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United States v. Chaves

United States District Court, D. Hawaii

September 27, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
NATALIE CHAVES, Defendant/Petitioner. Cr. No. 14-00579 JMS (03)

         ORDER: (1) DENYING IN PART DEFENDANT/PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255, DOC. NO. 143; AND (2) DENYING A CERTIFICATE OF APPEALABILITY AS TO CERTAIN CLAIMS

          J. Michael Seabright, Chief United States District Judge.

         I. INTRODUCTION

         On September 12, 2014, Defendant/Petitioner Natalie Chaves (“Chaves”) pled guilty to one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(A). On March 6, 2015, the court sentenced Chaves to a term of 120 months imprisonment, five years of supervised release, and a special assessment of $100. Currently before the court is Chaves' Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (“§ 2255 Motion”). Doc. No. 143.[1]

         Chaves' § 2255 Motion challenges her conviction and sentence based on ineffective assistance of counsel. Chaves claims that counsel: (1) grossly misrepresented Chaves' sentencing exposure; (2) failed to explain the elements of the charge against her; (3) failed to investigate and therefore appreciate that Chaves was actually innocent and that the Government's evidence did not support the charged crime; (4) failed to explain the nature and ramifications of the waiver of her right to appeal; and (5) failed to file an appeal.

         For the reasons discussed below, the § 2255 Motion is DENIED as to grounds one through four. As to the fifth ground, the court directs the United States to inform the court by October 10, 2016 if (1) it seeks an evidentiary hearing, or (2) it elects not to oppose the § 2255 Motion and instead permit an appeal. See United States v. Sandoval Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005).

         II. BACKGROUND

         Chaves was arrested on May 27, 2014, along with four others following a controlled-delivery operation by the Drug Enforcement Administration (“DEA”) and the Hawaii County Police Department (“HCPD”). Doc. No. 1, Compl. at 3-5. On May 29, 2014, attorney Marcus Sierra (“Sierra”) was appointed to represent Chaves. Doc. No. 15. On June 5, 2014, Chaves was indicted on one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine (Count 1), and one count of attempted possession with intent to distribute 500 grams or more of methamphetamine (Count 2). Doc. No. 17, Indictment at 1-3. On August 26, 2014, the Government filed a special information as to a prior drug conviction of Chaves, pursuant to 21 U.S.C. § 851. Doc. No. 60 at 2 (referencing a 2007 Hawaii state-court conviction for promotion of a dangerous drug in the third degree). Sierra withdrew from representing Chaves on September 3, 2014, and attorney Lynn Panagakos (“Panagakos”) was then appointed as Chaves' counsel. Doc. Nos. 68, 73.

         On September 12, 2014, Chaves consented to enter a guilty plea before Magistrate Judge Kevin S.C. Chang. Pursuant to a Memorandum of Plea Agreement (“Plea Agreement”), she pled guilty to Count 1 of the Indictment. See Doc. No. 82, Consent; see also Doc. No. 83, Plea Agreement; Doc. No. 84, Report and Recommendation (“R&R”). Magistrate Judge Chang found that Chaves was:

fully competent and capable of entering an informed plea, that the guilty plea was intelligently, knowingly and voluntarily made, and that the offense charged is supported by an independent basis in fact establishing each of the essential elements of such offense. [Magistrate Judge Chang] further determined that [Chaves] intelligently, knowingly and voluntarily waived the right to appeal or collaterally attack the sentence except as provided in the plea agreement.

Doc. No. 84, R&R at 1-2. This court accepted Chaves' guilty plea on September 30, 2014. Doc. No. 85.

