Opinion
CV 20-1717-PHX-DGC (ESW) CR 17-00841-PHX-DGC
04-21-2022
United States of America, Plaintiff/Respondent, v. Jonathan Frank Davis, Defendant/Movant.
DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Jonathan Frank Davis' “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “§ 2255 Motion”) (Doc. 1). For the reasons explained herein, it is recommended that the Court deny relief without an evidentiary hearing. See Dukes v. United States, 492 F.2d 1187, 1188 (9th Cir. 1974) (“The record shows on its face that the [Section 2255] petitioner was not entitled to relief, and an evidentiary hearing was not required.”).
Citations to “Doc.” are to the docket in CV 20-1717-PHX-DGC (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR 17-00841-PHX-DGC.
I. BACKGROUND
On February 12, 2018, Movant signed a plea agreement in which Movant agreed to plead guilty to Transporting Individuals to Engage in Prostitution in violation of 18 U.S.C. § 2421. (CR Doc. 156 at 1).
The plea agreement's “Waiver of Defenses and Appeal Rights” provision states that:
The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under Title 18, United States Code, Section 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of “prosecutorial misconduct” (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).(Id. at 5) (emphasis added).
The plea agreement also provides that Movant understood and agreed to the agreement's terms and conditions, entered into the plea voluntarily, and that Movant was satisfied with his counsel's representation. (Id. at 8-9).
The Court held a change of plea hearing the day Movant signed the plea agreement. (CR Doc. 178). After the Court completed the plea colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Movant pled guilty to Transportation of Individuals to Engage in Prostitution (Id. at 4-19). The Court found that Movant knowingly, intelligently, and voluntarily entered a plea of guilty. (Id. at 18). The Court accepted and entered Movant's guilty plea, but deferred acceptance of the written plea agreement. (Id. at 19). The Court accepted the written plea agreement at the June 14, 2018 sentencing hearing. (CR Doc. 179 at 13). The Court sentenced Movant to 78 months in prison, followed by a five-year term of supervised release. (CR Doc. 155 at 1).
On August 31, 2020, Movant timely filed the § 2255 Motion (Doc. 1), which contains three grounds for relief. In its Screening Order, the Court required the Government to respond. (Doc. 3). As Movant alleges that he received the ineffective assistance of counsel, the Government requested that Movant be required to sign a limited waiver of his attorney-client privilege or withdraw his ineffective assistance of counsel claims. (Doc. 4). Movant signed a Waiver. (Doc. 9). On July 27, 2021, the Government filed its Response (Doc. 24) to the § 2255 Motion. Movant filed a Reply (Doc. 31) on November 22, 2021. The Court subsequently granted Movant's request to supplement his § 2255 Motion. (Doc. 33). Movant filed his Supplement (Doc. 34) on January 6, 2022. The Government filed a Response (Doc. 35) on January 21, 2022, to which Movant did not reply.
II. LEGAL STANDARDS
A. Enforceability of a Plea Agreement's Waiver Provision
“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, when a defendant has solemnly admitted in open court that he is guilty of a charged offense, “he may not thereafter raise independent claims that occurred prior to the entry of the guilty.” Id. “A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.” United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); see also Tollett, 411 U.S. at 267.
Additionally, it is a “fundamental rule that plea agreements are contractual in nature and are measured by contract law standards.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007). The plain language of a plea agreement generally will be enforced if the agreement is clear and unambiguous. Id. This includes a plea agreement's provision whereby a defendant waives the right to challenge his or her conviction and sentence through appeal or a collateral proceeding, such as a § 2255 proceeding. “A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005) (quoting Jeronimo, 398 F.3d at 1153). The Ninth Circuit “will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because “[t]he whole point of a waiver . . . is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462-63 (9th Cir. 2016)
Notwithstanding the above, a defendant may bring a claim alleging that a waiver or plea agreement was involuntary or that the ineffective assistance of counsel rendered the waiver or plea agreement involuntary. See Davies v. Benov, 856 F.3d 1243, 1247 n.2 (9th Cir. 2017) (“Claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary, however, may not be waived.”); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to Section 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver). The Ninth Circuit has explained that 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); see also Jeronimo, 398 F.3d at 1153-55 (finding a waiver of a direct appeal knowing and voluntary based on the plea agreement and the change of plea proceeding).
