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Larsen v. United States

United States District Court, D. Utah

June 12, 2018

BRIAN DALE LARSEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          TED STEWART UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         Petitioner was originally charged in a four-count Indictment on December 23, 2015. The Indictment charged him with possession of methamphetamine with intent to distribute, possession of heroin with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of firearms and ammunition. A Superseding Indictment was filed on February 3, 2016, which included the same charges.

         On July 21, 2016, Petitioner pleaded guilty to possession of methamphetamine with intent to distribute. That charge carried a minimum mandatory sentence of ten years, with a maximum possible penalty of up to life. In exchange for his guilty plea, the government agreed to dismiss the remaining counts and forego the filing of a sentencing enhancement under 21 U.S.C. § 851. Additionally, the government agreed to recommend a sentence within the guideline range determined by the Court. Petitioner agreed to waive certain appeal rights and also agreed to the forfeiture of specific property.

         Petitioner proceeded to sentencing on January 4, 2017. The Presentence Report (“PSR”) calculated Petitioner's guideline range as 188 to 235 months. Prior to sentencing, Petitioner's counsel filed a document entitled Position Regarding Sentencing and Motion for Downward Departure and/or Variance. In that filing, counsel requested the Court impose the mandatory minimum sentence of ten years. At sentencing, the Court declined this request and sentenced Petitioner to a low-end sentence of 188 months.

         Petitioner filed a pro se notice of appeal on January 10, 2017. The Tenth Circuit Court of Appeals appointed the Federal Public Defender to represent him on appeal. On appeal, Petitioner challenged whether the guidelines were properly calculated and whether his sentence was reasonable. The government moved to enforce the appeal waiver contained in his plea agreement. The Tenth Circuit agreed and dismissed the appeal. Petitioner timely filed the instant Motion.

         II. DISCUSSION

         Petitioner's Motion raises five claims of ineffective assistance of counsel. Petitioner argues that counsel was ineffective for: (1) failing to challenge a breach of the plea agreement; (2) coercing Petitioner into an unknowing and involuntary plea; (3) failing to seek a mental health evaluation and failing to introduce it as mitigation evidence at sentencing; (4) failing to properly challenge the imposition of a sentencing enhancement; and (5) failing to perfect the appeal. Before reaching the merits of these claims, however, the Court must address the government's contention that claims three through five are barred by the collateral appeal waiver contained in Petitioner's plea agreement.

         A. COLLATERAL APPEAL WAIVER

         As part of his plea agreement, Petitioner agreed to waive his ability to bring a collateral attack as follows:

I also knowingly, voluntarily, and expressly waive my right to challenge my sentence, and the manner in which the sentence is determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255, except on the issue of ineffective assistance of counsel.[1]

         The government argues that this wavier bars Petitioner's third, fourth, and fifth claims. The Court disagrees.

         The Tenth Circuit has established a three-part test based upon contract principles to interpret appeal waivers.[2] The Court is to consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”[3]

         “In determining the scope of waiver, we apply principles of contract law and examine the plain language of the plea agreement.”[4] However, the Court “strictly construe[s] the scope of the waiver and interpret[s] any ambiguities against the government and in favor of [Petitioner's] collateral attack rights.”[5]

         The government argues that the collateral appeal waiver here limits Petitioner's ability to bring ineffective assistance of counsel claims to only those claims involving challenges to the validity of the plea or the waiver. Because Petitioner's third, fourth, and fifth claims do not involve challenges to the validity of the plea or waiver, the government argues they are barred by the wavier. However, the language of the agreement is not as limiting as the government would suggest. The plea agreement specifically allows Petitioner to bring § 2255 claims for ineffective assistance of counsel. There is no language restricting the types of ineffective assistance claims Petitioner may bring. While the plea agreement could have limited Petitioner's ability to bring ineffective assistance claims relating only to the validity of the plea or waiver, [6] it did not do so. Because Petitioner only asserts ineffective assistance claims and those claims are not covered by the collateral appeal wavier, the Court finds that none of Petitioner's claims are barred.

