United States District Court, D. Hawaii
ORDER (1) DENYING IN PART MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; AND
(2) DIRECTING GOVERNMENT TO FILE RESPONSE
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
Patricia Aruda pled guilty to, and was sentenced to 130
months imprisonment for, violating 21 U.S.C. §§
841(a)(1) and (b)(1)(A). Relying on 28 U.S.C. § 2255, Aruda
now seeks to vacate her sentence based on the alleged
ineffective assistance of counsel. Aruda asserts that counsel
was constitutionally deficient by failing: (1) to file a
direct appeal; (2) to properly advise her regarding
cooperation and acceptance of a guilty plea without the
benefit of a plea agreement or proffer letter; (3) to
properly advocate for and ensure the Government would file a
promised motion for downward departure for substantial
assistance, pursuant to United States Sentencing Guidelines
(“U.S.S.G.”) § 5K1.1; and (4) to advocate
for downward departure based upon U.S.S.G. § 5H1.6
(family ties and responsibilities).
careful consideration of Aruda's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence
(“Section 2255 Motion”), the record, and the
relevant legal authority, the Section 2255 Motion is DENIED
as to grounds two, three and four. As to the first ground,
the Court directs the United States to inform the Court by
June 2, 2017 whether it requests an evidentiary hearing or
elects instead to permit an appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000); United
States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir.
Indictment, Cooperation, And Guilty Plea
was arrested on May 21, 2014 following a controlled-buy
involving undercover officers of the Drug Enforcement
Administration (“DEA”) Task Force. Upon the
advice of her attorney at the time, Michael Jay Green, Esq.,
Aruda agreed to cooperate with the Government shortly after
her arrest. See Declaration of Michael Jay Green
¶¶ 17-24, attached as Ex. C to Mem. In Opp'n,
Dkt. No. 136-3. At their first meeting after her arrest,
Green explained to Aruda how cooperation could affect her
sentence, how he could obtain a “proffer letter”
from the Government, and the possibility of a downward
departure request from the Government if her assistance
amounted to substantial cooperation. Green Decl. ¶¶
17-18, 21. Green advised the investigating agents that Aruda
was willing to cooperate and that she was certain that she
could successfully engage in drug-related conversations over
the phone with her sources of supply in California. Green
Decl. ¶¶ 24-26.
was indicted by a grand jury on June 5, 2014 and charged with
a single count of knowingly and intentionally possessing with
the intent to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine,
its salts, isomers, and salts of its isomers, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(A). See
Indictment, Dkt. No. 11.
Aruda, Green, and DEA Task Force agents met on June 9, 2014,
Green read the text of a proffer letter to Aruda. Green Decl.
¶ 27; see also Green Decl., Ex. 2 (Unsigned
5/23/14 Proffer Letter); Ex. 3 (6/12/14 DEA Report of
Investigation). Green also explained to Aruda that there were
no promises made regarding the filing of a sentencing
reduction motion based upon her cooperation- that decision
would be made solely by the Government-and asked the agents
to clarify or correct his explanation of the proffer letter
to Aruda. Green Decl. ¶ 31.
thereafter met with the case agents on several occasions in
order to facilitate drug transactions with her sources, but
no arrests or convictions resulted from her cooperation.
See Green Decl. ¶¶ 36-44; Ex. 4 (3/18/15
DEA Report of Investigation).
a plea agreement, Aruda pled guilty to the single-count
Indictment on April 29, 2015. Dkt. No. 61 (4/29/15 Court
Minutes); 4/29/15 Tr. At the hearing, Aruda acknowledged that
she was knowingly and voluntarily pleading guilty without a
plea agreement, that she had enough time to discuss her
decision to do so with her attorney, and that she was
satisfied with Green's representation up to that point.
4/29/15 Tr. at 9, 23. She also affirmed that no one had made
any promises or assurances in order to induce her to plead
guilty. 4/29/15 Tr. at 10.
bail pending sentencing was revoked on August 7, 2015. Dkt.
No. 79 (8/7/15 Court Minutes); Dkt. No. 81 (8/7/15 Petition
On Conditions Of Pretrial Release). Myles S. Breiner, Esq.
replaced Green as Aruda's attorney on September 1, 2015.
See Dkt. No. 86 (8/31/15 Court Minutes); Dkt. No. 88
(9/1/15 Breiner Notice of Appearance).
