Opinion
No. CV-17-4020-PHX-DGC (DMF) No. CR-15-1492-PHX-DGC
10-30-2018
United States of America, Plaintiff/Respondent, v. Don Milton Burns, Defendant/Movant.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR U.S. DISTRICT JUDGE:
Don Milton Burns ("Movant") is an inmate detained at the Phoenix, Arizona Federal Correctional Institution. On October 30, 2017, he filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (hereinafter "Motion"). (Doc. 1) Respondent filed its response (Doc. 8), after which Movant filed a reply (Doc. 14). For the reasons set forth below, the undersigned Magistrate Judge recommends the Court deny the Motion and dismiss it with prejudice.
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona. Citations to documents within Movant's criminal case are denoted "CR Doc." Citations to documents in Movant's instant § 2255 matter are denoted "Doc."
I. BACKGROUND
On December 1, 2015, Movant was indicted on a count of second degree murder pursuant to 18 U.S.C. §§ 1153 and 1111 (CR Doc. 10 at 1). Subsequently, Movant waived prosecution by indictment and consented to proceed under information charging him with a count of Voluntary Manslaughter pursuant to 18 U.S.C. §§ 1153 and 1112. (CR Docs. 35, 36) Movant entered into a plea agreement in connection with a change of plea hearing held by this Court on August 5, 2016. (CR Docs. 39, 51) The plea agreement included a factual basis that Movant admitted to and conceded could be proven by Respondent beyond a reasonable doubt, as follows:
On or about March 26, 2015, on the Salt River Pima-Maricopa Indian Reservation, in the District of Arizona, the defendant and the victim named in the indictment engaged in a verbal argument that escalated into a physical altercation. During the said physical altercation, the victim threatened the defendant's life. The defendant, then in the heat of passion adequately provoked by fear and anger, and with extreme disregard for human life, recklessly assaulted the victim about [the] head and body causing multiple serious injuries, including multiple fractures to the victim's skull and spine, resulting in the victim's death.(CR Doc. 51 at 6-7)
Movant was sentenced on November 1, 2016. (CR Doc. 48) Applying an upward departure from the sentencing guideline range, this Court imposed a sentence of 160 months' imprisonment to be followed by a term of 3 years of supervised release. (CR Doc. 54 at 1)
II. MOVANT'S HABEAS GROUNDS
Movant asserts four grounds of ineffective assistance of counsel ("IAC"). In Ground 1, Movant argues his counsel failed to adequately investigate "the proper charges that should have been brought" in his case, given that he had "acted in self-defense from an attack initiated by the deceased." (Doc. 1 at 5) Movant contends in Ground 2 that counsel failed to "investigate the mitigating factors in this case" and further failed to "properly investigate [the] law affecting the Court's determination of proper application of a sentencing variance(s)." (Id. at 6) In Ground 3, Movant complains that counsel did not make him properly aware of "the nature of the charges against him or the impact on the plea agreement he ultimately signed." (Id. at 7) Movant's Ground 4 arguments are that counsel was ineffective at his sentencing hearing because he: (1) did not allow Movant "proper allocution"; (2) did not object to the Court's use of "otherwise mitigating factors" against Movant; (3) did not object to the Court's upward departure pursuant to U.S.S.G. § 4A1.3; and (4) did not object to the Court's application of a sentencing variance (Id. at 8).
III. MOVANT'S PLEA HEARING AND SENTENCING HEARING
Movant's claims of IAC center on his counsel's representation involving his plea agreement, his change of plea hearing, and his sentencing hearing.
A. Change of plea hearing
At his change of plea hearing before a Magistrate Judge, Movant attested under oath that he read through his plea agreement carefully, line by line with his counsel, and that he understood its terms. (CR Doc. 75 at 6) He further stated that his counsel had explained the elements of the crime of voluntary manslaughter with him and that he understood these elements. (Id.) He attested his counsel had done a good job for him "so far" and that he was satisfied with his counsel's representation. (Id. at 7) On questioning from the Magistrate Judge, Movant declared that nothing had been promised to him other than what was contained in the plea agreement. (Id. at 8) The judge advised Movant that the maximum sentence he could receive by pleading to the crime of involuntary manslaughter was 15 years' imprisonment, and Movant stated that he understood. (Id. at 9-10)
The judge explicitly discussed language in the plea agreement providing that there were no agreements "with regard to the final sentence in this case," and that the parties were "free to make any sentencing recommendations to the Court that they believe are appropriate." (CR Doc. 75 at 10) Movant said he understood. (Id.)
