Opinion
CV 21-01276 PHX JJT (CDB) CR 16-01534(2) PHX JJT
02-17-2022
Antonio Nathaniel Eschief Movant/Defendant, v. United States of America, Respondent.
THE HONORABLE JOHN J. TUCHI:
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Before the Court is Antonio Eschiefs pro se motion to vacate, set aside, or correct his sentence, seeking relief pursuant to 28 U.S.C. § 2255.
I. Background
A grand jury indictment returned December 20, 2016, charged Eschief and a codefendant with assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). (Criminal Docket (“CR”) ECF No. 7).
On October 4, 2017, Eschief was given leave to proceed with retained counsel (Mr. Brown). (CR ECF Nos. 51 & 61). Eschiefs trial was continued several times. On March 19, 2018, the Court sua sponte continued the trial to July 3, 2018; at that time Eschiefs primary counsel, Mr. Brown, was deceased. (CR ECF Nos. 67 & 68). On May 24, 2018, Mr. Faussette formally notified the Court of the death of Mr. Brown and entered an appearance on behalf of Eschief. (CR ECF No. 72). 1
On July 19, 2018, pursuant to a written plea agreement, Eschief pled guilty to the second count of the indictment, i.e., discharging a firearm during a crime of violence. (CR ECF Nos. 78 & 79). The written plea agreement noted the mandatory minimum sentence and the maximum sentence for this crime. (CR ECF No. 79). In return for Eschief's guilty plea the Government agreed to dismiss the charge of assault with a deadly weapon. (CR ECF No. 79 at 3). In the written plea agreement Eschief waived all motions and defenses, and also waived his right to appeal or collaterally attack his conviction and sentence other than to assert an “otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct.'” (CR ECF No. 79 at 4). In the written plea agreement Eschief admitted to committing a crime of violence as charged in the first count of the indictment, i.e., the predicate offense of assault with a dangerous weapon. (CR ECF No. 79 at 7). Eschief admitted he knowingly discharged a firearm “‘during and in relation'” to the crime. (CR ECF No. 79 at 7-8). Eschief also admitted to a detailed factual basis for the crime to which he was pleading guilty. (CR ECF No. 79 at 8).
The written plea agreement contained a typographical error, stating the mandatory minimum sentence was five years' incarceration, which was corrected to the mandatory minimum sentence of ten years' imprisonment at the plea hearing. See CR ECF No. 79 at 1; infra at p. 14.
Additionally, in the written agreement Eschief avowed: he had read the plea agreement and voluntarily accepted the bargain; he had discussed his constitutional rights with his attorney and understood the rights he was waiving by pleading guilty; he had been advised by his counsel regarding the nature of the charge to which he was pleading guilty and the range of sentence he faced pursuant to this conviction; that the written plea agreement contained all the terms and conditions of the plea; and that any promises or predictions as to his sentence or the application of the United States Sentencing Guidelines not contained in the written agreement were “void and have no force and effect.” (CR ECF No. 79 at 8-9). He further stated his counsel had represented him in a competent manner in negotiating the plea agreement and advising him as to the terms of the plea agreement. (CR ECF No. 79 at 9). In the final written plea agreement the Government stipulated that Eschief's sentence would not exceed ten years' imprisonment, and agreed to recommend a 2 reduction in Eschief's sentence if he accepted responsibility for his crimes and cooperated with the Government. (CR ECF No. 92 at 2-3; CR ECF No. 93 at 2; CR ECF No. 95).
A presentence investigation report (“PSR”) was prepared. (CR ECF Nos. 84 & 88). The PSR determined “the guideline sentence is the term of imprisonment required by statute, ” and that “Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to this count of conviction. USSG §2K2.4(b).” (CR ECF No. 88 at 5). The PSR calculated a criminal history category of III, and reiterated the guideline sentence was the minimum term of imprisonment required by statute, i.e., 18 U.S.C. § 924(c)(1)(A)(iii). (CR ECF No. 88 at 7, 10). With regard to the impact of the plea agreement on Eschief's sentence the PSR noted that, had Eschief pled guilty to both counts of the indictment, his guideline sentence on Count One would have been 27 to 33 months' imprisonment, to be served consecutively to the required minimum ten-year sentence on Count Two. (CR ECF No. 88 at 11).
This section provides:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime .. for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
At the conclusion of a sentencing hearing conducted December 10, 2018, Eschief was sentenced to a term of 92 months' imprisonment, i.e., approximately seven and one-half years' imprisonment, followed by a term of three years supervised release. (CR ECF No. 94; CR ECF No. 111 (transcript of sentencing hearing)).
Eschief's current release date is July 23, 2023. The Court imposed a less-than-minimum term of imprisonment based on Eschief's cooperation with the Government.