         Chaves admitted to the following facts as set forth in the Plea Agreement:

(1) on May 27, 2014, the DEA and HCPD performed a controlled delivery of a parcel containing methamphetamine that was mailed from Las Vegas, NV, to the Hawaii residence of co-defendant Saul Furstenwerth (“Furstenwerth”), Doc. No. 83, Plea Agreement ¶¶ 8(A), (B);
(2) Chaves was present when the parcel was opened and knew that it contained methamphetamine, id. ¶¶ 8(C), (D);
(3) co-defendants Ken Rio-Keahu King (“King”) and Jacob Umemoto (“Umemoto”) had traveled to Las Vegas in mid-late May 2014 to acquire methamphetamine, id. ¶ 8(D);
(4) a portion of the methamphetamine was intended for Chaves, as she had given King purchase money for methamphetamine[2] prior to his departure for Las Vegas, id.;
(5) Chaves knew that King had planned to mail the methamphetamine from Las Vegas to Furstenwerth in Hawaii, id. ¶ 8(E);
(6) Chaves and her co-defendants were present on May 27, 2014, to open the parcel and retrieve the methamphetamine, id.; and
(7) Chaves knew that the methamphetamine was intended for distribution to others in Hawaii, id.

         In addition, Chaves stipulated that the total weight of the methamphetamine seized from the parcel was 1794.74 grams. Id. ¶10(a). Chaves confirmed that she “fully understands the nature and elements of the crimes and allegations with which she has been charged.” Id. ¶ 3. Chaves further admitted that “she is in fact guilty of the crime charged against her in Count 1.” Id. ¶ 6.

         The Plea Agreement referenced two felony drug convictions not included in the Government's special information, but that Chaves agreed could be used to calculate her criminal history under the United States Sentencing Commission Guidelines. Id. ¶ 1(C). Chaves acknowledged that because of the special information, the statutory penalties for Count 1 included “an imprisonment term of at least twenty (20) years and up to life, a fine of up to $20, 000, 000, or both, and a term of supervised release of at least ten (10) years and up to life.” Id. ¶ 7. Chaves waived her right to appeal or collaterally attack the conviction and sentence except (1) if the sentence imposed exceeds the sentencing guideline range, or (2) based on a claim of ineffective assistance of counsel. Id. ¶ 13. And Chaves agreed to cooperate with the Government, with the understanding that the Government was under no obligation to seek a downward departure from the Guidelines for substantial assistance. Id. ¶¶ 21, 23.

         During the September 12, 2014 change of plea hearing, Chaves confirmed under oath that she

(1) understood the terms of the Plea Agreement, after reviewing and discussing it with counsel, and that her guilty plea was voluntary and not the result of force, threats, pressure, or promises (other than the specific terms of the Plea Agreement), Doc. No. 149, Tr. at 6-7;
(2) understood the Government's summary of the elements of the charged offense, and that the Government would have to prove each of those elements, id. at 5, 14-15;
(3) understood what her sentencing exposure would be if she pled guilty, including a mandatory minimum of 20 years imprisonment, id. at 10, 16; and
(4) admitted facts establishing the elements of Count 1, id. at 15-22.

         During the March 6, 2015 sentencing hearing, the court granted the Government's motion for downward departure pursuant to 18 U.S.C. § 3553(e), and sentenced Chaves to a term of 120 months imprisonment, five years of supervised release, and a special assessment of $100. Doc. No. 137.

         Chaves filed the instant § 2255 Motion on March 1, 2016.[3] On March 22, 2016, the court set briefing deadlines of June 3, 2016, for the Government's Response and June 24, 2016, for Chaves' optional Reply. Doc. No. 147, Order at 5. The Government filed its Opposition on June 3, 2016. Doc. No. 150. On July 29, 2016, the court granted an extension of time until August 19, 2016, for Chaves to file a Reply, and warned that should Chaves fail to meet this deadline, the court would assume that she does not intend to reply and will issue a ruling. Doc. No. 151. Chaves neither filed nor sought an additional extension of time to file a Reply.

