United States District Court, D. Idaho
STEVEN G. GREGORY Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF JUDGE
Court has before it Petitioner Steven G. Gregory's Motion
to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255, Civ. Dkt. 1, to which the government has
filed a response, Civ. Dkt. 13. Gregory also filed a Motion
for Relief pursuant to Federal Rule of Civil Procedure
60(b)(4). Crim. Dkt. 42. Having reviewed the briefing and the
record in this action, the Court enters the following Order
denying both motions.
2010, Steven G. Gregory filed for bankruptcy.
Petition ¶ I, Dkt. 1. While navigating that
process, Gregory attempted to conceal around $330, 000 in
personal funds from the bankruptcy court. Response
at 4, Civ. Dkt. 13. During that time, Gregory claims that he
was under the influence of the pain medications that he was
taking for a back injury he had sustained in a car accident.
Petition ¶ 18, Civ. Dkt. 1. The government
became aware of Gregory's financial misconduct and began
investigating. Response at 4, Civ. Dkt. 13. When it
became clear that criminal charges would be filed against
Gregory, a federal defender, Thomas Monaghan, was appointed
to represent him. Id. Gregory ultimately pled guilty
to bankruptcy fraud under 18 U.S.C. § 152.
Petition ¶ 1, Civ. Dkt. 1. He was sentenced to
30 months of incarceration and ordered to pay $165, 343.29 in
January 20, 2015, Gregory filed a motion under § 2255
claiming that his plea and sentence resulted from government
actions that violated his constitutional rights.
Petition, Civ. Dkt. 1. He claims, among other
things, a violation of his right to the substantive due
process of law and his right to the assistance of counsel.
Id. at ¶ I-VI. This Court stayed the Motion
until March 21, 2016, pending Gregory's direct appeal to
the Ninth Circuit, which was denied. The Government
thereafter filed a response to the defendant's §
2255 motion. Civ. Dkt. 13. Gregory's criminal defense
counsel, Thomas Monaghan, filed an affidavit on June 20, 2016
regarding the allegations in the petition. Civ. Dkt. 14-1.
Gregory also filed a motion under Rule 60 of the Federal
Rules of Civil Procedure. Crim. Dkt. 42.
April 11, 2017, Gregory was released from custody and is now
serving a three-year term of supervised release. However,
this motion is not moot because Gregory may utilize a §
2255 motion to challenge the length of his supervised
release. See generally Mujahid v. Daniels, 413 F.3d
991 (9th Cir. 2005).
Standard for 28 U.S.C. § 2255
28 U.S.C. § 2255 provides four grounds on which a
federal judge may grant relief to a federal prisoner who
challenges the imposition or length of his or her custody:
(1) “that the sentence was imposed in violation of the
Constitution or laws of the United States”; (2)
“that the court was without jurisdiction to impose such
sentence”; (3) “that the sentence was in excess
of the maximum authorized by law”; and (4) that the
sentence is otherwise “subject to collateral
4(b) of the Rules Governing Section 2255 Proceedings provides
that a federal district court judge may summarily dismiss a
§ 2255 motion “[i]f it plainly appears from the
face of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
need not hold an evidentiary hearing in a § 2255 case
“when the issue of the prisoner's credibility can
be conclusively decided on the basis of documentary testimony
and evidence in the record.” Frazer v. United
States, 18 F.3d 778, 781 (9th Cir. 1994). The Court may
dismiss the § 2255 motion at other stages of the
proceeding such as pursuant to a motion by respondent, after
consideration of the answer and motion, or after
consideration of the pleadings and an expanded record.
See Advisory Committee Notes following Rule 8 of the
Rules Governing Section 2254, incorporated by reference into
the Advisory Committee Notes following Rule 8 of the Rules
Governing Section 2255. If the Court does not dismiss the
proceeding, the Court then proceeds to a determination under
Rule 8 of whether an evidentiary hearing is required.
Standard for Ineffective Assistance of Counsel
defendant is entitled to effective assistance of counsel at
all “critical stages” of the criminal process,
including trial, sentencing, and direct appeal. United
States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir.
2003). To challenge a sentence on grounds of ineffective
assistance of counsel, a petitioner must show that: (1)
counsel's performance was deficient, and (2) the
deficiency prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668 (1984). Mere conclusory
allegations are insufficient to state a claim of ineffective
assistance of counsel. See Shah v. United States,
878 F.2d 1156, 1161 (9th Cir. 1989).
establish deficient performance, a petitioner must show that
counsel's actions “fell below an objective standard
of reasonableness.” Strickland, 466 U.S. at
688. This may be shown where “counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result” or “counsel made errors so serious that
counsel was not functioning as ‘counsel' guaranteed
the defendant by the Sixth Amendment.” Id. at
686-87. 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.
establish prejudice, a petitioner 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.
This standard is “highly demanding.”
Kimmelman v. Morrision, 477 U.S. 365, 381-82 (1986).
In assessing whether the result would have been different,
the Court should consider “the totality of the evidence
before the judge or jury.” Strickland, 466
U.S. at 695. Both prongs of the Strickland test must
be met “before it can be said that a conviction (or
sentence) ‘resulted from a breakdown in the adversary
process that render[ed] the result [of the proceeding]
unreliable' and thus in violation of the Sixth
Amendment.” United States v. Thomas, 417 F.3d
1053, 1056 (9th Cir. 2005) (quoting Strickland, 466
U.S. at 687) (alterations in original). A court may consider
the performance and prejudice components of the
Strickland test in either order because both must be
met. See Strickland, 466 U.S. at 697.
intelligent assessment of the relative advantages of pleading
guilty is frequently impossible without the assistance of an
attorney. Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.
1986). Because of this, counsel has a duty to supply a
defendant with adequate and accurate information.
Id. While an “inaccurate prediction …
would not constitute ineffective assistance, the gross
mischaracterization of the likely outcome, … combined
with the erroneous advice on the possible effects of going to
trial, falls below the level of competence required of
defense attorneys.” Id. (Citations omitted)
claims that (A) his rights were violated because the
Pre-Sentencing Report (PSR) inaccurately stated that $165,
343.29 was still missing from the total amount ($330, 000) he
concealed during the bankruptcy proceedings; (B) his rights
were violated because the government did not file charges
within 180 days of knowing that a crime had been committed,
and because his counsel did not move to have the charges
dismissed based on this violation of the “180-Day Rule,
” (C) his rights were violated in a number of ways
during the bankruptcy proceedings, and (D) he did not have
the effective assistance of counsel ...