B. Challenging a Guilty Plea Based on an Ineffective Assistance of Counsel Claim
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the U.S. Supreme Court decided that a defendant arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the defendant. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
The Strickland test applies to challenges to guilty pleas and plea agreements that are based on ineffective assistance claims. Jeronimo, 398 F.3d at 1155. To establish the test's performance prong in that context, a defendant must establish that his or her counsel's advice regarding the guilty plea was outside “the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). Regarding the prejudice prong, a 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.” Washington, 422 F.3d at 873 (quoting Hill, 474 U.S. at 58-59). 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. See Hill, 474 U.S. at 59; United States v. Astorga, 457 Fed.Appx. 698, 700 (9th Cir. 2011) (finding no prejudice where the defendant pled guilty and received a sentence of 70 months' imprisonment when the defendant faced a sentence of 120 months if he had proceeded to trial where he was likely to be convicted).
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
III. DISCUSSION
A. Grounds One and Two
Movant was initially indicted in June 2017. (CR Doc. 1). A Superseding Indictment was filed in January 2018, then a Second Superseding Indictment was filed in February 2018. (CR Docs. 63, 130). The six-count Second Superseding Indictment states that “at least as early as August 2014” until on or about April 2015, Movant conspired with another individual in recruiting one minor female (Jane Doe later identified as S.W.) and three adult females (R.W., M.S., B.H) to engage in commercial sex acts in California, Nevada, and Arizona. (Doc. 130).
Movant waived his right to a jury trial, and the Court set a bench trial for February 12, 2018. (CR Doc. 135). The Government intended to call the juvenile female victim, S.W., and one of the adult female victims, R.W., as trial witnesses.
During a witness preparation session with the Government on the eve of trial, S.W. made “substantial changes to her previous statements.” (CR Doc. 149-1). S.W. appeared at Court on the day of trial and was prepared to testify. R.W., however, was not present. On the morning of trial, R.W. sent a text message to the Government that stated: “I'm too scared to do this court thing anymore . . . I'm sorry . . . I know u guys got this without me,” and “I thought I could do this . . . but I [can't].” (Doc. 1 at 7; CR Doc. 152 at 5). The Government then extended a plea offer, which Movant accepted. (CR Doc. 156). The Government had previously extended four plea offers, all of which Movant rejected.
The Presentence Report recounts that R.W. was present at Movant's February 7, 2018 hearing. (Doc. 152 at 5). While both R.W. and Movant were in the courtroom, Movant “called out to her stating R.W. was his girlfriend and he loved her. She appeared frightened and would not look up from the floor.” (Id.).
The factual basis of the February 12, 2018 plea agreement states that “On or between November 20, 2014, and November 23, 2014, I, Jonathan Frank Davis, knowingly transported B.H. and R.W., in interstate commerce. Specifically, I transported B.H. and R.W. by vehicle from California to Arizona, with the intent that B.H. and R.W. engage in prostitution.” (Id. at 7). Movant answered affirmatively when the Court asked Movant whether the factual basis is true. (Doc. 178 at 17).
In Grounds One and Two of the § 2255 Motion, Movant contends that his trial counsel failed to provide him with all the information necessary to make an informed decision whether to accept the plea agreement. As these claims assert that Movant's guilty plea was not knowing, intelligent, and voluntary due to the alleged ineffective assistance of counsel, the claims are reviewable. United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (“A claim of ineffective assistance used to attack the validity of a guilty plea may be sustained where the petitioner establishes that the ineffective performance ‘affected the outcome of the plea process . . . [such] that absent the erroneous advice, he would have insisted on going to trial.”') (quoting Hill, 474 U.S. at 58). The claims, however, are without merit.
“The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill, 474 U.S. at 56 (internal quotation marks and citation omitted). A plea is “involuntary” if it is the product of threats, improper promises, or other forms of wrongful coercion. See Brady v. United States, 397 U.S. 742, 755 (1970). A plea is “unintelligent” if the defendant is without the information necessary to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty. See Hill, 474 U.S. at 56. A plea also is unintelligent if the defendant's decision to plead guilty is based on advice from counsel that is not “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970).