         III. STANDARD OF REVIEW

         The court's review of Chaves' § 2255 Motion is governed by 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         A court should hold an evidentiary hearing on a § 2255 motion “unless the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “In determining whether a hearing and findings of fact and conclusions of law are required, ‘[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.'” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2010) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). “Thus, the district court's decision that [the petitioner's] ineffective assistance claim did not warrant an evidentiary hearing [is] correct if his allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting Schaflander, 743 F.2d at 717). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         Although an evidentiary hearing is normally required when a petitioner's allegations are based on facts outside of the record, no hearing is required when the petitioner's credibility can be “conclusively decided on the basis of documentary testimony and evidence in the record.” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988); see also Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

         IV. DISCUSSION

         Chaves raises five grounds for ineffective assistance of counsel: (1) counsel (Sierra and Panagakos) grossly misrepresented Chaves' sentencing exposure; (2) counsel (Sierra and Panagakos) failed to explain the elements of the conspiracy charge to her; (3) counsel (Sierra and Panagakos) failed to investigate and therefore appreciate that Chaves was actually innocent and that the Government's evidence did not support the charged crime; (4) counsel (Panagakos) failed to explain the nature and ramifications of the waiver of her right to appeal; and (5) counsel (Panagakos) failed to file an appeal, after Chaves “informed her . . . that [Chaves] wished to appeal.” Doc. No. 143, Mot. at 5-7.

         A. Legal Standards for Ineffective Assistance of Counsel Claims

         1. General Standards

         To prevail on an ineffective assistance claim, a petitioner must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). That is, the petitioner must also show that the deficiency was prejudicial. Id. at 692.

         Counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. But, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. See id. at 697. In other words, any deficiency that does not result in prejudice necessarily fails.

         2. Guilty Pleas and Plea Bargaining

         Generally, “[a] voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508 (1984), overruled in part on other grounds by Puckett v. United States, 556 U.S. 129 (2009).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].

Tollett v. Henderson, 411 U.S. 258, 267 (1973). “[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Missouri v. Frye, 132 S.Ct. 1399, 1406 (2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 373 (2010)). “During plea negotiations defendants are entitled to the effective assistance of competent counsel.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (internal citation omitted). Thus, “the Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Cabinatan v. United States, 2011 WL 255691, at *3 (D. Haw. Jan. 26, 2011) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).

         Where a petitioner has pled guilty and is asserting ineffective assistance of counsel, the second Strickland requirement (prejudice) focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. “In cases where a defendant complains that ineffective assistance led him [or her] to accept a plea offer as opposed to proceeding to trial, the defendant will have to show ‘a reasonable probability that, but for counsel's errors, he [or she] would not have pled guilty and would have insisted on going to trial.'” Frye, 132 S.Ct. at 1409 (quoting Hill, 474 U.S. at 59).

         In determining whether a plea was voluntarily and knowingly made, “[a] defendant's plea colloquy is given great weight.” Sam v. United States, 2015 WL 9897779, at *6 (D. Ariz. Dec. 2, 2015) (citing United States v. Boniface, 601 F.2d 390, 393 (9th Cir. 1979)). See also Blackledge, 431 U.S. at 65 (“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, as are contentions that in the face of the record are wholly incredible.”); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea.”). A collateral challenge based on allegations that contradict a defendant's sworn statements lacks merit. See Muth v. Fondren, 676 F.3d 815, 821-22 (9th Cir. 2012) (collecting cases and rejecting a defendant's challenge to his guilty plea that was contradicted by his sworn statements during the change of plea hearing).

         B. Application to Chaves' Claims of Ineffective Assistance of Counsel

         1. Misrepresentation of Sentencing Exposure

         Chaves alleges that Sierra “grossly misrepresented [her] sentencing exposure and that once [Chaves'] husband was arrested, her conviction would be (con't)” (sentence left unfinished). Doc. No. 143, Mot. at 5. Chaves also alleges that Panagakos “represented that [Chaves] would receive a lower sentence, in order to induce her to accept the plea agreement.” Id. Chaves further alleges that Panagakos “acknowledged [Chaves'] innocence . . . and the guilt of [Chaves'] spouse . . . [and] represented . . . that, ‘when they arrest your husband, you'll do less time.'” Id. at 6. Chaves contends that ‚ÄúPanagakos advised [her] to accept the plea agreement, knowing [Panagakos'] ...


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