Opinion
CV-23-0054-PHX-DGC (JFM) CR-17-1354-PHX-DGC
10-23-2023
Latoya Leonardine Johnson, Movant/Defendant v. United States of America, Respondent/Plaintiff.
REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Movant, following her conviction in the United States District Court for the District of Arizona, filed a Third Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 11). Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Movant's Plea Agreement includes the following statement of factual basis:
On or about September 23, 2017, in the District of Arizona, within the confines of the Tohono O'odham Indian Reservation, Indian Country, the defendant, Latoya Leonardine Johnson, unlawfully killed the victim, John Doe, with malice aforethought. Specifically, the defendant walked the victim out into the desert and beat him with a wooden object, resulting in his death.
At the time of the offense, the defendant had some quantum of Indian blood and was a member of or affiliated with the Tohono O'odham Indian Reservation, a federally recognized tribe.(CR Doc. 78, Plea Agreement at 7.)
B. PROCEEDINGS AT TRIAL
Movant was indicted in the District of Arizona on charges of: (1) child abuse; (2) kidnapping; (3) first degree felony murder; and (4) first degree murder. (CR Doc. 1, Indictment.) The child abuse charges and various enhancements were based on the victim being under the age of 14.
Counsel was appointed for Movant, and following a competency hearing, Movant was committed for restoration of competency. (CR Doc. 42, Order 5/22/18,) Movant was subsequently found competent to stand trial. (CR Doc. 65, M.E. 12/7/18.)
Movant then entered into a written Plea Agreement (CR Doc. 78) in which Movant agreed to plead guilty to second degree murder, a less included offense of Count 4 (first degree murder) of the Indictment, in exchange for inter alia the dismissal of the other charges and a stipulated sentence of 35 years in prison. (Id. at ¶¶ 1, 3(a), 4(a).) The Plea Agreement included a waiver of various rights, including “any right to file.. .any collateral attack...that challenges the conviction.. .the entry of judgment against the defendant, or any aspect of the defendant's sentence.. .including but not limited to.. .motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions).” (Id. at ¶ 6.) On January 23, 2019, Movant entered her guilty plea pursuant to the Plea Agreement. (CR Doc. 68, M.E. 1/23/19; CR Doc. 70, RR re Plea.)
On May 9, 2019 the plea was accepted, and Movant was sentenced to 420 months (i.e. 35 years) in prison. (CR Doc. 77, M.E. 5/9/19; CR Doc. 79 Judgment.)
C. PROCEEDINGS ON DIRECT APPEAL
Movant did not file a direct appeal. (Motion, Doc. 11 at 2.)
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Motion - Movant, presently incarcerated in the Federal Medical Center in Fort Worth, Texas, Arizona, commenced the current case by filing her original Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 9, 2023 (Doc. 1). That Motion to Vacate, and subsequently a First Amended (Doc. 4) and Second Amended (Doc. 6) Motion to Vacate were dismissed with leave to amend. (Orders 1/18/23, Doc. 3; 2/3/23, Doc. 5; and 3/10/23, Doc. 8.) Movant filed the instant Third Amended Motion to Vacate (Doc. 11) on March 28, 2023.
In Ground One, she alleges that she is serving a sentence in prison for the first time and does not know why she is in prison. Movant further alleges that she did not know why she was brought to court and that she did not know what was taking place. She also alleges that she did not understand her right to a trial and that her attorney did not take the case to trial.
In Ground Two, Movant alleges that she did not understand any of the court proceedings or what people were saying to her.
In Ground Three, Movant claims that she did not do “it” and did not know what “they” were talking about. She also asserts there was a lack of evidence, presumably to support her conviction and/or sentence.
In Ground Four, Movant states, “no motive,” and alleges that she was in jail at the time of the offense.
The Court construes Movant's grounds for relief as asserting that she is actually innocent of her crime of conviction, that her conviction and/or sentence violated due process because they were not supported by sufficient evidence, and that her guilty plea was not knowing, intelligent, and voluntary.(Order 6/29/23, Doc. 12 at 2.)
Response - On August 22, 2023, Respondent filed its Response (Doc. 16), arguing that as part of her plea agreement Movant waived her right to file the instant proceeding and thus is barred from bringing it. Respondents further argue Movant's claims are without merit, including her assertion that her plea was not knowing, intelligent and voluntary.
