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Aruda v. United States

United States District Court, D. Hawaii

May 3, 2017

PATRICIA ARUDA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CV. No. 16-00642 DKW-KSC

          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

         INTRODUCTION

         Petitioner 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).[1] 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).

         After 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. 2005).

         BACKGROUND

         I. Indictment, Cooperation, And Guilty Plea

         Aruda 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.

         Aruda 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.

         When 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.

         Aruda 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).

         Without 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.[2] 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.

         Aruda's 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).

         II. Sentencing

         On 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.[3] 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 19-20.

         After 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).

         Aruda 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 ¶ 15.

         III. Section 2255 Motion

         Aruda 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 contract claim;
Fourth Claimed Error: Sentencing counsel was ineffective for failure to argue in mitigation for departure based on USSG § 5H1.6 (Family Ties & Responsibilities).

Mem. In Supp. at 4, Dkt. No. 124.

         STANDARD OF REVIEW

         Under 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.

         In 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.

         DISCUSSION

         I. Grounds Two, Three, And Four: Aruda Fails To Establish That Counsels' Performance Was Ineffective

         The 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.

         A. Legal Standards For Ineffective Assistance Of Counsel Claims

         1. General Standard

         To 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.

         To 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.

         Counsel “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, and four.

         2. Negotiations and Plea

         “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.'” Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012) (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 ...


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