lowest Guideline range of 188 months to sentence Grivet to 144 months. Id.

         Grivet has filed a § 2255 motion arguing that his counsel was ineffective for failing to have Dr. Ward and others testify at his sentencing to explain why his PTSD and brain injury should result in a lower sentence. He asks for an evidentiary hearing to offer that testimony and have the Court reconsider its sentencing decision

         LEGAL STANDARDS

         Rule 4(b) of the Rules governing § 2255 provide the court authority to dismiss a motion “if it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.”

         The test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668 (1984). In order to establish deficient performance, a defendant must show that counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls “within the wide range of reasonable professional assistance.” Id. at 689. This is so because for the defendant, “[i]t is all too tempting . . . to second-guess counsel's assistance after conviction or adverse sentence. . . .” Id. In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Both prongs of the Strickland test must be met to demonstrate a valid claim of ineffective assistance of counsel.

         ANALYSIS

         Grivet argues first, that his counsel failed to present sufficiently the mitigating circumstances that he suffered from PTSD and a traumatic brain injury. This argument is specious as counsel did raise that issue, arguing from the detailed medical ...


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