December 7, 2015, as part of her sentencing hearing, the
Court heard arguments on Aruda's sealed Motion To Compel
The Government To File A Motion For Downward Departure
Pursuant To U.S.S.G. § 5K1.1 (“5K1.1
Motion”), see Dkt. No. 117. The Government
opposed Aruda's 5K1.1 Motion, which sought a sentencing
reduction based upon her cooperation. The Court denied the
5K1.1 Motion, citing Aruda's acknowledgment that (1) the
decision whether or not to file a 5K1.1 motion rested solely
with the Government; (2) no one had been arrested or charged,
much less pled guilty, based on the information she provided;
(3) there was no contention of any constitutionally
prohibited factor bearing on the Government's decisions;
and (4) there was no evidence of an arbitrary or irrational
decision on the part of the United States. 12/7/15 Tr. at
granting the Government's request for a one-level timely
plea adjustment under U.S.S.G. § 3E1.1(b) for acceptance
of responsibility, and considering Aruda's allocution
together with counsels' arguments, the Court sentenced
Aruda to 130 months' imprisonment-below the advisory
guideline range of 151 to 188 months (Offense Level 31,
Criminal History Category IV). 12/7/15 Tr. at 6, 32; Dkt. No.
122 (12/8/15 Judgment).
did not appeal. According to Breiner, she did not instruct
him to file a Notice of Appeal, but they did discuss whether
the filing of an appeal “might jeopardize further
consideration under Rule 35(b)(1).” Declaration of
Myles S. Breiner ¶ 9, attached as Ex. A to Mem. In
Opp'n, Dkt. No. 136-1. For her part, Aruda asserts that
“after sentencing, [Breiner] never discussed or
mentioned an appeal.” Declaration of Patricia Aruda
Section 2255 Motion
timely filed her Section 2255 Motion on November 30, 2016.
Dkt. No. 124. The motion is based on four alleged errors
committed by her counsel:
First Claimed Error: Sentencing counsel was
ineffective for failure to file a direct appeal;
Second Claimed Error: Counsel was ineffective for
failure to properly advise on cooperation and advising
acceptance of guilty plea without benefit of an agreement or
protection by proffer letter;
Third Claimed Error: Counsel was ineffective for
failure to properly advocate for and ensure government would
file promised § 5K1.1 reduction motion after extensive
substantial assistance was provided and assert breach of
Fourth Claimed Error: Sentencing counsel was
ineffective for failure to argue in mitigation for departure
based on USSG § 5H1.6 (Family Ties &
Mem. In Supp. at 4, Dkt. No. 124.
28 U.S.C. § 2255, “[a] prisoner in custody under
sentence of a court established by Act of Congress . . . may
move the court which imposed the sentence to vacate, set
aside, or correct the sentence.” 28 U.S.C. §
2255(a). The statute authorizes the sentencing court to grant
relief if it concludes “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[.]” Id.
addition, the Court shall hold an evidentiary hearing on a
petitioner's motion “[u]nless the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief[.]” 28 U.S.C. §
2255(b). The standard for holding an evidentiary hearing is
whether the petitioner has made specific factual allegations
that, if true, state a claim on which relief could be
granted. United States v. Schaflander, 743 F.2d 714,
717 (9th Cir. 1984). In other words, “[a] hearing must
be granted unless the movant's 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.” Id.
Grounds Two, Three, And Four: Aruda Fails To Establish That
Counsels' Performance Was Ineffective
Court first addresses Aruda's claims relating to
counsels' performance from the time of her arrest through
sentencing. Because neither Green nor Breiner provided
constitutionally deficient representation during this time
frame, the Section 2255 Motion is denied as to grounds two,
three, and four.
Legal Standards For Ineffective Assistance Of Counsel
prevail on an ineffective assistance claim, a petitioner must
first show that counsel's representation fell below an
objective standard of reasonableness. A petitioner must also
show that “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, 688, 694 (1984). In other
words, a petitioner must show both that counsel's
performance was deficient and that the deficiency
was prejudicial. Id. at 692.
establish prejudice in the context at issue here, the
petitioner “must show that there is 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.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). 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.” Strickland, 466 U.S. at
697. In other words, any deficiency that does not result in
prejudice necessarily fails.
“is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at
690. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
Id. at 690-91. Conclusory allegations of ineffective
assistance of counsel made with no factual or legal
explanation fall well short of stating a cognizable claim for
ineffective assistance of counsel. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977) (“[P]resentation
of conclusory allegations unsupported by specifics is subject
to summary dismissal.”). As set forth below, none of
Aruda's allegations meets the standard to establish
ineffective assistance of counsel as to grounds two, three,
Negotiations and Plea
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)).
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.'” Missouri v. Frye, 132 S.Ct. 1399,
1409 (2012) (quoting Hill, 474 U.S. at 59).
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