         B. INEFFECTIVE ASSISTANCE OF COUNSEL

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[7] To establish prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[8]

         A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.[9] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[10] Finally, “[t]here is a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[11]

         1. Breach of the Plea Agreement

         Petitioner first argues that his counsel was ineffective for failing to challenge a breach of the plea agreement. Petitioner states that his counsel told him that the plea offer from the government was for 144 months on Count One and there would be no enhancements. However, Petitioner received a sentence of 188 months. Based upon this, Petitioner asserts either: (1) the government breached the plea agreement; or (2) such an agreement never existed and his attorney misled him.

         “In interpreting a plea agreement, we rely on general principles of contract law.”[12] To determine whether a breach has occurred, the Court must “look to the express language in the agreement to identify both the nature of the government's promise and the defendant's reasonable understanding of this promise at the time of the entry of the guilty plea.”[13]

         Turning first to the express language of the agreement, there is no reference to an agreement that Petitioner would receive or the government would recommend a sentence of 144 months. The agreement does state that, in exchange for Petitioner pleading guilty to Count One, the government agreed to dismiss the remaining counts. The government also agreed to forego filing an enhancement under 21 U.S.C. § 851. However, the government did not agree to a sentence of 144 months. Rather, the government agreed “to recommend at sentencing that [Petitioner] be sentenced to a term of incarceration within the Sentencing Guideline range determined by the Court.”[14]

         Petitioner's understanding of the plea agreement can be found in the plea agreement and his statements at the change of plea hearing. The plea agreement informed Petitioner that the maximum possible penalty was a term of imprisonment of up to life and a minimum mandatory sentence of ten years. Petitioner acknowledged that “the final calculation of my sentence by the Court may differ from any calculation the United States, my attorney, or I may have made, and I will not be able to withdraw my plea if this occurs.”[15] Petitioner further stated:

This Statement in Advance contains all terms of the agreements between me and the government; if there are exceptions, the Court will be specifically advised, on the record, at the time of my guilty plea of the additional terms. I understand the government and I cannot have terms of this plea agreement[] that are not disclosed to the Court.
No one has made threats, promises, or representations to me that have caused me to plead guilty, other than the provisions set forth in this agreement.
Neither my attorney nor the government has promised me that I would receive probation or any other form of leniency because of my plea. ****
My decision to enter this plea was made after full and careful thought; with the advice of counsel; and with a full understanding of my rights, the facts and circumstances of the case and the consequences of the plea.[16]

         At the change of plea hearing, Petitioner confirmed that he read “each and every sentence of [the plea] agreement” and had a sufficient opportunity to review it with his attorney.[17] Petitioner was asked whether there “[w]ere any promises made to you that were not put in the written Plea Agreement.”[18] Petitioner stated, “No.”[19] When asked whether anyone had threatened or coerced him into pleading guilty, Petitioner similarly stated, “No.”[20] The maximum possible penalties were explained to Petitioner. Petitioner was informed that the Court would calculate and determine his sentence under the Sentencing Guidelines and federal law. Petitioner was also informed “that the sentencing judge's calculations might differ from [his] attorney's or the prosecutor's” but, even if this was the case, he would not be allowed to withdraw his plea.[21] After being given an opportunity to ask his attorney any questions, Petitioner pleaded guilty.

         Based upon this evidence, the Court concludes that counsel was not ineffective in failing to object to a breach of the plea agreement because there was no such breach. The express language of the plea agreement contains no agreement for the government to recommend or the Court impose a sentence of 144 months. Further, Petitioner stated, both in the plea agreement and under oath in open court, that no other promises were made to him. Petitioner's conclusory statement that his counsel informed him that the deal was for 144 months does not overcome this evidence. “Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal . . . .”[22] The “truth and accuracy” of a defendant's statements during a plea hearing “should be regarded as conclusive in the ...


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