United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
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,  the government's response, Short's
reply, and the underlying record, the Court will deny the
motion and dismiss this case.
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. 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.
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. §
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).
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.”
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.
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).
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.”
argues that his attorney was deficient during pretrial
proceedings, at sentencing, and on appeal.
Counsel's Alleged Ineffectiveness During Pretrial
The Alleged Failure to Inform Short of the Likely
Consequences of Pleading Guilty
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
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
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