Movant verified that his counsel had explained to him the United States Sentencing Guidelines and sentencing factors the Court would need to consider at the time of his sentencing. (CR Doc. 75 at 11) Movant also agreed that his counsel had discussed how the federal sentencing guidelines and factors worked and might be applied to him in his case. (Id. at 12) The judge explained that his counsel would make a recommendation about what Movant's sentence should be, but that the sentencing judge would not be bound to follow such a recommendation. (Id. at 13) Movant attested that he understood. (Id.) Movant specifically stated he understood that the Court could sentence him to a term of up to 15 years' imprisonment, and that after considering the federal sentencing guidelines and sentencing factors, the Court would be free to impose "any reasonable sentence up to" 15 years' imprisonment. (Id.) The Magistrate Judge asked Movant whether his counsel had explained his "best estimate" about what sentence Movant might receive. (Id. at 18) The judge then cautioned Movant that the Court would not be bound by his counsel's estimate, and Movant said he understood. (Id.)
B. Sentencing hearing
At his sentencing hearing, the Court discussed Movant's objection to an upward departure based on U.S.S.G. § 4A1.3 because of an "inadequate criminal history computation." (CR Doc. 71 at 5) The Court concluded that his second degree murder conviction, which the Court deemed as "the most significant event in his criminal history," qualified for no criminal history points. (Id.) The Court also noted that Movant's 1997 assault conviction similarly received no criminal history points. (Id.) The Court sustained Movant's objection to an upward departure under U.S.S.G. section 4A1.3 on the basis of his second degree murder and 1997 assault convictions. (Id. at 5-6) Nevertheless, the Court advised Movant that it deemed a number of facts related to these convictions relevant in sentencing and that it would "appreciate [his] thoughts on those." (Id. at 6) The Court confirmed with Movant's counsel that "as calculated in the presentence report," Movant's offense level of 26, coupled with a category III criminal history, produced a federal guideline sentencing range of 78 to 97 months. (Id.)
After counsel for Respondent advised the Court that the victim's mother and sister wished to address the Court, Movant's counsel expressed no preference on the order such testimony was presented. (Id. at 7) Movant's counsel noted that the victim attacked Movant and threatened his life, and that Movant was therefore "adequately provoked." (Id. at 8) At the same time, counsel observed that the parties agreed Movant had recklessly assaulted the victim and caused his death. (Id.) Movant's counsel advised the Court that Movant suffered "a profound sense of guilt" that the "altercation accelerated unnecessarily to the point that it resulted in the victim's death." (Id.)
Movant's counsel recognized the Court was "at liberty" to consider 18 U.S.C. § 3553 factors to arrive at a fair and appropriate sentence. (Id. at 10) In arguing against any sentence in excess of the high end of the applicable sentencing guideline range, Movant's counsel emphasized that Movant would be about sixty years old at the time of his release, and that his conditions of release prohibited him from alcohol and illegal drug use. (Id. at 11-12)
The Court invited Movant to speak, which he did. (Id. at 12-13) He addressed the victim's mother and apologized to her, stating that what happened was not "completely" his fault, and also had not been intended. (Id. at 13) He apologized for "what happened and [his] part in it." (Id.)
