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Short v. United States

United States District Court, D. Idaho

August 14, 2018

RAY CARL SHORT, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge

         INTRODUCTION

         Before the Court is Movant Ray Carl Short's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Dkt. 1). Having reviewed the motion, the supporting memorandum, [1] the government's response, Short's reply, and the underlying record, the Court will deny the motion and dismiss this case.

         BACKGROUND

         In July 2015, this Court sentenced Short to 15 years' imprisonment after he pleaded guilty to attempted sexual exploitation of a minor child. See July 16, 2015 Judgment, Crim. Dkt. 53, at 1.[2] Short appealed, challenging the constitutionality of his mandatory minimum sentence of 15 years. See July 28, 2015 Notice of Appeal, Crim. Dkt. 55. On August 2, 2016, the Ninth Circuit affirmed, concluding that Short's sentence did not violate the Eighth Amendment. See Aug. 2, 2016 Mem. Disposition, Crim. Dkt. 68. On October 30, 2017, Short filed the pending § 2255 motion. He claims ineffective assistance of counsel.

         STANDARD OF LAW

         Title 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 his 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. § 2255(a).

         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 motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” “Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).

         If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the government “to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.”

         The Court may dismiss a § 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 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.

         If the Court does not dismiss the proceeding, the Court then determines under Rule 8 whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

         ANALYSIS

         To prevail on a claim of ineffective assistance of counsel, Short must demonstrate (1) that his attorney's representation “fell below an objective standard of reasonableness” and (2) that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 688 (1984). Regarding the first part of this test, courts apply a “strong presumption” that counsel's representation was within the “wide range” of reasonable professional assistance. Harrington v. Richter, 562 U.S. 86, 104 (2011). The challenger's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id.

         Short argues that his attorney was deficient during pretrial proceedings, at sentencing, and on appeal.

         A. Counsel's Alleged Ineffectiveness During Pretrial Proceedings

         1. The Alleged Failure to Inform Short of the Likely Consequences of Pleading Guilty

         Short repeatedly argues that during pretrial proceedings, his counsel coerced him into pleading guilty, promised that he would receive a three- to five-year sentence, and told him that the prosecutor planned to “sentence on the lesser crime of possession and not for manufacturing or distribution of porn, which could well be time served and some years of probation.'” Am. Motion, Dkt. 12, at 17-18.

         The problem with this argument begins with the plea agreement. That agreement states that Short is pleading guilty to a production offense (not a possession offense), and further states that at the time of sentencing, the government would recommend a sentence within the Sentencing Guideline range, “but not less than the statutory mandatory minimum sentence required by 18 U.S.C. § 2251(e).Plea Agreement, Dkt. 10, at 2 (emphasis added). The mandatory minimum sentence under 18 U.S.C. § 2251(e) is 15 years.

         Further, during the plea hearing, the Court went over each element of the offense with Short and verified that he understood the offense charged. And before accepting his plea, the Court informed Short that he was pleading guilty to a charge that carried a statutory mandatory minimum of 15 years' imprisonment. During the hearing, Short said he understood this, though he had “thought it was lower.” Transcript, Plea Hearing, Crim. Dkt. 64, at 17:24-25. At that point, the Court clarified that the ...


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