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Gregory v. United States

United States District Court, D. Idaho

July 21, 2017

STEVEN G. GREGORY Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL, CHIEF JUDGE

         INTRODUCTION

         The 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.

         BACKGROUND

         In 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 restitution. Id.

         On 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.

         On 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).

         LEGAL STANDARD

         1. Standard for 28 U.S.C. § 2255

         Title 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 attack.”

         Rule 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 relief.”

         A court 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.

         2. Standard for Ineffective Assistance of Counsel

         A 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).

         To 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.

         To 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.

         “[A]n 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)

         ANALYSIS

         1. 2255 Petition

         Gregory 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 ...


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