Opinion
No. 2:07-cr-0018 WBS DAD P
06-18-2014
UNITED STATES OF AMERICA, Respondent, v. GLORIA GIANNINI, Movant.
FINDINGS AND RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. In 2010, following her entry of a guilty plea, movant was convicted of one count of wire fraud in violation of 18 U.S.C. § 1343. She now seeks post-conviction relief on the grounds that her trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.
This motion was assigned, for statistical purposes, the following civil case number: No. 2:13-cv-1266 WBS DAD P.
I. Background
In January, 1994, movant pled guilty to bank fraud charges in the United States District Court for the Northern District of Texas. (Movant's Opening Brief on Appeal (hereinafter AOB), 2010 WL 6834305, at *5.) After serving the term of imprisonment imposed as a result of that conviction, movant was released and began serving a term of supervised release. (Id.; ECF No. 111 at 7.) Supervision was later transferred to the Northern District of California. (ECF No. 111 at 7.)
In 2002, movant was charged in the United States District Court for the Northern District of California with eighteen separate violations of the terms of her supervised release. (AOB at 5; ECF No. 111 at 7.) On January 10, 2005, movant admitted one of the charged violations. (AOB at 5.) At the admission hearing, the prosecutor stated the terms of the parties' agreement on the record and represented that the government would not "pursue any other charges arising out of the investigation that led to the filing of the supervised release petition." (Id.; see also ECF No. 105 at 17.) Movant was then sentenced to an additional 21 months in prison for violating the terms of her supervised released. (AOB at 5.) Movant served that additional time and was released from confinement on May 10, 2006. (Id.)
In January of 2007, movant was arrested on fraud charges brought against her in the Eastern District of California. (AOB at 5; ECF No. 105 at 17.) That indictment alleged that petitioner devised a scheme to defraud a Robert L. Andes in connection with a purported investment deal. (ECF No. 105 at 17; AOB at 7.) The indictment charged forty counts of wire fraud in violation of 18 U.S.C. § 1343 and a scheme spanning the time period from December of 2001 to at least August 2006. (Id.) When she was arrested, movant told FBI agents that the allegations contained in the Eastern District indictment had been resolved in connection with the supervised release violation proceedings in the Northern District of California, described above. (ECF No. 105 at 17, 50.)
After first being represented by an assistant federal defender in the Eastern District, movant eventually obtained representation by appointed panel attorney Joseph J. Wiseman. Movant also told attorney Wiseman that the charges contained in the Eastern District indictment had been resolved in the Northern District case. (ECF No. 105 at 17, 74; AOB at 7.) In response and at movant's request, attorney Wiseman examined the violation petition filed in the Northern District case. (ECF No. 105 at 75.) He concluded that the proceedings in the Northern District "would have no impact on the government's ability to bring charges against [movant] here in [the Eastern District]." (Id. at 78.) His opinion in this regard was based on: (1) his experience that it was "very difficult" for a prosecutor in one district to "bind a district that's not part of the proceedings;" (2) the fact that the allegations of the Eastern District indictment concerned events that occurred after the events alleged in the Northern District matter; and (3) his opinion that the supervised release violations alleged in the Northern District matter were "more . . . of a routine procedural or technical violation of her terms of supervised release," as opposed the "substantive crime" that movant was charged with in the Eastern District indictment. (Id. at 76-77.) Attorney Wiseman considered filing a motion to dismiss the Eastern District indictment on the grounds that it was precluded by the supervised release violation proceedings in the Northern District but concluded that such a motion would not succeed. (Id. at 79.)
Movant subsequently discharged panel attorney Wiseman as her counsel of record and retained attorney David Silber to represent her in the Eastern District prosecution. (AOB at 7.) Attorney Silber was aware that movant had expressed her belief that the new Eastern District charges had been resolved by the as part of the supervised release violation proceedings in the Northern District. (ECF No. 105 at 109.) Attorney Silber asked attorney Wiseman about the impact of the Northern District supervised release violation resolution on the Eastern District charges. (ECF No. 105 at 81.) Attorney Wiseman informed attorney Silber that "the resolution of [movant's] Northern District problems had nothing to do with the present case in the Eastern District." (Id.) Attorney Silber investigated the matter further by making telephone calls to movant's probation officer, but he was not able to speak with the probation officer during the time he represented movant. (Id. at 109.) Attorney Silber formed the opinion that the supervised release violations alleged in the Northern District were not the same as the new wire fraud charges alleged in the Eastern District indictment. (Id. at 109, 112-13.) Silber informed movant that he did not believe it to be viable to move to dismiss the new indictment on the grounds that those charges had been resolved in the Northern District supervised release violation proceedings. (Id. at 115.) Attorney Silber's opinion in this regard was based on his conversations with attorney Wiseman and the Assistant U.S. Attorney prosecuting the Eastern District case. (Id.)