Eschief did not appeal his conviction or his sentence. On August 5, 2019, he filed a letter asking the Court to appoint counsel, apparently referencing United States v. Davis, 3 139 S.Ct. 2319 (2019). (CR ECF No. 96, see also Eschief v. United States, No. 2:19-cv-04927 JJT). The Court forwarded the letter to the Federal Public Defender, who noticed the Court that there was no basis for appointment of counsel. See Eschief, No. 2:19-cv-04927 JJT at ECF No. 5. The Court notified Eschief that it was construing the letter as a motion pursuant to § 2255, and allowed Eschief to file a notice of withdrawal or an amended § 2255 motion. Id. Eschief then withdrew his letter requesting relief and on September 10, 2019, the § 2255 motion was denied and the matter dismissed without prejudice. See id. at ECF Nos. 6 & 7.
On July 22, 2021, Eschief filed the pending motion to vacate, set aside, or correct sentence pursuant to § 2255. (Civil Docket (“CV”) ECF No. 1). Eschief asserts his counsel was ineffective for failing to protect his “rights to appellate review, or collateral proceedings.” (CV ECF No. 1 at 4). He contends his counsel failed “to explain the complicated procedures of appeal and the 28 USC § 2255 process, and allow[ed] the Government to draft and posit a ‘one-sided plea agreement that was prospective and unequal in nature.'” (Id.). In his memorandum in support of his motion Eschief presents this issue as follows: “Was Counsel ineffective by allowing the U.S. Attorney to prepare and present a drafted Plea Agreement/Bargain, which left the Government with a[n] overwhelming superior bargaining position, and which violates ‘contract law.'” (ECF No. 1-1 at 4).
Eschief also alleges counsel was ineffective because there were “discrepencies [sic] between the Indictment, Plea Agreement, and Sentencing Colloquy” and, accordingly, his sentence “cannot be viewed as reliable” because it is unclear “what information the Court relied upon when imposing the sentence.” (CV ECF No. 1 at 5). In his memorandum Eschief contends his counsel was ineffective for failing “to notice that the language contained in the ‘Plea Agreement' did in effect ‘amend' the language and charges contained in the Indictment.'” (ECF No. 1-1 at 4). He further alleges the “[i]ndictment was insufficient where it failed to allege each and every ‘element' of the offense.” (Id.). Eschief allows he did not raise his second claim for relief on appeal, explaining he “waived 4 appellate rights on the [advice] of counsel” and, therefore, he “did not file a direct appeal.” (CV ECF No. 1 at 6).
In his third claim for relief Eschief his counsel was
... wholly ineffective in his failure to render assistance grounds for making the argument that Petitioner's guilty plea was/is “involuntary” due to his ignorance of the federal law and counsel's poor representation, i.e., failure to notice the amended language of the indictment, or that the indictment was insufficient. As well ignoring the AUSA's misstatement of law in the plea agreement.(CV ECF No. 1 at 7). In his memorandum Eschief argues his “‘ignorance' of existing rights (at the time) - now void the Plea Agreement and waiver of Appellate rights, where Counsel was ineffective insofar as of his duties to explain to Petitioner his rights.” (CV ECF No. 11 at 4).
In his fourth claim for relief Eschief asserts his counsel was ineffective because the “plea agreement contained charge[s] that were not handed down by the Grand Jury, ” constituting “a constructive amendment of the indictment.” (CV ECF No. 1 at 8). In his memorandum he contends “. where Petitioner's Plea Agreement contains a charge that was not handed down by the grand jury, is this a reversible error which must be attributed to defense counsel?” (CV ECF No. 1-1 at 5). Eschief also asserts his counsel was ineffective with regard to sentencing, alleging “that where he did not have more than (1) one criminal history point that counsel's failure to raise and advocate for an application of the safety valve was negligence.” (CV ECF No. 1 at 8). Eschief maintains his counsel was ineffective for failing to argue for a lesser sentence based on his criminal history and because “based upon a mens rea argument- [i.e., that his crime] was not a ‘per se' a ‘crime of violence.'” (CV ECF No. 1-1 at 33).
In his memorandum in support of his motion, Eschief “asserts that he is entitled to ‘resentencing' based on the Supreme Court's holding in United States v. Davis ...” (CV ECF No. 1-1 at 5). The bulk of Eschief's memorandum in support of his request for § 2255 relief is devoted to a discussion of Davis. With regard to his claim of errors in the plea agreement, Eschief states that the plea agreement incorrectly stated the “mandatory 5 minimum term of imprisonment is ... (here it must be noted that ‘[five years] was crossed out in the plea agreement - by ink pen, and ‘ten-years' penciled in in its place, with several initials by the alteration.'” (CV ECF No. 1-1 at 25). Eschief argues that, in light of this “error, ” “it is quite obvious that the author was ‘making up' the language as he went along, ” i.e., the language of § 924(c). (CV ECF No. 1-1 at 26).