In Ground One, Movant asserts that
late on the Sunday before trial my defense recieved [sic] an email where the prosecution witness S.W. retracted almost all of the statements against me. I was never informed of this retraction or that it was so extensive .... I did not know everything that I needed to know when I accepted my plea offer.(Doc. 1 at 3). In Ground Two, Movant asserts that he has “new evidence.” (Id.). Movant states:
The trial Judge Campbell was unware [sic] about the fact/document I was mailed weeks after I accepted fifth plea offer, an e-mail and text message from prosecution witness R.W. stating she was unwilling to testify. I also have evidence that I would not have accepted the plea offer had I known the prostitute S.W. had changed her story. I wrote a letter to my parents “after” I received a document from the defense team
which showed me both witnesses [sic] retraction. The letter was intercepted by the government and a copy sent to trial counsel.... I would have accepted the plea offer had I been given the proper counsel and critical information that I received from the defense team after the sentencing.(Id. at 3-4).
In preparing its Response to the § 2255 Motion, the Government propounded interrogatories on Movant's court-appointed counsel, Assistant Federal Public Defenders Susan Anderson and Maria Weidner. (Doc. 24-1 at 164-178). Interrogatory No. 12 asked: “How was the February 12 plea offer conveyed to Mr. Davis? Was Mr. Davis aware that victim-witness R.W. was no longer available to testify at trial and that victim-witness S.W. had changed her statement before he decided to accept the February 12 plea offer?” (Doc. 19-1 at 4).
In response to Interrogatory No. 12, Ms. Anderson and Ms. Weidner stated that the Government's fifth plea offer was presented to Movant in the courtroom on the morning of February 12, 2018 approximately one hour after the offer was received. (Doc. 24-1 at 168, 177). Ms. Anderson and Ms. Weidner recount that they advised Movant that the Government extended the plea offer because R.W. had chosen not to testify. (Id.). The undersigned finds that Movant's trial counsel did not fall below the objective standard of reasonableness by not providing a copy of R.W.'s actual text messages before Movant accepted the plea agreement. The undersigned further finds that Movant has failed to adequately show how he was prejudiced by not receiving a copy of R.W.'s text message before accepting the plea agreement.
In their responses to Interrogatory No. 12, Ms. Anderson and Ms. Weidner also explain that they do not recall whether on February 12, 2018 they discussed with Movant the fact that S.W. had changed or retracted some of her previous statements when she met with the Government on February 11, 2018 for trial preparation. (Doc. 24-1 at 168, 177). Ms. Anderson and Ms. Weidner further state that they “had already discussed at length with Mr. Davis on previous occasions the credibility issues of the juvenile victim-witness (S.W.).” (Id.). The undersigned concurs with the Government that “[t]he fact that trial counsel are unable to remember whether they specifically discussed additional changes in S.W.'s story with Defendant does not render trial counsel's performance deficient or deprive Defendant of information necessary to render his plea truly knowing.” (Doc. 24 at 15).
Here, the transcript from the change of plea hearing shows that the Court adequately informed Movant of the consequences of his plea and all other items required by Rule 11(b) of the Federal Rules of Criminal Procedure. (CR Doc. 178). Movant confirmed that he understood (i) the terms of the plea agreement, (ii) the nature, elements, and factual basis of the charge to which he was pleading guilty, and (iii) all of the rights he was giving up by pleading guilty under the terms of the plea agreement, including the right to appeal or collaterally attack his conviction and sentence. Movant also confirmed in the plea agreement and at the change of plea hearing that he was entering into the plea agreement voluntarily. (CR Doc. 156 at 8; CR Doc. 178 at 7).
The representations made by Movant at the change of plea hearing, “as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also 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.”). The Court found that Movant's plea was knowingly, intelligently, and voluntarily made.
Movant's assertions in his § 2255 Motion do not meet the burden required to overcome his contrary statements in open court under oath. Muth v. Fondren, 676 F.3d 815, 821-22 (9th Cir. 2012) (agreeing with cases from the First, Fourth, Seventh, and Tenth Circuits holding that, ordinarily, a movant may not rest a collateral challenge to his convictions that rest on allegations that directly contradict the movant's statements under oath at a plea hearing); United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (“Judges need not let litigants contradict themselves so readily; a motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction.”). The record shows that Movant unambiguously waived his right to raise a collateral attack on his conviction and sentence. The undersigned finds that Movant's guilty plea was knowing, intelligent, and voluntary and was not the result of ineffective assistance of counsel. Movant has not satisfied Strickland's two-prong test with respect to Grounds One and Two. It is recommended that the Court deny relief on Grounds One and Two.
