United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
before the Court is Defendant's Motion for Ineffective
Assistance of Counsel (Dkt. 79). Having reviewed the record,
the Court will offer the Defendant the opportunity to
withdraw the motion or consent to having it recharacterized
and heard as a claim pursuant to 28 U.S.C. § 2255.
10, 2016, the grand jury indicted Petitioner on charges of
conspiracy to distribute, distribution of, and possession
with intent to distribute methamphetamine.
Indictment, Dkt. 1. On June 13, 2016, the Court
appointed CJA Counsel William K. Fletcher as Petitioner's
attorney and Maria Escobedo as her interpreter at her
arraignment. Minute Entry, Dkt. 17.
11, 2016, Petitioner filed a notice of intent to plead guilty
to Counts One, Two, and Three of the Indictment. Notice
of Intent to Plead Guilty, Dkt. 32. On October 17, 2016,
the Court sentenced Petitioner to 210 months on each of
Counts One, Two, and Three, to be served concurrently.
Judgment, Dkt. 72. Shortly thereafter, on October
25, 2016, Petitioner filed a direct appeal to the Ninth
Circuit and requested new representation. Notice of
Appeal, Dkt. 74. On November 3, 2016, the Court relieved
William K. Fletcher as Petitioner's counsel and assigned
Matthew G. Gunn to represent Petitioner on appeal. Order
Appointing CJA Counsel, Dkt. 78. Also on November 3,
2016, while her appeal was pending, Petitioner filed the
instant Motion pro se alleging ineffective
assistance of counsel. Motion, Dkt. 79. On August
14, 2017, the Ninth Circuit affirmed Petitioner's
conviction. Memorandum of USCA, Dkt, 93.
of pro se litigants are held to less stringent
standards than a lawyer's formal pleadings. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Federal courts will
sometimes recharacterize the motion of a pro se
litigant in order to place it within a different legal
category and “avoid inappropriately stringent
application of formal labeling requirements.”
Castro v. U.S., 540 U.S. 375, 381 (2003). A court
should not recharacterize a motion, however, unless
“the pro se prisoner, with knowledge of the
potential adverse consequences of such a recharacterization,
consents” or the court has advised the prisoner of the
consequences of recharacterization, and offered her
opportunity to withdraw the motion. U.S. v. Seesing,
234 F.3d 456, 464 (9th Cir. 2000).
28 U.S.C. § 2255 provides four grounds under which a
federal court may grant relief to a federal prisoner who
challenges the imposition or length of her or her
incarceration: (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.” 28 U.S.C. §
defendants have a Sixth Amendment right to “reasonably
effective” legal assistance. Strickland v.
Washington, 466 U.S. 668, 688 (1984). The
well-established two-prong test for evaluating ineffective
assistance of counsel claims is deficient performance and
resulting prejudice. See Id. at 688, 694. In order
to establish deficient performance, a defendant must show
that counsel's performance “fell below an objective
standard of reasonableness.” Id. at 688. 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.
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). 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.
filed the instant Motion for Ineffective Counsel pro
se, in the period after judgment was entered in her
case, but while still in custody in the Ada County Jail and
during the pendency of her direct appeal. Motion,
Dkt. 79. The motion is not characterized as a motion under 28
U.S.C. § 2255, and it is not clear whether Defendant
intended to file such a motion. Before the Court's may
recharacterize the motion as a § 2555 motion for
ineffective assistance of counsel, Defendant must be offered
the opportunity to withdraw the motion or to consent to its
recharacterization. See Seesing, 234 F.3d at 464.
such, the Court hereby notifies Defendant that it intends to
recharacterize her motion as a first motion for relief under
18 U.S.C. § 2255. Thus, any subsequent motion filed by
Defendant under § 2255 shall be subject to the
restrictions on “second and successive” motions
under that statute. For this reason, the Court now offers
Defendant the opportunity to withdraw her motion, or to amend
it so that it contains all the § 2255 claims she
believes she has. Should the Defendant consent to the
consideration of her previous motion as her first motion
under § 2255, the Court shall issue a decision on that
motion forthwith. Should the Defendant choose to withdraw or
amend her motion, ...