Eschief also asserts the plea agreement stated Eschief was charged with use of a firearm “during and in relation to a drug trafficking crime, ” when he was not charged with a drug trafficking crime. (CV ECF No. 1-1 at 27). The initial and the final written plea agreement both state: “The defendant will plead guilty to Count 2 of the indictment charging the defendant with a violation of 18 United States Code (U.S.C.) § 924(c)(1)(A), Discharge of a Firearm During a Crime of Violence, a Class A felony offense.” (CR ECF No. 79 at 1; CR ECF No. 92 at 1). However, under the “Elements” heading the final written and signed plea agreement states:
Use of a Firearm During and In Relation to a Drug Trafficking Crime
On or about December 11, 2016, in the District of Arizona:
1. The defendant committed the crime of assault with a dangerous weapon as charged in Count 1 of the Indictment;
2. The defendant knowingly discharged a weapon during and in relation to that crime.(ECF No. 92 at 7) (emphasis in original). This is the only place in the record that incorrectly states the predicate § 924(c) crime was drug trafficking, rather than a crime of violence, and it appears to be a typographical error. This typographical error was not repeated during the plea colloquy or at the sentencing hearing, and it is reasonable to presume that neither Eschief nor the Government ever presumed or believed the predicate offense was a drug trafficking crime.
Eschief contends all of his claims “are incorporated pursuant to” Strickland v. Washington and, accordingly, his counsel's performance was unreasonable. (CV ECF No. 1-1 at 30-31). Eschief asserts he has established a likelihood “that there would have been a completely differently outcome in the proceeding(s)” but for counsel's failure to raise the claims asserted in the § 2255 motion. (Id.). He also questions why counsel would allow Eschief to agree to waive all appellate and collateral challenges. (Id.). In his prayer for relief Eschief asks the Court to vacate his sentence and impose a sentence “w/o the enhancement for a ‘violent crime.'” (CV ECF No. 1 at 12).
Respondent contends the motion is not timely, that Eschief's claims are not supported by the record, and that Eschief is not entitled to relief pursuant to Davis. (ECF No. 12). 6
II. Analysis
A. Relief under § 2255
A federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). See also, e.g., United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016); United States v. Self, 100 F.Supp.3d 773, 776 (D. Ariz. 2015).
B. Statute of limitations
Section 2255 provides that a “1-year period of limitation shall apply to a motion under this section, ” which
... shall run from the latest of (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f).
When no direct appeal is filed, the judgment of conviction becomes final when the time for filing a notice of appeal expires. See United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015); United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). A federal criminal defendant's notice of appeal is due fourteen days after judgment is entered. See Fed. R. App. P. 4(b)(1)(A). Judgment was entered against Eschief on December 10, 2018 (CR ECF No. 94), and accordingly Eschief's conviction became final on December 24, 2018. Therefore, the one-year statute of limitations on Eschief's § 2255 action expired on December 25, 2019. Eschief filed his § 2255 motion on July 22, 2021, approximately one 7 year and six months after the statute of limitations expired, and therefore his § 2255 motion is untimely.
The statute of limitations contained in § 2255 is subject to equitable tolling. E.g., United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004).
A § 2255 movant is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” The movant must show that the extraordinary circumstances “‘were the cause of his untimeliness.'”United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (citations omitted). A § 2255 movant bears the burden of proof on the existence of cause for equitable tolling. See Holland v. Florida, 560 U.S. 631, 645-46 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); United States v. Gilbert, 807 F.3d 1197, 1201-02 (9th Cir. 2015).
With regard to the statute of limitations, in his § 2255 motion Eschief asserts “it was impossible to address a 2255” because the prison was “locked down from Dec. of 2019 to Feb. of 2020, ” and the “advent of the COVID-19 pandemic did further hinder and make it impossible to research or perfect a habeas petition.” (CV ECF No. 1 at 11). He also asserts that Davis allows him to file a § 2255 motion within one year of a new rule of constitutional law announced by the Supreme Court. (Id.). Additionally, in his memorandum in support of his motion Eschief argues there is no statute of limitations regarding a § 2255 motion, and he contends he has a right to assert claims of ineffective assistance of counsel and a Davis claim “where the advent of Covid-19 did prevent [him] from filing a full 13-months earlier.” (ECF No. 1-1 at 33-36).
Eschief fails to show that he diligently pursued § 2255 relief and that extraordinary circumstances prevented him from timely filing his motion. To the extent Eschief asserts the COVID pandemic hindered his ability to timely file his motion, COVID-19 was not officially designated as a pandemic by the World Health Organization until March 11, 2020, more than two months after the statute of limitations expired and, therefore, this fails to excuse Eschief's lack of diligence in seeking relief. A § 2255 movant “must show that 8 he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir.), cert. denied, 141 S.Ct. 878 (2020).