Motions to Vacate are governed by a one-year statute of limitations, generally running from expiration of the time for an unsought direct appeal. 28 U.S.C. § 2255(f); Clay v. United States, 537 U.S. 522, 527 (2003). A federal defendant generally has 14 days from entry of judgment to appeal. Fed. R. App. P. 4(b)(1)(A)(i). Accordingly, Movant had through May 23, 2019 to appeal, and her one year expired one year later, on May 23, 2020. Her original, unsigned and undated Motion to Vacate was not filed until January 9, 2023. Respondents have not raised a statute of limitations defense. Because Movant clearly waived her right to the instant proceedings, the undersigned declines to raise a statute of limitations issue sua sponte. See United States v. Colasanti, 787 Fed.Appx. 973 (9th Cir. 2019) (approving of sua sponte consideration in 2255) (citing Day v. McDonough, 547 U.S. 198, 202 (2006) (sua sponte consideration in 2254).)
Reply - On September 11, 2023, Movant filed a Reply (Doc. 18). Movant argues she did not admit to the crime in Count 4, her plea was involuntary, and that she is innocent, and should be sentenced to only 10 years.
III. APPLICATION OF LAW TO FACTS
Respondents argue that Movant has waived her right to file the instant Motion to Vacate. Movant's plea agreement included a waiver of “any right to file.. .any collateral attack...that challenges the conviction.. .the entry of judgment against the defendant, or any aspect of the defendant's sentence.. .including but not limited to.. .motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions).” (CR Doc. 78, Plea Agreement at ¶ 6.) The present Motion to Vacate is just such a collateral attack.
Enforceability of Waivers - The Ninth Circuit regularly enforces "knowing and voluntary" waivers of appellate rights in criminal cases, provided that the waivers are part of negotiated guilty pleas, see United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994), subject to limited exceptions not applicable here, see United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (identifying Rule 11 violation, contrary advice by judge on waiver, sentence outside agreement, and illegal sentence). Similarly, the right to collateral review may be waived. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Such waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996). Moreover, the defendant's rights to challenge any sentencing errors may be explicitly waived. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). Further, where a waiver specifically includes the waiver of the right to attack a sentence, then it also waives “the right to argue ineffective assistance of counsel at sentencing.” U.S. v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). Granted, there are some flavors of errors at sentencing that are not waivable. See e.g. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (sentence violates the terms of the plea agreement); United States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir.1995) ("sentencing error could be entirely unforeseeable and therefore not barred"); United States v. Jacobson, 15 F.3d 19 (2nd Cir.1994) (sentencing disparity among co defendants based entirely on race); United States v. Marin, 961 F .2d 493, 496 (4th Cir.1992) (sentence in excess of maximum statutory penalty or based on a constitutionally impermissible factor such as race). Here, however, Movant does not assert any such error at sentencing.
Knowing and Voluntary Requirement - It is true that to be enforceable, such waivers must be made “knowingly and voluntarily.” United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994).
To be sure, Movant asserts her plea was not knowingly and voluntarily made. However, the Supreme Court has held that where “a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases....[A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].” Hill v. Lockhart, 474 U.S. 52, 5657 (1985) (internal quotation marks and citations omitted).
Here, Movant makes no assertion that her counsel was ineffective in advising her on her plea. Accordingly, she fails to show her plea was not knowingly and voluntarily made.
Respondent argues a claim that a guilty plea was not knowing and voluntary is procedurally defaulted if not raised on direct appeal, citing Bousley v. United States, 523 U.S. 614, 621 (1998). (Response, Doc. 16 at 9.) However, Bousley predated Massaro v. United States, 538 U.S. 500 (2003) which held that “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Id. at 509.
No Facts to Support Claim of Deficient Performance - Even if this Court could somehow liberally construe Movant's allegations as claims of ineffective assistance in advising her on her plea, such claims would be without merit.
To establish a claim of ineffective assistance of counsel with respect to a guilty plea, Movant bears the burden of establishing both: (1) that her attorney's performance was deficient, i.e. it fell below an objective standard of reasonableness; and (2) prejudice: that absent her attorney's incompetence, Movant would rationally have rejected the plea agreement and would either have gone to trial or received a better plea bargain. United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022).
In making these determinations, Movant's assertions that she does not now understand various aspects of her plea, etc. are irrelevant. What is relevant is Movant's understanding at the time of the plea.
Movant alleges she was unaware at the time why she had been brought to court, did not know what was taking place, and did not understand her rights.
