Williams v. United States

— 1 — — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Damion Andre Williams, No. CV-22-02066-PHX-DLR 10 Movant/Defendant, (No. CR-21-00496-PHX-DLR) 11 v. ORDER 12 United States of America, 13 Respondent/Plaintiff. — 14 — 15 Before the Court is Movant/Defendant Damion Andre Williams’ (“Movant”) pro 16 se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“the 17 Motion”) pursuant to 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 42), United States Magistrate 18 Judge Alison S. Bachus’ Report and Recommendation (“R&R”) (CV Doc. 12), Movant’s 19 Objections to Magistrate Judge’s Report and Recommendation (CV Doc. 15), Movant’s 20 (Supplement) Objections to Magistrate Judge’s Report and Recommendation (CV Doc. 21 16) and the United States’ Response to Petitioner’s Objections to Magistrate Judge’s 22 Report and Recommendation (CV Doc. 17). 23 The Court has reviewed the Motion and the R&R de novo and considered Movant’s 24 objections. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636 (b)(1) (stating that the Court must 25 make a de novo determination of those portions of the R&R to which specific objections 26 are made). Movant has filed two sets of objections. (CV Docs. 15 & 16.) The two objections 27 are identical except the second contains exhibits, apparently intended to document 28 Movant’s mailing of his objections to the United States District Court. The Court will treat 1 the two sets of objections as one. All three of Movant’s objections involve variations of 2 claims of ineffective assistance of counsel. 3 I. BACKGROUND 4 Movant’s Motion involves two separate matters that were disposed of in one 5 sentencing hearing: CR 14-0398-1-PHX-DLR (the “2014 case”) and CR 21-00496-PHX6 DLR (the “2021 case”). In February 2015, Movant pled guilty to two felony counts in the 7 2014 case. He received a prison sentence followed by a term of supervised release. While 8 on supervised release for the 2014 case, Movant was indicted on a new charge—one felony 9 count in the 2021 case—and also charged with violating the conditions of release in his 10 2014 case. 11 In a combined change of plea hearing in the 2021 case and admit/deny hearing in 12 the 2014 case, Movant pled guilty to the new charge in the 2021 case and admitted that he 13 violated the conditions of his supervised release in the 2014 case. The plea agreement 14 addressed both cases and provided that Movant’s sentence in the 2021 case would not 15 exceed the low end of the Sentencing Guidelines range and that the sentence in the 2014 16 case would not exceed the low end of the applicable policy statement. 17 Movant confirmed with the Court, at the combined hearing before the Magistrate 18 Judge, that he understood that his sentences in each case could run consecutively. (CV 19 Doc. 5-1, Att. A at 6-8; CR21 Doc. 40 at 6-8.) Movant’s counsel informed the 20 Court that he had given Movant an estimate of what his sentence might be, but 21 emphasized that it was only an estimation and “in other words, there’s (sic) no 22 promises.” (Id. at 8-9.) The Court confirmed that it was only an “educated prediction” 23 because “certain guideline issues have to be decided and they will be decided by Judge 24 Rayes and that’s what makes it unpredictable.” (Id. at 9.) 25 Upon inquiry by the Court, Movant indicated he understood. (Id.) It was further 26 acknowledged that the sentencing judge would have to provide Movant and the 27 Government a chance to withdraw from the plea agreement if Movant were not sentenced 28 in accordance with the agreement. (Id. at 9-10.) 1 After the change of plea hearing and before sentencing, Judge Rayes entered an 2 order accepting the guilty plea. (21CR Doc. 22.) Then, at sentencing, the Court varied 3 downward below the parties’ stipulated cap of the low end of the advisory Guidelines range 4 and sentenced Movant to 48 months’ imprisonment in the 2021 case. (CV Doc. 5-1, Att. B 5 at 20.) However, as to the supervised release violations in the 2014 case, the Court’s 6 sentence exceeded the stipulated cap of 5 months (the low end of the applicable policy 7 statement range for each of the respective counts). (CV Doc. 5-1, Att. C.) Movant was 8 ordered to serve 10 months as to each of the two counts in the 2014 case, to be served 9 concurrently with each other, but consecutively to the sentence imposed in the 2021 case. 10 (Id. at 22-23.) 