To the extent Eschief argues a pre-pandemic lockdown created an extraordinary circumstance preventing him from timely filing his motion because the lockdown created an obstacle to accessing legal resources, the Ninth Circuit Court of Appeals has generally held that prison limitations on access to a law library do not constitute extraordinary circumstances warranting equitable tolling. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (“Ordinary prison limitations on Ramirez's access to the law library and copier ... were neither ‘extraordinary' nor made it ‘impossible' for him to file his petition in a timely manner.”); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (recognizing that lack of access to library materials does not automatically qualify as grounds for equitable tolling); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (determining limited resources and lack of familiarity with the law generally do not qualify as an extraordinary circumstances where the movant cannot prove that it prevented filing); Hizbullahankhamon v. Walker, 255 F.3d 65, 74-75 (2nd Cir. 2001) (declining to toll deadline for the period of time the prisoner spent in solitary confinement without any access to legal materials); United States v. Van Poyck, 980 F.Supp. 1108, 1111 (C.D. Cal. 1997) (concluding an inability to secure copies of transcripts from court reporters and lockdowns at a prison lasting several days and allegedly eliminating access to law library were not extraordinary warranting equitable tolling of the statute of limitations); Sanchez v. United States, 170 Fed.Appx. 643, 646-47 (11th Cir. 2006) (concluding equitable tolling was not appropriate during the period of a prison lockdown occasioned by preparation for an impending hurricanes); Lewis v. Schroder, 2014 WL 6792047, at *15 (D. Ariz. Dec. 2, 2014); Hale v. Schriro, 2010 WL 2573188, at *3 (D. Ariz. June 22, 2010); United States v. Garcia-Guia, 2013 WL 5329232, at * 2 (S.D. Ohio Sept. 20, 2013). 9
Furthermore, Eschief does not argue that he was prevented from writing his § 2255 motion during the referenced lockdowns, nor does he assert he was prevented from utilizing the mail during the lockdown periods. See United States v. Ramsey, 1999 WL 718079, at *2 (E.D. Pa. Aug. 26, 1999) (finding the petitioner had not met his burden of establishing a basis for equitable tolling where the petitioner did not assert he was prevented from writing his § 2255 motion or utilizing the mail during the lockdown period). Compare Espinoza-Matthews v. California, 432 F.3d 1021 (9th Cir. 2005) (finding a basis for equitable tolling where, as a result of various prison restrictions “[f]or nearly 11 months, despite his diligence, Espinoza-Matthews could not obtain his legal papers, ” and ultimately “had only slightly over a month with his legal file to try to prepare a proper petition.”); Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (concluding equitable tolling was warranted where the petitioner demonstrated he “was denied access to his files during two temporary transfers that lasted eighty-two days.”).
Additionally, even if the results of the pandemic were considered extraordinary circumstances, Eschief fails to show they were the but-for cause of his failure to timely file his motion, because the first COVID lockdown did not occur until several months after the statute of limitations expired. See Akins v. United States, 204 F.3d 1086, 1090 (11th Cir. 2000); United States v. Soto, 1999 WL 273315, at *1 (9th Cir. Apr. 22, 1999); Swopes v. United States, 2021 WL 1546270, at *4 (E.D. Mo. Apr. 20, 2021) (“Even assuming that movant would not have been able to file his motion before the pandemic, he has still failed to establish how his modified lockdown status prevented him from timely filing his motion before the one-year limitations period ended[.]”); Daniels v. United States, 2021 WL 1239812, at *3 (W.D. N.C. Apr. 2, 2021) (“While [Petitioner's] efforts may have been hampered by COVID-19-related restrictions at his facility between April and June 2020, Petitioner was not without ample opportunity before any restrictions were in place to prepare his motion.”); Turner v. United States, 2021 WL 796135, at *3 (C.D. Ill. Mar. 2, 2021); United States v. Thomas, 2020 WL 7229705, at *2 (E.D. La. Dec. 8, 2020) (“[d]uring the COVID-19 pandemic, courts have found that prisoners are not entitled to 10 equitable tolling if there is no evidence that they diligently pursued their right to file a § 2255 motion prior to the lockdowns”), citing Untied States v. Barnes, 2020 WL 4550389, at *2 (N.D. Ok. Aug. 6, 2020) (“Even assuming that a lockdown due to the COVID-19 pandemic delayed defendant's ability to file his motion, it does not explain the more than one-year delay. COVID-19 measures have been in effect since March 2020, and defendant could have filed his motion long before March 2020”).
Additionally, Davis was decided June 24, 2019, and Eschief sought § 2255 relief pursuant to Davis in August of 2019, prior to the expiration of the statute of limitations. Eschief's ability to file a timely petition in August of 2019 indicates none of the abovementioned circumstances actually prevented Eschief from timely filing a § 2255 motion. See Ramirez, 571 F.3d at 1001; Soto v. Lopez, 575 Fed.Appx. 740, 740-41 (9th Cir. 2014). Eschief withdrew his August 2019 petition rather than pursuing a Davis claim at that time, and he then waited for more than a year before filing the instant petition, again seeking relief pursuant to Davis and also asserting claims for ineffective assistance of counsel, which claims could have been presented in the August 2019 action.