On August 29, 2008, movant pled guilty to Count 1 of the Eastern District indictment, in which she was charged with a violation of 18 U.S.C. § 1343 (wire fraud) in connection with a scheme to defraud Robert Andes. (ECF No. 42.) On January 23, 2009, the district court granted attorney Silber's motion to withdraw as counsel of record for movant and appointed panel attorney Krista Hart to represent movant. (ECF No. 47.) On May 7, 2009, movant, proceeding through her newly appointed counsel, filed a motion to withdraw her guilty plea. (ECF No. 59.) Therein, movant alleged that her guilty plea was invalid because her previous retained counsel Silber had "failed to adequately investigate the case" and therefore gave her the erroneous advice that the proceedings in the Northern District of California did not preclude the filing of the charges set forth in the Eastern District of California indictment. (Id. at 1.) Citing the decision in Strickland v. Washington, 466 U.S. 668 (1984), movant argued that attorney Silber had rendered ineffective assistance of counsel in advising her whether to plead guilty to the new charges that had been brought against her. Id. at 4-7.) After an evidentiary hearing, at which both attorneys Wiseman and Silber testified, the trial court denied movant's motion to withdraw her guilty plea. (ECF No. 87.)
Following the denial of her motion to withdraw her guilty plea, movant filed a motion to dismiss the indictment on the ground that the new charges filed in the Eastern District of California violated the Double Jeopardy Clause and constituted a breach of her agreement entered into in the Northern District of California when she admitted that she had violated the conditions of her earlier supervised release term. (ECF No. 81.) Movant argued that her prosecution in the Eastern District of California was barred as a result of her previously entered admission of the supervised release violation in the Northern District of California. (Id.) The trial judge denied movant's motion to dismiss, concluding that: (1) movant had waived her double jeopardy claim by pleading guilty to the wire fraud charge in this court; (2) the Double Jeopardy Clause did not apply because the charges to which movant pled guilty in the Eastern District were not resolved by her admission of a supervised release violation in the Northern District matter; and (3) the bringing of the indictment in the Eastern District did not constitute a breach of the agreement movant entered into in the Northern District supervised release violation matter. (ECF No. 90, 92.)
On May 26, 2010, movant was sentenced to the custody of the United States Bureau of Prisons for a total term of imprisonment of 105 months. (ECF No. 97.) Thereafter, movant filed a timely appeal of her judgment of conviction. (ECF No. 94.) She characterized one of the issues she presented in her opening brief on appeal as follows: "Whether Ms. Giannini received ineffective assistance of counsel when counsel failed to conduct an adequate investigation and thus advised her to plead guilty based on incorrect and incomplete information." (AOB at 8.) Movant argued on appeal that "based on the ineffective assistance of counsel, the plea should have been withdrawn." (Id.) She also claimed, among other things, that the trial court erred when it denied her motion to withdraw her guilty plea. (Id. at 12.) The Ninth Circuit Court of Appeals construed these arguments as claims that the trial court had erred in denying movant's motions to withdraw her guilty plea and to dismiss the indictment. United States v. Giannini, 441 Fed. Appx. 500, 501 (9th Cir. July 5, 2011). That court rejected movant's arguments, as so construed, reasoning as follows:
Although "[a] district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any fair and just reason," United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988), a district court can also consider whether withdrawal of that plea would result in prejudice to the government, see United States v. Vasquez-Velasco, 471 F.2d 294, 294 (9th Cir. 1973). Because one of the government's key witnesses had died, granting Giannini's request to withdraw her plea would have resulted in prejudice to the government. Accordingly, the district court did not abuse its discretion when it denied her motion to withdraw her plea. Finally, the district court did not err in finding that Giannini's earlier plea agreement's reference to the previous "investigation" unambiguously limited additional prosecution only for the specific crimes at issue in that case. See United States v. Clark, 218 F.3d 1092, 1096 (9th Cir. 2000). The 2005 plea agreement did not immunize Giannini for the fraud in which she was engaged. Moreover, as the district court found, "the fraud for which the defendant was indicted . . . was not reasonably encompassed in the Northern District investigation" and "includ[ing] the $4 million fraud charged in this case is 'patently unreasonable'" (quoting Clark, 218 F.3d at 1096-97). The district court did not err in subsequently concluding that the present indictment was not barred by the earlier plea agreement.Id. at 501-02. The Ninth Circuit did not directly address on appeal movant's argument that her trial counsel in this case rendered ineffective assistance in connection with her guilty plea.