The victim's sister spoke briefly, opining that a hard childhood is not an excuse to take another's life, that she did not believe Movant was remorseful, and that she thought Movant should be sentenced to 15 years' imprisonment. (Id. at 13-14) The victim's mother also made a short statement which included her belief that Movant should receive the maximum time possible of 15 years' imprisonment, during which time she hoped Movant would learn a lesson. (Id. at 14-15)
The Court explained that it had considered the factors set forth in 18 U.S.C. § 3553(a) to arrive at Movant's sentence. (Id. at 17) The Court addressed the circumstances and nature of the offense and Movant's characteristics and history, as required by section 3553(a)(1). (Id. at 18-19) Initially, the Court found the offense to be particularly brutal, as it involved multiple blunt force trauma and stab wounds to the victim's head and neck, and defensive stab wounds to the victim's hands, while Movant "came away with little injury." (Id. at 18) Additionally, the Court found "relevant and very concerning" Movant's history of convictions for: (1) assault with a deadly weapon in 1977 in which he held a victim at knifepoint and cut her arm; (2) a second degree murder conviction involving two victims; and (3) an aggravated assault conviction in 2004, in which he beat an individual. (Id. at 18-19) The Court also found very concerning that Movant was in his fifties and was again involved in a serious, violent charge. (Id. at 19) Further, the Court found relevant that Movant's drinking "and other forms of intoxication" were repeatedly associated with his criminal history. (Id.) The Court also recognized that Movant had taken positive actions in his life, such as obtaining a GED, qualifying for a commercial driver's license, and working as a driver for some time. (Id.)
The Court concluded that Movant's sentence should reflect that his crime was a very serious one, should promote respect for law, and should also deter Movant and others who "might consider ever engaging in this kind of conduct . . . ." (Id. at 19-20) The Court noted it would arrive at a sentence that would "protect the public from further crimes you might commit." (Id. at 20) Finally, the Court recognized it had considered the guideline range, the need to avoid unwarranted sentencing disparities, and the requirement to consider "any training or medical correctional needs you may have." (Id.)
The Court stated that, considering the § 3553(a) factors, it was "firmly convinced that the guideline range is not high enough" and that a five level upward variance was appropriate after balancing the negative and positive factors. (Id.) After explaining that this upward variance would take Movant from a sentencing range of 78 to 97 months to a range of 135 to 168 months, the Court concluded that this level "of a variance is needed to accomplish" the statute's requirements addressing the issues of respect for the law, adequate deterrence, protecting the public from Movant's potential future criminal acts, and the seriousness of the offense. (Id. at 21) The Court announced it would give Movant a sentence of 168 months, with eight months' credit for time served in tribal custody, for a total of 160 months of incarceration. (Id.) The Court recommended Movant be permitted to enroll in the Bureau of Prisons' residential drug abuse treatment program. (Id.)
IV. DISCUSSION
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Movant must show: (1) deficient performance, where counsel's representation fell below the objective standard for reasonableness; and (2) prejudice, occurring when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. A pleading defendant must prove he was prejudiced from counsel's ineffectiveness by demonstrating a reasonable probability that but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland, 466 U.S. at 694. "To determine the voluntariness of the plea, we look to the totality of the circumstances, examining both the defendant's 'subjective state of mind' and the 'constitutional acceptability of the external forces inducing the guilty plea.'" Doe v. Woodford, 508 F.3d 563, 570-72 (9th Cir. 2007) (citation omitted). Because "it is difficult to probe the highly subjective state of mind of a criminal defendant, the best 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).
A. Ground 1: IAC - failure to investigate evidence underlying the charge
Movant asserts that his counsel erred by not investigating: (1) his victim's violent nature; (2) whether Movant had severe bruising to his chest; or (3) any potential evidence suggesting that the victim had persisted in taking offensive actions immediately preceding his death. (Doc. 1 at 17-18) Movant argues that had his counsel conducted a thorough investigation of the victim's history, he conceivably could have uncovered evidence that the victim's mother and sister refused him a place to live, that the victim may also have carried weapons other than the knife used in his fight with Movant, that Movant had been bruised on his chest during the struggle, and that the victim may have continued to attack Movant even after Movant had taken away the victim's knife and had already inflicted serious injury on him. (Doc. 1 at 18-19) It appears that Movant contends such evidence could have been used to rebut a conclusion that the injury he inflicted on the victim was not "brutal" under the circumstances, and to counter the conclusion that Movant had emerged from the fight with only slight injury. This argument more accurately addresses evidence relied on by the Court in deciding to apply an upward variance, rather than on evidence supporting the charge to which he had pleaded.