Subsection 2255(f)(3) authorizes the filing of a § 2255 motion within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” See also United States v. Blackstone, 903 F.3d 1020, 1023 (9th Cir. 2018). To the extent Eschief contends his § 2255 motion is timely under subsection (f)(3) because he is seeking relief pursuant to Davis, this argument is unavailing because Davis does not afford Eschief the relief he seeks. Davis implicated the sentence of defendants charged under § 924(c)'s “residual” clause and, therefore, any defendant sentenced under that clause had one year from the time the Supreme Court issued Davis to challenge their conviction. However, the Supreme Court's decision in Davis found only the residual clause of § 924(c) unconstitutional, and the predicate offense for Eschief's conviction was assault with a dangerous weapon, which is covered by § 924(c)'s “elements” clause. In United States v. Gobert, 943 F.3d 878, 882 (9th Cir. 2019), the Ninth 11 Circuit held that “assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) is a crime of violence under the elements clause [of 924(c)].” See also United States v. Muskett, 970 F.3d 1233, 1242 (10th Cir. 2020) (“In sum, the crime of assault with a dangerous weapon cannot be committed without the use, attempted use, or threatened use of physical force capable of causing, directly or indirectly, physical pain or injury. Mr. Muskett's commission of that offense is therefore categorically a crime of violence under § 924(c)'s elements clause”), cert. denied, 141 S.Ct. 1710 (2021); United States v. Ortiz, 793 Fed.Appx. 560, 560 (9th Cir. 2020). Because Davis implicated only the residual clause of § 924(c) and Eschief's sentence is authorized under § 924(c)'s elements clause, Davis does not implicate the validity of Eschief's sentence and render his § 2255 motion timely.
Accordingly, because his § 2255 motion was not filed within one year of the date his conviction because final, and Eschief does not state a legitimate claim regarding a later date for the running of the statute of limitations or provide a basis for equitable tolling of the statute of limitations, all of Eschief's claims are time-barred.
C. Waiver of claims
In the written plea agreement Eschief waived his right to appeal or collaterally attack his conviction and sentence, other than to assert a claim of ineffective assistance of counsel. A defendant's waiver of his right to appeal or collaterally attack his conviction and sentence is enforceable if the language of the waiver encompasses the grounds raised in an appeal or collateral attack, and the waiver is knowingly and voluntarily made. See United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016); United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011); United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). A guilty plea is “involuntary” if it is the product of threats, improper promises, or other forms of coercion. Brady v. United States, 397 U.S. 742, 754-55 (1970); Machibroda v. United States, 368 U.S. 487, 493 (1962). A guilty plea is “unknowing” if the defendant is without the information necessary to intelligently assess the advantages and disadvantages of a trial as compared with those of entering a guilty plea. Hill v. Lockhart, 474 U.S. 52, 56 (1985); United States v. Barrios-Gutierrez, 255 F.3d 1024, 1027-28 (9th Cir. 2001). During 12 Eschief's plea hearing the Court reviewed the charge to which he was pleading guilty and each of the terms of the plea agreement, and the maximum penalty Eschief faced by pleading guilty. The Ninth Circuit Court of Appeals has held such procedures sufficient to find a guilty plea knowing and voluntary. See Lo, 839 F.3d at 784; United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996).
The Magistrate Judge engaged in a full Rule 11 colloquy with Eschief during the change of plea proceedings. (CV ECF No. 12-1 (transcript of plea hearing)). Eschief was placed under oath and advised of the penalties for failing to answer the Court truthfully. (CV ECF No. 12-1 at 4). Eschief confirmed that he signed the plea agreement. (CV ECF No. 12-1 at 5). Eschief's counsel informed the Court that the plea agreement was reviewed with Eschief “several times.” (CV ECF No. 12-1 at 5-6). Eschief confirmed he had reviewed the entire plea agreement with his attorney, and that counsel answered all his questions before he signed the agreement. (CV ECF No. 12-1 at 6). Eschief averred he had enough time to speak with his attorney about the plea agreement, and that he understood the entire plea agreement. (CV ECF No. 12-1 at 6). Eschief told the Court, under oath, that he was satisfied with his counsel's representation. (CV ECF No. 12-1 at 6-7).