The undersigned notes that the sole victim of movant's wire fraud scheme, Mr. Andes, passed away in April of 2009.
II. Applicable Law
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. United States v. Monreal, 301 F.3d 1127, 1130 (9th Cir. 2002). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.") Relief is warranted only where a petitioner has shown "a fundamental defect which inherently results in a complete miscarriage of justice." Davis, 417 U.S. at 346. See also United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). See also United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Withers, 638 F.3d at 1062; McMullen, 98 F.3d at 1159. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
III. Movant's Claims
A. Description of Movant's Claims
In her first ground for relief, movant claims that her trial counsel violated her Fifth Amendment right to due process and her Sixth Amendment right to the effective assistance of counsel by advising her to plead guilty without conducting sufficient investigation into the facts of her case. (ECF No. 105 at 4.) Specifically, she argues that:
Trial counsel failed to investigate a legal defense, they failed to obtain a transcript of the oral plea agreement in the Northern District of California. Counsel justified this failure by convincing themselves the plea agreement in the Northern District could not legally bind the government in the Eastern District. The Ninth Circuit Court of Appeals ignored this issue, it departed from the accepted and usual course of judicial proceedings.(Id. at 19-20.)
The charges at issue in this case were addressed and resolved as part of the plea agreement in the Northern District of California. Because of this, the government in the Eastern District of California was precluded from prosecuting Ms. Giannini for conduct which was addressed in the plea agreement in the Northern District. Neither appointed counsel nor subsequent retained counsel obtained the transcript of the oral plea agreement from the Northern District of California. Therefore, neither counsel was able to accurately and competently advise Ms. Giannini to plead guilty.
Movant notes that "in the Ninth Circuit Court of Appeals, [she] argued that she was denied her constitutional right to the effective assistance of counsel when neither appointed counsel nor retained counsel investigated the terms of the plea agreement in the Northern District." (Id. at 21.) She argues that the Ninth Circuit failed to address this issue in its decision affirming her judgment of conviction on appeal. (Id.) Movant contends that the "Ninth Circuit's failure to address the constitutional claim so far departed from the accepted and usual course of judicial proceedings, this Court should exercise its supervisory power to address the constitutional claim." (Id. at 22.)
Movant also explains that in the brief submitted in opposition to her petition for writ of certiorari, respondent argued that the Ninth Circuit "did not address petitioner's Sixth Amendment claim because petitioner did not advance it." (Id. at 19.) In her second ground for relief here movant argues that, if respondent's position that she did not raise this issue on appeal is correct, then her appellate counsel rendered ineffective assistance as well in failing to raise her ineffective assistance of trial counsel claim on appeal. (Id. at 5.) She also argues, "if the government should assert or if this Court should find that the issue in Ground One is defaulted because it could have, but was not raised on direct appeal, then appellate counsel was ineffective for failing to raise it." (Id. at 32.)
B. Law Applicable to Claims of Ineffective Assistance of Counsel
The clearly established federal law governing ineffective assistance of counsel claims is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787-88 (2011) (quoting Strickland, 466 U.S. at 687).
A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. See also Richter, 131 S. Ct. at 789 (same). Reviewing courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).
The Strickland standard also applies to claims of ineffective assistance involving counsel's advice during the plea bargain process. Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2009); Hill v. Lockhart, 474 U.S. 52, 58 (1985); Nunes v. Mueller, 350 F.3d 1045, 1052 (9th Cir. 2003). "A defendant has the right to make a reasonably informed decision whether to accept a plea offer." Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (citations omitted). Trial counsel must give the defendant sufficient information regarding a plea offer to enable her to make an intelligent decision. Id. at 881. "[W]here the issue is whether to advise the client to plead or not 'the attorney has the duty to advise the defendant of the available options and possible consequences' and failure to do so constitutes ineffective assistance of counsel." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981)). The relevant question is not whether "counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970) (holding that all defendants facing felony charges are entitled to the effective assistance of competent counsel). A criminal defendant may attack the voluntary and intelligent character of his/her plea by showing that he/she received incompetent advice from counsel in connection with the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973) (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 not within the standards set forth in McMann"); Mitchell v. Superior Court for City of Santa Clara, 632 F.2d 767, 769-70 (9th Cir. 1980).
Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In order to show prejudice in cases where a defendant claims that ineffective assistance of trial counsel led the defendant to accept a plea offer instead of proceeding to trial, a defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.
