United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States.
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.
§ 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.
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.
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.
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.
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
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
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.
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