Eschief told the Court that nobody had forced, threatened, or coerced him to enter into the plea agreement, and that nobody made any promises to him other than those contained in the agreement. (CV ECF No. 12-1 at 7-8). Eschief affirmed that he was “pleading guilty voluntarily because [he] believe[d] that [he was] guilty of this offense.” (CV ECF No. 12-1 at 8). Eschief affirmed, under oath, that he understood the rights he was waiving by pleading guilty. (CV ECF No. 12-1 at 15). Eschief affirmed that he had discussed the plea agreements' waiver of rights provisions with his attorney, and the Magistrate Judge reviewed the rights he was waiving by pleading guilty, including his “rights to challenge [his] conviction and [his] sentence . . . by either appealing to a higher 13 Court or by ... filing .. a collateral proceeding.” (CV ECF No. 12-1 at 15). The Court asked Eschief specifically if he wanted to waive his right to an appeal, and Eschief stated: “Yes.” (CV ECF No. 12-1 at 16).
Eschief was advised of his continuing right to plead not guilty and proceed to trial before a jury. (CV ECF No. 12-1 at 18-19). He was advised of his right to a jury trial, the right to be represented by counsel at trial and at every other stage of the proceeding, the right to confront and cross-examine witnesses, the right to be protected from compelled self-incrimination, and his rights to testify and present evidence. (CV ECF No. 12-1 at 18-20).
Eschief was advised of the maximum penalty-a term of life imprisonment-for the crime to which he was pleading guilty. (CV ECF No. 12-1 at 8). The Magistrate Judge initially advised Eschief that the mandatory minimum term of imprisonment for his conviction would be five years. (Id.). However, counsel for the Government then noted: “I apologize, Your Honor. That five years is an error. It's actually ten years. May we please correct the plea agreement, Your Honor.” (Id.). The Magistrate Judge replied, “Certainly. So I want to make sure I've read it correctly as well. Maximum term of life, mandatory minimum of ten years.” (Id.). The Magistrate Judge then stated: “So, Mr. Eschief, just to make sure that we haven't created any confusion, let me restate the penalties again. So the maximum statutory penalties are ... a maximum term of imprisonment of life ... and a mandatory minimum term of imprisonment of ten years.” (CV ECF No. 12-1 at 9). In response to the question: “Do you understand the maximum penalties that I just explained to you?” Eschief said: “Yes, ma'am.” (Id.). The parties corrected the written plea agreement at the end of the change of plea hearing with regard to the mandatory minimum sentence of ten years' imprisonment. (CV ECF No. 12-1 at 23). The written plea reflects the correction, and the initials of Government's counsel, Eschief's counsel, and Eschief himself are on the corrected plea agreement. (CR ECF No. 92 at 10-11).
Before taking Eschief's guilty plea, the Magistrate Judge advised Eschief he was pleading guilty to “discharge of a firearm during a crime of violence” in violation of § “924(c)(1)(A), ” and Eschief confirmed that he understood the charge. (CV ECF No. 121 at 7-8). The Magistrate Judge delineated each of the elements of discharging a firearm during a crime of violence the Government would be required to prove at trial, including that Eschief had “committed the crime of assault with a dangerous weapon, ” and that he “discharged a weapon” during commission of the crime. (CV ECF No. 12-1 at 20). These elements were also listed in Eschief's written plea agreement. (CR ECF No. 92 at 7-8, see also supra at n.4). 14 Eschief stated that he understood the elements of the crime of conviction. (CV ECF No. 12-1 at 20). The Magistrate Judge noted: “If you decide to plead guilty, then you will not have a trial and, instead, your statements here today in Court will establish your guilt. Do you understand?” and Eschief replied: “Yes, ma'am.” (CV ECF No. 12-1 at 20-21). The Court then reviewed the factual basis contained in the plea agreement with Eschief, and Eschief stated that the facts written in the plea agreement establishing the elements of the crime were true. (CV ECF No. 12-1 at 21-22).
At the sentencing hearing, the Court confirmed that Eschief had reviewed the PSR with his attorney, that he had sufficient time to ask his attorney questions about the report, that he understood the PSR, and that he was satisfied with his attorney's representation. (CV ECF No. 12-2 at 5). The Court gave the Government, Eschief, and Eschief's counsel the opportunity to address the Court before sentencing. (CV ECF No. 12-2 at 8-11). Both Eschief and his counsel addressed the Court, and Eschief apologized to his victims and spoke of his “mistakes.” (CV ECF No. 12-2 at 8-9). The Government recommended a sentence of 97 months' imprisonment followed by a term of five years' supervised release, noting “Mr. Eschief was the individual who actually fired the weapon at these different residences.” (CV ECF No. 12-2 at 10-11). The Court, after reviewing all the sentencing factors, sentenced Eschief to a term of 92 months' imprisonment, followed by 36 months of supervised release, a below-guidelines sentence and a sentence below the statutory minimum sentence. (CV ECF No. 12-2 at 14-15; CR ECF No. 94.) After imposing sentence, the Court reiterated that Eschief had waived his right to an appeal. (CV ECF No. 12-2 at 17-18). After the Court noted the imposed sentence was “significantly less” than the maximum sentence allowed by the plea agreement, Eschief agreed that the sentence was consistent with his plea agreement. (Id.).