C. Analysis
As explained above, on appeal movant argued, among other things, that her trial counsel rendered ineffective assistance by advising her to plead guilty to the wire fraud charge in this district without conducting an adequate investigation into whether her agreement in the Northern District of California by which she admitted a supervised release violation precluded the indictment subsequently filed against her in the Eastern District of California. That is the same claim she raises in Ground One of the instant motion. Of course, issues disposed of on a previous direct appeal are not reviewable in a subsequent § 2255 proceeding. Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) ("The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a [§] 2255 motion."); United States v. Scrivner, 189 F.3d 825, 828 (9th Cir.1999) ("In this case, Scrivner's Fifth Amendment claim was presented to [the Ninth Circuit] on direct appeal in Scrivner I and rejected on the merits. That decision is binding on our resolution of the case."); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (same).
Here, the Ninth Circuit Court of Appeals rejected movant's arguments on the basis that the district court did not abuse its discretion in denying her motion to withdraw her guilty plea in this case because to do so would have resulted in undue prejudice to the government in light of the intervening death of Mr. Andes, its key witness. It is true that the Ninth Circuit did not specifically address movant's argument that her trial counsel provided her ineffective assistance in connection with her guilty plea. However, the fact that the claims raised by movant on appeal were stated and disposed of by the Court of Appeals in different terms than those articulated by movant "is of no significance." United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979) (movant's claim was not reviewable by way of a § 2255 motion because it had been raised on appeal, even though appellate court phrased the claim in different terms than the manner in which it was presented on appeal) (citing Sanders v. United States, 373 U.S. 1, 16 (1963)). See also Frisbee v. United States, No. 07-00533 HG-BMK, 2008 WL 2355704 (D. Hawaii June 9, 2008) (same). What is significant is that movant had a full opportunity to, and did, raise her claims of ineffective assistance of counsel on direct appeal and that she received a ruling rejecting her challenge to her judgment of conviction. See Withrow v. Williams, 507 U.S. 680, 721 (1993) ("Thus, a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim" and if the claim was raised on direct review, "the habeas court will not readjudicate it absent countervailing equitable considerations."). Because movant received a ruling by the Ninth Circuit on her appeal in which she argued that her counsel provided ineffective assistance, her claim of ineffective assistance of trial counsel is barred in this § 2255 motion.
Movant's attempt to cast the issue posed by her pending §2255 motion as whether she was provided ineffective assistance of counsel when she was advised to enter a plea of guilty to wire fraud in this case is unavailing. At bottom, her claim continues to be that her prosecution in this court was barred be her earlier supervised release violation resolution. That contention was squarely addressed and rejected by the Ninth Circuit on appeal. Accordingly, no amount of defense investigation or motions practice focused on that issue would have made any difference.
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In any event, movant's claim of ineffective assistance of trial counsel also fails on the merits. As set forth above, the Ninth Circuit concluded that movant's plea agreement with respect to her supervised release violation in the Northern District of California did not preclude her indictment in the Eastern District of California. Giannini, 441 Fed. Appx. at 501-02. Clearly this issue may not be re-litigated in the context of a §2255 motion. See Odom, 455 F.2d at 160; Redd, 759 F.2d at 700-01. In light of that fact, trial counsels' advice to movant did not constitute deficient performance.
Nor can movant demonstrate prejudice with respect to her ineffective assistance claim. Because movant's trial counsel correctly advised her that a motion to dismiss the indictment on the basis that the Eastern District indictment was precluded by the Northern District plea agreement would fail, she cannot show a reasonable probability that, but for counsel's alleged failure to investigate, she would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. In short, movant would have received the same advice from her various lawyers even if they had conducted a more thorough investigation into the potential impact of the Northern District plea agreement.
Movant's second claim for federal habeas relief on the grounds that she received ineffective assistance from her appellate counsel is also unavailing. The government does not assert, and this court has not found, that movant failed to raise her claim of ineffective assistance of trial counsel on direct appeal. Further, as set forth above, movant concedes that on appeal she raised the argument that "she was denied her constitutional right to the effective assistance of counsel when neither appointed counsel nor retained counsel investigated the terms of the plea agreement in the Northern District." (ECF No. 105 at 21.) Accordingly, movant's argument that her appellate counsel rendered ineffective assistance in failing to raise this issue on appeal lacks a factual basis and should be rejected.
IV. Conclusion
Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that movant's motion pursuant to 28 U.S.C. § 2255 be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In her objections movant may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
__________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE
DAD:8:
Giannini18.2255