B. Ground Three
In Ground Three, Movant contends “that the ‘coercive plea bargaining process' and possibility of receiving a severe sentence if I proceeded to trial rendered my guilty plea involuntary.” (Doc. 1 at 4). As the Government recounts in its Response (Doc. 24 at 16), Movant presented the claim in Ground Three in his direct appeal. (CR Doc. 192-1 at 2). The Ninth Circuit Court of Appeals reviewed the claim de novo and found that the record reflects that Movant “waived his appellate rights knowingly and voluntarily . . . and that his guilty plea was knowing and voluntary ....” (Id. at 3).
“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.” Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972). “Grounds which were apparent on original appeal cannot be made the basis for a second attack under § 2255.” See United States v. Egger, 509 F.2d 745, 748 (9th Cir. 1975). Because the Ninth Circuit found that Movant's guilty plea was knowing and voluntary, the undersigned finds that Movant is precluded from raising the issue again in this collateral proceeding. See Rivera-Alvarado v. United States, No. CV-13-00509-PHX-GMS, 2014 WL 5385501, at *9 (D. Ariz. Oct. 21, 2014) (“The Ninth Circuit rejected the argument and found that the trial court did not err in overruling trial counsel's objection and admitting the evidence. Movant is therefore precluded from raising the issue again in collateral proceedings, even though styled as an ineffective assistance of counsel claim.”); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (holding that because the defendant had “raised this precise claim in his direct appeal, and this court expressly rejected it” and therefore the “claim cannot be the basis of a § 2255 motion”). It is recommended that the Court deny Ground Three.
C. Movant's Supplement (Doc. 31)
In his Supplement filed on January 6, 2022, Movant asserts that “[c]learly it's been a Brady violation as well as ineffective counsel due to significant evidence being withheld purposely by the prosecution in order to get me to plea.” (Doc. 31 at 1). Movant contends that when the Government extended the fifth plea offer that Movant accepted, the Government withheld (i) a copy of R.W.'s text message stating that she is not going to testify and (ii) a copy of the report from S.W.'s February 11, 2022 witness preparation session. (Id. at 1, 6, 8).
A Brady violation occurs where the prosecution withholds evidence that is material and favorable to the defendant. Brady v. Maryland, 373 U.S. 83, 87 (1963). When the defendant enters a guilty plea rather than proceeding to trial, materiality is determined by “whether there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial.” Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). “[T]he test for whether the defendant would have chosen to go to trial is an objective one that centers on ‘the likely persuasiveness of the withheld information.'” Id. (citation omitted).
Assuming arguendo that Movant's Brady claim is reviewable, the Government correctly asserts that it is without merit. (Doc. 35 at 4). The Government has provided a copy of an email sent on Sunday, February 11, 2018 at 8:17 PM by the prosecutor to Movant's trial counsel that attached S.W.'s witness preparation report. (Doc. 35-1 at 2). Movant concedes that a copy of the report was sent to his trial counsel on February 11, 2018. (Doc. 1 at 3) (stating that “late on the Sunday before trial my defense recieved [sic] an e-mail where the prosecution witness S.W. retracted almost all of the statements against me”).
The Government alternatively asserts that the claim is procedurally barred. (Doc. 35 at 3-4).
Further, R.W.'s statements that she would not testify at trial were relayed to Movant prior to accepting the plea agreement. The undersigned finds that Movant has failed to provide a sufficient factual basis to support his Brady claim for relief. United States v. Andrade-Larrios, 39 F.3d 986, 987-88 (9th Cir. 1994) (affirming district court's denial of § 2255 motion, without holding an evidentiary hearing, where petitioner initially “submitted nothing but conclusory allegations to support his claim” and then attempted to submit belated affidavits after his motion was denied). It is recommended that the claim be denied.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court deny the § 2255 Motion (Doc. 1).
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant 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 Fed. R. App. P. 4(a)(1) 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); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).