Eschief was adequately informed of the consequences of his plea both in the written plea agreement and during the Rule 11 hearing and, therefore, his guilty plea is considered knowing. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Because “it is difficult to probe the highly subjective state of mind of a criminal defendant, the best 15 evidence of his understanding when pleading guilty is found in the record of the Rule 11 colloquy.” United States v. Jimenez-Dominguez, 296 F.3d 863, 869 (9th Cir. 2002). Eschief's contemporaneous statements regarding his understanding of the plea agreement and that he was satisfied with his counsel's representation and advice carry substantial weight. See 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.”); United States v. Kaczynski, 239 F.3d 1108, 115 (9th Cir. 2001). “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee v. United States, 137 S.Ct. 1958, 1967 (2017). Accordingly, based on his statements under oath at the plea hearing, the Court may conclude Eschief's guilty plea was knowing and voluntary. See United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991); United States v. Walker, 160 F.3d 1078, 1096 (6th Cir. 1998) (holding that “a straightforward and simple ‘Yes, your Honor'” is sufficient to bind a § 2255 movant to the consequences of a plea agreement).
Furthermore, Eschief informed the Magistrate Judge at his plea hearing and the Court at sentencing that he was satisfied with his counsel's representation. Because any assertions that counsel misled or misinformed Eschief are without support in the record, they do not provide a basis for habeas relief. See United States v. Timbana, 222 F.3d 688, 702 (9th Cir. 2000) (holding the defendant's claims for relief could be denied because his claims were not supported by the record, which included his sworn statements to the contrary at his plea hearing); United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir. 1983). 16 Additionally, the fact that Eschief did not assert any misunderstanding at his plea colloquy and sentencing is a further indication that he knowingly and voluntarily pled guilty to the crime of discharging a firearm during the commission of a crime of violence. See Evenstad v. United States, 978 F.2d 1154, 1157-58 (9th Cir. 1992) (holding an alleged error going to mitigation which was not raised at sentencing was waived absent a showing of cause and prejudice); United States v. Lunsford, 787 F.2d 465, 466 (9th Cir. 1986) (finding that the defendant's “guilty plea was entered voluntarily and knowingly” where defendant did not object to the later-asserted error during the plea colloquy or at sentencing).
The following colloquy occurred at the Rule 11 hearing:
THE [Magistrate Judge]: You have been represented by Mr. Faussette. Have you been satisfied with that representation?
THE DEFENDANT: Yes, ma'am.(CV ECF No. 12-1 at 6-7). At sentencing, the Court asked Eschief: “... have you been satisfied with the representation that Mr. Faussette has given you as your lawyer in this matter?” Eschief responded: “Yes, sir.” (CV ECF No. 12-2 at 5).
Therefore, as specified in the written plea agreement, all of Eschief's claims of error, other than his ineffective assistance of counsel claims, were waived by his knowing and voluntary guilty plea.
D. Claims preserved in the plea agreement
The plea agreement specifically excepted ineffective assistance of counsel claims and, therefore, Eschief did not waive his claims that his counsel was ineffective. Furthermore, a waiver does not apply if the imposed sentence does not comport with the terms of the plea agreement, or the sentence violates the law. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution, ” and “[o]verstepping a maximum statutory prison term is not the only way a sentence” can be found to have impermissibly exceeded the statutory penalty. United States v. Bomber, 656 Fed.Appx. 812, 813 (9th Cir. 2016), quoting Bibler, 495 F.3d at 624.
The two-part test stated in Strickland v. Washington, 466 U.S. 668 (1984) governs claims of ineffective assistance of counsel arising out of the plea process. See, e.g., Hill, 474 U.S. at 57; Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir. 1994). To succeed on a Strickland claim, a convicted defendant must show his counsel's representation fell below an objective standard of reasonableness and that, but for counsel's deficient performance, there is a reasonable probability the result of the criminal proceeding would 17 have been different. Strickland, 466 U.S. at 687-88, 694. Eschief bears the burden of providing sufficient evidence from which the Court can conclude his counsel was ineffective. See, e.g., United States v. Quintero Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Eschief must overcome a strong presumption that his counsel's representation was within a wide range of reasonable professional assistance. See United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991); United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986).