In Strickland, the Supreme Court declared that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691. The evidence Movant suggests his counsel may potentially have uncovered through further investigation is primarily speculative. Given this circumstance, the investigation Movant describes would not have been reasonable. Additionally, Movant fails to establish prejudice. "If the defendant has pleaded guilty, 'in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Mahrt v. Beard, 849 F.3d 1164, 1171 (9th Cir. 2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Movant does not make such a showing.
B. Ground 2: IAC - failure to investigate mitigating factors
Movant contends that he did not understand language in the plea agreement providing that there was "no agreement regarding the final sentence in the case." (Doc. 1 at 19) He argues this language gave the government freedom to "say or do almost anything they wanted and no one could stop them even though Burns was the only living person that could identify precisely what happened." (Id.) While Movant recognizes that his counsel objected to Respondent's positions on Movant's problems with alcoholism, issues from his childhood, and other personal difficulties, he argues counsel did not do enough to ensure he had conducted a thorough investigation of Movant's background. (Id.)
At his change of plea hearing, the Magistrate Judge specifically inquired as to whether Movant understood that the parties were "free to make any sentencing recommendations to the Court that they believe are appropriate." (CR Doc. 75 at 10) Movant stated that he did understand. (Id.) There is no evidence that Respondent attempted to or was allowed to improperly present evidence to the Court that impacted Movant's sentence. Moreover, the Presentence Investigation Report prepared for the Court included personal and family data describing Movant's childhood and other family circumstances (CR Doc. 47 at 12-13), his medical conditions and treatment (Id. at 13), his mental and emotional health history (Id. at 13-14), his substance abuse history (Id. at 14), and his statement of acceptance of responsibility (Id. at 5). It is clear the Court carefully reviewed this report. (CR Doc. 47) The Court also reviewed Movant's counsel's sentencing memorandum, in which counsel successfully argued against any upward departure pursuant to U.S.S.G. § 5K2.21. (CR Doc. 46 at 2-3) Counsel also urged the Court that upward departure under U.S.S.G. § 4A1.3 was not supported because: (1) Movant did not have sufficient "recent" criminal history suggestive of a "likelihood to recidivate"; (2) he had expressed remorse and conducted himself after his victim's death consistent with the actions of a remorseful person; (3) he experienced a deprived childhood; (4) he had sought to address his addiction issues; and (5) his advancing age made him statistically less likely to reoffend. (Id. at 5-6) Counsel further argued that sentencing Movant to "the maximum statutory term when such a sentence exceeded the high end of the applicable guideline range" by 83 months would be "exceptional and exceedingly rare." (Id. at 7) As noted, the Court sustained Movant's objection to an upward departure under § 4A1.3. (CR Doc. 71 at 5-6) Under these circumstances, Movant fails to demonstrate that his counsel's representation fell below an objective standard for reasonableness.
C. Ground 3: IAC - inadequate information about charges and sentence
Movant complains his counsel provided ineffective assistance when he assured Movant that the Court would not sentence him beyond the Sentencing Guidelines maximum, and failed to adequately explain the potential sentence ranges associated with the crimes of second degree murder, voluntary manslaughter, and involuntary manslaughter. (Doc. 1 at 21) He avers he would never have entered the plea agreement had he understood that "normally mitigating matters such as alcoholism and childhood and teenage crimes" could be used as a basis to greatly increase his sentence. (Id. at 22)
Despite Movant's present argument, he reiterated to the Magistrate Judge at his change of plea hearing that he expressly understood he may be subject to any reasonable sentence up to 15 years' imprisonment. (CR Doc. 75 at 13) Moreover, Movant advised the judge that he understood the Court would not be bound by his counsel's estimate of the sentence Movant might receive. (Id.)
"To establish a claim of ineffective assistance of counsel based on alleged erroneous advice regarding a guilty plea, a petitioner must demonstrate more than a 'mere inaccurate prediction.'" Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986)). A section 2255 movant must demonstrate that defense counsel "grossly mischaracterized" the likely outcome and provided erroneous advice on the effects of going to trial to be entitled to relief based on this type of claim of ineffective assistance of counsel. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (citing Iaea, 800 F.2d at 865).