But at the plea proceeding, Movant represented to the Court that she: had completed the ninth grade in school; was not taking anything that would make it difficult for her to understand; had read, understood and signed the plea agreement; had enough time to discuss it with her lawyer, and her lawyer answered her questions about it; had no one forcing or threatening her to plead guilty; understood the charges, the possible penalties, the application of the Sentencing Guidelines, and the stipulated sentence and possible restitution; understood her opportunities to withdraw from the plea, and the waiver of her appeal and collateral attack rights; understood the requirement for supervised release on conditions; was satisfied with her lawyer's work; understood her rights to a jury trial and the elements the Government would have to prove to convict; understood her rights to confrontation, to call witnesses, and to remain silent; and understood her guilty plea gave up such rights. Movant asserted she had no questions, and understood everything that had been discussed. (Response, Doc. 16, Exh. A, R.T. 1/23/19 at 4-11.) Movant proceeded to plead guilty, and to admit to the elements of the offense, pausing at the first question to consult with counsel before doing so. (Id. at 11-12.)
In contrast, Movant now offers only bald assertions of not understanding essentially anything that was transpiring at the time of plea.
“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.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also Fontaine v. United States, 411 U.S. 213, 215 (1973); Chizen v. Hunter, 809 F.2d 560, 563 (9th Cir. 1986); Reed v. United States, 441 F.2d 569, 572 (9th Cir. 1971). Thus, a reviewing court is entitled to credit a defendant's testimony at the Rule 11 hearing over even her subsequent affidavit to the contrary. Cortez v. United States, 337 F.2d 699, 702 (9th Cir.1964). The undersigned finds Movant's testimony at the Rule 11 hearing credible, and thus concludes Movant's current conclusory, unsworn assertions of not understanding not credible.
Movant complains that counsel did not take the case to trial, and that she was innocent. But counsel had no reason to take the case to trial, given Movant's guilty plea. To the extent Movant intends to argue counsel should have counseled her to proceed to trial, rather than plead guilty, Movant fails to support that assertion with any facts. For example, Movant offers no credible evidence available to trial counsel to support Movant's claims of innocence, no elements of the offenses which the prosecution could not support with sufficient evidence, or legal defenses which would justify advice to forego the advantages of the plea agreement. At most, Movant conclusorily insists on her innocence, conclusorily asserts a lack of sufficient evidence, conclusorily asserts a lack of motive (Motion, Doc. 11 at 10-12), and conclusorily asserts that footprints were not hers and she is “not a wonmen [sic]” (Reply, Doc. 18 at 1). “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Moreover, conclusory allegations in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980).
To the extent that Movant simply challenges counsel's handling of the presentation of a defense, the claim is waived by her collateral-attack waiver. United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022).
No Facts to Show Prejudice - Moreover, Movant must also establish the required prejudice from deficient advice to plead guilty, by demonstrating a reasonable probability "that but for counsel's errors, [she]he would either have gone to trial or received a better plea bargain." U.S. v. Howard, 381 F.3d 873, 882 (9th Cir. 2004). The Court must assess the circumstances surrounding the case to determine if the petitioner's allegation that he would have proceeded to trial is plausible. See United States v. Keller, 902 F.2d 1391, 1394-95 (9th Cir. 1990) (defendant failed to show prejudice because he entered plea as alternative to long trial, possible conviction on more serious charges and a longer sentence). Here, Movant makes no allegation that with different (non-deficient) advice she would have opted to proceed to trial.
The undersigned finds no reason to find a reasonable probability she would have. Movant faced up to a sentence of life in prison on only the one count. (Exh. A, R.T. 1/13/29 at 6.) Apart from her bald assertions of innocence, Movant proffers no reason to not expect conviction on the other counts of the indictment, with attendant substantial sentences. By pleading guilty, Movant obtained the dismissal of the other charges and a stipulated sentence of only 35 years. In these circumstances, the undersigned finds no reasonable probability that counseled fully and properly, Movant would have chosen to plead not guilty and to proceed to trial.
Based on the foregoing, the undersigned finds no ineffective assistance of counsel, and thus must conclude that Movant's guilty plea, and waiver of her collateral attack rights was knowingly and voluntarily made.
Therefore, Movant's waiver is enforceable, and Movant's Motion must be dismissed with prejudice.
Because Movant's Motion must clearly be dismissed under her waiver, the undersigned does not reach Respondents other defenses that Movant's claims of actual innocence are procedurally defaulted, and her claims of insufficient evidence are conclusory.
IV. CERTIFICATE OF APPEALABILITY
A certificate of appealability (“COA”) must be issued if Movant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Movant's Third Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 11) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This 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.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”