The “prejudice” prong of the Strickland test is modified when a defendant challenges a conviction or sentence resulting from his guilty plea; in this circumstance the defendant must show there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty to the charges against him but instead would have insisted on going to trial or he would have received a more favorable plea bargain. See Hill, 474 U.S. at 59; United States v. Howard, 381 F.3d 873, 882-83 (9th Cir. 2004); Baramdyka, 95 F.3d at 846-47. The assessment of prejudice also depends on whether going to trial would have given the defendant a reasonable chance of obtaining a more favorable result. Hill, 474 U.S. at 59 (noting that the assessment of prejudice will depend “in large part on a prediction whether the evidence likely would have changed the outcome of trial”). See also United States v. Astorga, 457 Fed.Appx. 698, 700 (9th Cir. 2011) (finding no prejudice from counsel's performance where the defendant pled guilty and received sentence of 70 months, when he faced a sentence of 120 months if he had proceeded to trial because he was likely to be convicted). Furthermore, the probability of prejudice may not be based upon mere conjecture or speculation, and the prediction about whether the defendant had a reasonable chance of obtaining a more favorable result in his criminal proceedings “should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.'” Hill, 474 U.S. at 60, quoting Strickland, 466 U.S. at 695. Additionally, unsupported and conclusory allegations are not sufficient to support a claim for habeas relief on a claim of ineffective assistance of counsel. United States v. Popoola, 881 F.2d 811, 813 (9th Cir. 1989), abrogated on other grounds by Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992); 18 United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987). Bare accusations, without more, are insufficient to compel relief under section 2255. United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996).
Eschief alleges counsel misinformed and misled him in negotiating and tendering his plea and, in general, provided ineffective assistance. However, he stated at the plea hearing and at sentencing that he was satisfied with counsel's performance and representation. These solemn and sworn declarations made in open court carry a strong presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Andrade-Larrios, 39 F.3d 986, 990-91 (9th Cir. 1994) (placing great weight on responses during the plea colloquy where the defendant provided no affidavits to support his claim that his plea was coerced by the Government's threats to prosecute the defendant's family); Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995) (finding the defendant's claim of coercion by the threat that his wife might be indicted if the defendant did not plead guilty was not persuasive because such was denied during the plea hearing).
Furthermore, because the assertion that counsel misled Eschief are without support in the record, they do not provide a basis for habeas relief. See United States v. Timbana, 222 F.3d 688, 702 (9th Cir. 2000) (holding the defendant's claims for relief were properly denied because his claims were not supported by the record, which included his sworn statements to the contrary at his plea hearing); United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979) (same). Prior to entering his guilty plea Eschief was informed of the minimum and maximum sentence for his crime and the elements of the crime to which he was pleading guilty; accordingly, he cannot establish prejudice arising from his counsel's purported failure to identify typographical errors in the written plea agreement with regard to the mandatory minimum sentence and that he was pleading guilty to discharging a weapon during a crime of violence rather than a drug-trafficking crime. See Womack v. Del Papa, 497 F.3d 998, 1003-04 (9th Cir. 2007) (holding the defendant did not suffer prejudice because his counsel underestimated the sentence he would receive, because the court advised him regarding the possible maximum sentence at the plea hearing). 19
Additionally, Eschief does not plausibly assert that, but for his counsel's alleged errors, he would have elected to proceed to trial when he faced a mandatory minimum sentence of 12 years' imprisonment if convicted on both charges. Eschief is unable to establish a reasonable probability that, had he proceeded to trial, the outcome of his criminal proceedings would have been more favorable because there was extensive inculpatory evidence of his guilt. In return for Eschief's guilty plea and cooperation, as negotiated by counsel, not only was one of the charges against Eschief dismissed, Eschief also received a sentence below the mandatory minimum for the crime to which he pled guilty. Had Eschief not pled guilty, but instead gone to trial and been found guilty (and the weight of evidence of his guilt was substantial), he would have received a minimum sentence of 12 years' imprisonment; pursuant to the plea agreement Eschief was sentenced to a term of 7.5 years' imprisonment.
Additionally, Eschief's claim that the maximum sentence he could receive under § 924(c) is five years, is not sustainable. The mandatory minimum sentence for a conviction on using or carrying a firearm during a crime of violence or a drug trafficking crime is five years; however, the statute provides for a mandatory minimum sentence of ten years' imprisonment for those who discharge a firearm during a crime of violence. See 42 U.S.C. § 924(c)(1)(A). Eschief admitted in the written plea agreement and at his plea hearing that he had discharged a weapon during the crime of aggravated assault with a deadly weapon.
Accordingly, in addition to being time-barred, Eschief's claims of ineffective assistance of counsel and that his sentence was not authorized by law are without merit.
III. Conclusion
Eschief's § 2255 motion was not filed within the applicable one-year statute of limitations, and he fails to establish equitable tolling is warranted in his case. Additionally, by knowingly and voluntarily pleading guilty Eschief waived all of his claims, other than his claims regarding ineffective assistance of counsel and the propriety of his sentence. 20 Eschief's claims of ineffective assistance of counsel and the propriety of his sentence are without merit.
IT IS THEREFORE RECOMMENDED that Eschief's Motion to Vacate, Set Aside, or Correct Sentence (CV ECF No. 1) be DENIED.
This report and recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72. 21