Movant has not met his burden of establishing that his counsel's performance during sentencing proceedings was either deficient or prejudicial. Movant was informed prior to entering his guilty plea of the potential sentence he could receive and thus cannot establish prejudice from counsel's inaccurate prediction as to his sentence. See Womack v. Del Papa, 497 F.3d 998, 1003-4 (9th Cir. 2007) (defendant did not suffer prejudice where his counsel underestimated the sentence he would receive but where the court advised him at his plea hearing of possible maximum sentence). See also United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (explaining that an erroneous sentence prediction "does not entitle a defendant to challenge his guilty plea"); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (finding that an inaccurate sentence prediction was not prejudicial). In cases where the Ninth Circuit has found gross mischaracterization of a predicted sentence by counsel, the sentence received by the defendant was of a different order of magnitude than that at issue here. See Iaea v. Sunn, 800 F.2d 861, 864, 865 (9th Cir. 1986) (counsel estimated there was a good chance for only probation if defendant took a plea, and no chance he would receive an extended sentence, and defendant was sentenced to life imprisonment); Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994), superseded on other grounds by 28 U.S.C. § 2254(c) (three months' predicted incarceration versus ten years' imposed incarceration).
D. Ground 4: IAC - allocution; use of mitigating factors; upward departure under U.S.S.G. § 4A1.3; and sentencing variance
Movant concedes that he was given the opportunity to speak at his sentencing hearing, but complains that his counsel was ineffective for not arguing that Movant should have been able to speak after the victim's mother and sister made their statements, so that he could rebut their "emotionally charged remarks." (Doc. 1 at 22-23) Movant also argues his counsel should have taken the opportunity to explain that the victim's defensive stab wounds "were caused by [the victim's] continue[d] aggressive actions, despite his taking injury." (Id.) Movant also contends the trial court erred in applying U.S.S.G. § 4A1.3 to provide an upward departure in his sentence based on prior convictions and his associated use of alcohol, and argues that his counsel was ineffective for failing to object to such error. (Id. at 24-25) Similarly, Movant asserts that the trial court erred by using his 2004 aggravated assault conviction as a basis for an upward departure, and argues his counsel was ineffective for failure to object to this alleged error. (Id. at 26-27) Additionally, Movant contends the court's sentencing rulings were largely based on medical evidence and that his counsel was ineffective for not challenging this evidence at his sentencing hearing. (Id. at 28-29)
Movant fails to establish that his counsel's representation as to these issues fell below the objective standard of reasonableness, as is discussed below.
The rule governing a defendant's right to address the Court at sentencing is set forth in Federal Rule of Criminal Procedure 32(i)(4)(A). This rule requires that prior to imposing sentence, the court must "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence... ." Fed. R. Crim. P. 32(i)(4)(A)(ii). This rule does not address the timing of a defendant's statement. As noted, the two witnesses Movant mentions were the victim's sister and mother. The essence of the victim's sister's brief statement was that she did not believe that experiencing a hard childhood gives a person the right to kill someone, that she did not believe Movant was remorseful, and that she hoped the Court would give him the maximum sentence. (CR Doc. 71 at 13-14) The victim's mother testified that she had been upset that Movant was able to plead down from second degree murder to voluntary manslaughter, that she believed Movant should serve the maximum sentenced allowed, and that she regretted she would not get to know her son as she would have liked. (Id. at 14-15) These witnesses' short statements did not introduce new evidence, as they consisted of the witnesses' feelings about the loss of their son and brother, and their beliefs about an appropriate sentence. The presentence report already indicated that the victim's mother did not believe that a maximum sentence of 15 years was adequate. (CR Doc. 47 at 5) Her victim impact statement reiterated this view. (CR Doc. 47-1 at 3) The Court had been informed in Movant's sentencing memorandum and other documents about the "victim's violent history, his release from prison approximately one month before the altercation, the level of methamphetamine concentration in his system, his knife attack on the person of the Defendant, [and] the threat which he presented to the Defendant's life... ." (CR Doc. 46 at 3) Thus, to the extent Movant wished to expound on these issues, they were already before the Court. Movant fails to establish either that counsel provided ineffective counsel or that he suffered prejudice regarding the timing of the victim's relative's statements or the victim's propensity for violence.