11 After imposing sentences, both counsel confirmed that Movant had been sentenced 12 in accordance with the plea agreement. (Id. at 24.) The Court found that Movant had 13 been sentenced pursuant to the terms of the plea agreement, reminded Movant of the 14 waiver of appeal rights in the plea agreement, and advised Movant of the time limit for 15 filing a notice of appeal. (Id.) 16 On December 1, 2021, Movant timely filed a notice of appeal in the 2014 case. 17 (14CR Doc. 299.) He did not file a notice of appeal in the 2021 case. On appeal, Movant 18 argued that the District Court had violated Rule 11 of the Federal Rules of Criminal 19 Procedure and erred by failing to impose a “revocation sentence” capped at the low end of 20 the applicable policy statement range for each of the respective revocation counts. (CV 21 Doc. 5-1, Att. C.) Thus, Movant contended his appellate waiver was invalid, his revocation 22 sentence should be vacated, and he should be re-sentenced consistent with the binding 23 terms of his plea agreement. (Id.) 24 On December 6, 2022, and while the appeal was pending, Movant filed the instant 25 Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody 26 pursuant to 28 U.S.C. § 2255 (CV Doc. 1; 21CR Doc. 42). Movant did not file a 27 motion in the 2014 case. In his Motion, Movant challenged his “total sentence of 58 28 months” for the 2021 offense and his supervised release violation. (Id.) The Government 1 filed its Limited Answer on February 13, 2023. (CV Doc. 5.) Meanwhile, in the appellate 2 matter, the parties filed a Joint Motion to Remand Case to the District Court for 3 Resentencing. (CV Doc. 5-1, Att. D.) In the Joint Motion, the parties acknowledged that 4 counsel had “mistakenly” agreed that the District Court had sentenced Movant in 5 accordance with the terms of the plea agreement and that the low end of the revocation 6 range was five months on each of the two counts. (Id. at 2-3.) The Government agreed 7 not to enforce the appellate waiver and that the matter should be remanded for 8 resentencing consistent with the plea agreement. (Id. at 3.) 9 The parties’ Joint Motion was granted by the Ninth Circuit Court of Appeals. (14CR 10 Doc. 317-1.) The District Court’s Order revoking Movant’s supervised release was 11 vacated, and the 2014 case was remanded “to the District Court for resentencing 12 consistent with the stipulation in the plea agreement as to the sentence for [Movant’s] 13 supervised release violation.” (Id.) 14 On remand from the Ninth Circuit, the District Court held a disposition hearing in 15 the 2014 case on May 1, 2023. (14CR Doc. 324.) The Court revoked Movant’s 16 supervised release and ordered Movant to serve 4 months on each count of revocation, 17 to be served consecutively to each other and consecutively to the term of imprisonment 18 imposed in the 2021 case. (14CR Doc. 325.) 19 II. OBJECTIONS TO THE R&R — 20 — Movant first objects to the R&R’s recommendation that Movant’s claim of — 21 — ineffective assistance of counsel be denied. Movant argues that the R&R did not consider — 22 — the “outside the record evidence” that supported his claim that “clearly establishes that — 23 — Counsel failed to fully explain the full extent of his sentencing exposure.” (CV Doc. 16 at — 24 — 2.) The Court reviews claims of ineffective assistance of counsel under the two-part — 25 — test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Movant — 26 — must show: (1) counsel’s performance was deficient, and (2) counsel’s deficient — 27 — performance prejudiced the defense. 466 U.S. at 687 . The Court has discretion to review — 28 — the two prongs of the Strickland test in any order and need not address both prongs if 1 Movant makes an insufficient showing in one. See Strickland, 466 U.S. at 697 . 2 Movant alleges that his attorney guaranteed him a sentence of 37 months before his 3 change of plea hearing. (CV Doc. 2, Exh. A at ¶¶ 7, 9.) However, Movant’s counsel stated 4 on the record and in Movant’s presence during the change of plea hearing that he had 5 provided Movant with his best estimate as to what the low end of the range would be (37 6 months). Counsel also expressed uncertainty as to what the ultimate cap might be. 7 (CV Doc. 5-1, Att. A at 8-9.) Counsel explicitly stated that the Guidelines calculation 8 was “a bit more complex than normal” and there were “no promises” that counsel’s 9 estimation that 37 months was the low end of the range was correct. (Id. at 9.) 10 When a court explains to a defendant the discretion the court has with respect to 11 what a sentence might be, and that explanation occurs before the guilty plea is accepted, 12 there can be no showing that a defendant “suffered prejudice from his attorney’s 13 prediction.” Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). The Magistrate 14 Judge explained the sentencing discretion the sentencing judge had. (CV Doc. 5-1, Att. A 15 at 9.) The Magistrate Judge characterized the Guidelines determination that the sentencing 16 judge would make as “unpredictable.” (Id.) After explaining that counsel’s prediction was 17 only a prediction and that the sentencing judge would make the ultimate determination 18 under the Guidelines, the Magistrate Judge asked Movant if he understood all of that. (CV 19 Doc. 5-1, Att. A at 9.) Movant responded, “Yes, Your Honor.” (Id.) “In assessing the 20 voluntariness of the plea, statements made by a criminal defendant contemporaneously 21 with his plea should be accorded great weight.” Chizen v. Hunter, 809 F.2d 560 , 562 22 (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). That is, Movant’s own 23 “solemn declarations made in open court carry a strong presumption of verity.” Id. 24 Movant’s first objection, that the R&R did not consider the “outside the record 25 evidence” that supported his claim that “clearly establishes that Counsel failed to fully 26 explain the full extent of his sentencing exposure,” is overruled. Based on the record of the 27 proceedings, Movant has failed to demonstrate deficient performance in the explanation of 28 the sentencing exposure under the agreement. Movant’s ultimate sentence, after remand, 1 was well withing the sentencing exposure under the plea agreement and because the Court 2 explained the discretion the sentencing judge has with respect to what a sentence might be, 3 pursuant to Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), Movant 4 cannot demonstrate prejudice. Any “outside the record” evidence on this issue would not 5 change this finding of the R&R. Id. 6 Movant’s second objection is directed at his counsel’s failure to recognize that the 7 Court sentenced him in the 2014 case—the release violations matter—in a manner that was 8 not consistent with the terms of the plea agreement. His attorney should have caught that 9 error and raised an objection to the improper sentence at the time of sentencing. However, 10 Movant’s appellate attorney raised the issue on appeal, the Government conceded, 11 and Williams was resentenced in accordance with the disposition agreement. (See No. 12 14-cr-398-1-PHX-DLR, Doc. 325.) Movant has not shown that “the result of the 13 proceeding would have been different” but for his counsel’s errors. Strickland, 466 U.S. 14 at 669. 15 Movant has not cited authority for his argument that because his counsel did not 16 either seek to have the plea agreement set aside or seek to ensure that he received the benefit 17 of his bargain, “a Constitutional violation [was triggered] and invalidates everything that 18 occurred from that point forward.” (CV Doc. 15 at 3.) That is not the law. Strickland sets 19 forth the necessary findings for relief when there is ineffective assistance of counsel. The 20 second prong of Strickland is just as important as the first. 466 U.S. at 687 . There must be 21 a showing that counsel’s deficient performance prejudiced the defense. Id. Movant has 22 not shown that the Strickland second prong has been met. Movant is not entitled to relief. 23 Movant’s second objection to the R&R is overruled. 24 Movant’s third and final objection to the R&R is that he should have been given an 25 evidentiary hearing to show that his counsel should have objected to the Government’s 26 sentencing position at the first disposition hearing. However, the reason for counsel’s 27 failure to object is not relevant to a claim of ineffective assistance of counsel because the 28 failure has been remedied at the re-sentencing. There is nothing an evidentiary hearing 1 || could provide to support a finding of ineffective assistance of counsel. Movant has not □□ demonstrated prejudice to his defense, so Movant’s third objection to the R&R is overruled. 3 The R&R recommends that the Motion to Vacate, Set Aside, or Correct 4|| Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 1 in CV-22- || 02066-PHX-DLR (ASB), Doc. 42 in CR-21-00496-PHX-DLR) be denied and that CV- || 22-02066-PHX-DLR (ASB) be DISMISSED. The Court accepts the Magistrate Judge’s 7 || recommended disposition within the meaning of Rule 72(b), Fed. R. Civ. P., and overrules 8 || Petitioner’s objections. See 28 U.S.C. § 636 (b)(1) (stating that the district court “may 9|| accept, reject, or modify, in whole or in part, the findings or recommendations made by the 10 || magistrate’’). 11 IT IS THEREFORE ORDERED that the Report and Recommendation of 12|| Magistrate Judge Alison S. Bacchus (CV Doc. 12) is ACCEPTED. 13 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Petitioner has not made a 15 || substantial showing of the denial of a constitutional right. 16 IT IS FURTHER ORDERED that the Clerk of the Court shall enter || judgment dismissing Petitioner’s pro se Motion to Vacate, Set Aside, or Correct Sentence 18 || Under 28 U.S.C. § 2255 (CV Doc. 1; CR21 Doc. 42) filed pursuant to 28 U.S.C. § 2255 19 || with prejudice and shall terminate this action. 20 Dated this 8th day of February, 2024. — 21 — — 22 — 23 {Z, 24 _- {UO 25 Upited States Dictric Judge — 26 — — 27 — — 28 — -7-