Movant's citation to United States v. Yamashiro, 788 F.3d 1231, 1235-36 (9th Cir. 2014) does not support his argument, because Movant's counsel was present when he was allowed to allocate during the sentencing hearing. Moreover, the record does not support Movant's implication that his counsel was not present at that hearing "in mind as well as body." (Doc. 14 at 9)
Moreover, it is plain that Movant's counsel was not ineffective for not objecting further to the Court's upward departure in his sentence pursuant to U.S.S.G. § 4A1.3, because the Court made no such departure. Instead, the Court denied Respondent's request for the departure. (CR Doc. 71 at 5-6) The undersigned perceives no error in the Court's carefully considered and explained application of the 18 U.S.C. § 3553(a) factors used to arrive at a sentence that the Court believed was "sufficient" but not "greater than necessary" to "reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment." United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (citing 18 U.S.C. § 3553(a) and (a)(2)); (CR Doc. 71 at 17-21). Movant's counsel was not ineffective for failing to object to the Court's application of these factors during the sentencing hearing.
Movant also argues that the Ninth Circuit's opinion in United States v. Bad Marriage, 439 F.3d 534 (9th Cir. 2006) indicates that the Court's sentence was excessive. (Doc. 14 at 10) To the contrary, this opinion instructs that the district court had followed the proper procedure in considering the § 3553 factors and imposing a sentence above the advisory Guidelines range, particularly its consideration of the factors addressing the seriousness of the "brutal assault" offense, and the need to protect the public from further crimes perpetuated by the defendant. Bad Marriage, 439 F.3d at 539. This case directly refutes Movant's argument.
Additionally, Movant contends that the Court's "sentencing rulings were based almost solely on medical evidence", and that his counsel was ineffective for not objecting to the use of this evidence. (Doc. 1 at 28-29) Movant's characterization of the Court's reliance on medical evidence is inaccurate. The Court addressed this evidence respecting the factor concerning the nature and circumstances of the crime. The Court also considered numerous other § 3553(a) factors in which the medical evidence was relevant. (CR Doc. 71 at 17-21) Movant's counsel thus did not provide IAC for failing to object to the Court's reference to medical evidence.
E. Evidentiary hearing
The Court will hold an evidentiary hearing on a Movant's Motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]" 28 U.S.C. § 2255(b). The standard for holding an evidentiary hearing is whether the Movant has made specific factual allegations that, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). Here, the record conclusively shows that Movant's counsel did not provide IAC. Thus, an evidentiary hearing is not warranted.
V. CONCLUSION
As is discussed above, the record supports the conclusion that Movant is not entitled to relief because he fails to prove either counsel's deficient performance or prejudice. Strickland, 466 U.S. at 687-88. The undersigned further notes that Movant expressed no reservations regarding his attorney's representation during his guilty plea colloquy or during sentencing. He agreed he was guilty of the offense. Movant's statements are afforded significant weight. See United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) ("[s]tatements 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, 1115 (9th Cir. 2001) (giving "substantial weight" to a defendant's in-court statements in determining whether a guilty plea was voluntary). Movant spoke at sentencing and expressed no reservations regarding his counsel or his agreement. (CR Doc. 75 at 7, 12-13) Movant's plea and sentencing reflect a knowing, intelligent, and voluntary plea. See also Muth v. Fondren, 676 F.3d 815, 821-22 (9th Cir. 2012) (rejecting a movant's challenge to his guilty plea that was contradicted by his sworn statements during the change of plea hearing); United States v. Lunsford, 787 F.2d 465, 466 (9th Cir. 1986) (finding without a hearing that defendant's "guilty plea was entered voluntarily and knowingly" where defendant did not object during plea colloquy or sentencing).
Accordingly,
IT IS RECOMMENDED that Don Milton Burns' Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because Defendant has not made a substantial showing of the denial of a constitutional right.
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. The parties shall have fourteen 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure timely to 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 timely to 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
Dated this 30th day of October, 2018.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge