United States v. Darling

Full title: UNITED STATES OF AMERICA, Respondent, v. KERRY DEAN DARLING, Movant

Court: United States District Court, E.D. California

Date published: Sep 20, 2011

No. CR S-04-0250 GEB EFB, 2:06-cv-00318 (E.D. Cal. Sep. 20, 2011)

Opinion

No. CR S-04-0250 GEB EFB, 2:06-cv-00318.

September 20, 2011

DANIEL J. BRODERICK, Bar #89424, Federal Defender, ANN C. McCLINTOCK, Bar #141313, Assistant Federal Defender, Sacramento, California, Attorneys for Movant-Appellant, KERRY DEAN DARLING.

ORDER

EDMUND BRENNAN, Magistrate Judge

Movant, a federal prisoner proceeding with counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dckt. No. 120. Since movant may be entitled to the requested relief, respondent is directed to file an answer, motion or other response within sixty days of the date of this order. See Rule 4(b), Rules Governing § 2255 Proceedings in the U.S. District Courts.

Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the § 2255 motion. Rule 5, Rules Governing § 2255 Proceedings in the U.S. District Courts.

Movant's reply to respondent's answer, if any, is due on or before thirty days from the date respondent's answer is filed. Id.

If the response to the § 2255 motion is a motion, movant's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 14 days thereafter.

The Clerk of the Court shall serve a copy of this order, together with a copy of movant's September 24, 2008 motion on the United States Attorney or his authorized representative.

So ordered.

MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

Movant KERRY DEAN DARLING, prisoner number 15251-097, is confined unconstitutionally in the custody of the Bureau of Prisons and its warden at FCI Victorville Medium I, in Adelanto, California. Movant alleges as follows: 1. Name and location of court which entered the judgment of conviction under attack: 2. Date of judgment of conviction: 3. Length of sentence: 4. Nature of offense involved (all counts): 21 U.S.C. § 841 21 U.S.C. § 841 5. What was your plea? (Check one): (a) Not guilty X (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: 6. If you pleaded not guilty, what kind of trial did you have? (Check one): (a) Jury X (b) Judge only 7. Did you testify at the trial? 8. Did you appeal from the judgment of conviction? 9. If you did appeal, answer the following: (a) Name of court: (b) Result: (c) Date of result: 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of court: (2) Nature of proceeding: (3) Grounds raised: (4) Did you receive an evidentiary hearing on your petition, application or motion? (5) Result: (6) Date of result: (b) As to any second petition, application or motion give the same information: Not applicable. (c) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or motion? (1) First petition, etc. (2) Second petition, etc.

United States District Court for the Eastern District of California, 501 I Street, Sacramento, California, 95814. August 1, 2005. 360 months Count 1: Possession of methamphetamine with intent to distribute ((a)), Count 2: Manufacture of methamphetamine ((a)). ____ ____ Not applicable. ____ No Yes United States Court of Appeals for the Ninth Circuit Judgment affirmed June 27, 2007 Yes U.S. District Court for the Eastern District of Califonria 2255 motion Sixth Amendment violation due to ineffective assistance of trial counsel Jeffrey Tochterman. No. Dismissed without prejudice to refiling once the direct appeal was finally resolved. November 16, 2006 No Not applicable (d) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not: The dismissal permitted the filing of a 2255 motion after the direct appeal was final and did not otherwise address the merits of the ineffective assistance of counsel claim raised in the dismissed petition. Thus, no appeal was needed.

12. State concisely every ground on which you claim that you are being held in violation of the constitution, laws or treaties of the United States. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. PROOF ALL

Ground one: Movant was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel, Jeffrey D. Tochterman, unreasonably and prejudicially failed to properly advise movant regarding the government's plea offer and, as a result, movant rejected a plea offer he otherwise would have accepted. Had Movant received reasonably effective assistance from trial counsel, Movant would have accepted the plea offer made to him, a copy of which is included as an exhibit to Movant's supporting declaration, he would not have persisted in taking this case to trial, and he would have received credit for the approximately 140 days he spent in custody between his initial arrest on February 24, 2004, and his arrest on federal charges on July 13, 2004. Tochterman unreasonably and prejudicially failed to prepare any sentencing mitigation materials and failed to even advocate for a sentence lower than the calculated guideline range, which was 360 months to life. Tochterman also failed to assure Movant was credited on his federal sentence with the time he spent in pretrial detention on the state charges, after those state charges were dismissed in favor of the federal prosecution.

More specifically, Tochterman failed to properly and accurately advise Movant regarding:

(1) the risks of persisting in movant's not guilty plea and taking the case to trial with Tochterman's factually unsupported theory of defense;

(2) the increased sentencing consequences movant faced should he be convicted, and in particular, regarding the effects movant's prior convictions for a "crime of violence" and a "controlled substance offense" would have on his sentence under the career offender provisions of the United States Sentencing Guidelines; and

(3) the near certainty that movant would be convicted of all counts charged in the indictment if he went to trial rather than settle the case. Instead of giving movant reasonable advise, Tochterman during the pretrial phase of this case told movant that his case was triable. Tochterman told movant his theory of the defense was to present movant as a mere methamphetamine addict and put the blame on Ms. Teresa Lynn Aitchison for the methamphetamine lab and the manufactured methamphetamine found there. Tochterman failed to advise movant to accept the plea offer even after Tochterman knew he was not going to call Aitchison as a witness and knew the trial judge would exclude all evidence of her state court conviction in the related state case that arose out of the same facts as Movant's case.

(4) Tochterman failed to argue for a reduced sentence that would credit Movant for the jail time Movant spent in custody between February 24, 2004, and June 13, 2004; these approximately 140 days were not credited toward any state or federal term Movant had to serve because the state charges against him were dismissed and the Bureau of Prisons has failed to credited Movant with this time on the 30-year sentence the federal court actually imposed.

(a) Supporting FACTS (state briefly without citing cases or law): People v. Teresa Lynn Aitchison and Kerry Dean Darling 11377 4B1.1 18 U.S.C. § 3553 4B1.1 ¹

1 Before being sentenced in this federal case, the greatest term Movant served in custody was 180 days. The superior court imposed this straight jail time after Movant's Proposition 36 drug program was revoked in 2001. Presentence Report, page 10, ¶ 39. In each of the prior convictions listed that give a longer jail term, Movant served that time through a non-custodial work furlough or a mix of jail time and work furlough. See Presentence Report, page 9, ¶ 34 (100 day term was served through sheriff's work furlough program, same with 60 days jail imposed after probation was revoked and reinstated); id. ¶ 36 (300 days jail served through work furlough before probation was initially modified to place Movant into Proposition 36 drug treatment program).

1. In connection with the investigation that ultimately resulted in this federal criminal case, Movant was arrested on February 24, 2004, by Sacramento County law enforcement officers on suspicion of manufacturing and possessing methamphetamine. A. Movant retained attorney David Weiner as counsel for the state court proceedings, , No. 04F00411. Movant retained Mr. Weiner in February 2004 and he represented Movant until late June 2004. Mr. Weiner represented Movant during the preliminary hearing, held in superior court on May 7, 2004. B. Also named and charged in Movant's state case was a co-defendant, Teresa Lynn Aitchison. C. On July 9, 2004, these state court proceedings were dismissed against Movant because a federal indictment had been filed on July 1, 2004. Movant was arrested on the federal charges on June 13, 2004, while he remained in jail. The federal indictment charged Movant with committing federal drug offenses arising out of the same allegations as had been made in state court. However, Ms. Aitchison's state case was settled on June 18, 2004. She received a five- year state prison sentence and no federal indictment concerning these matters was brought against her. D. The July 2004 federal indictment charged Movant with (1) knowingly and intentionally possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine; (2) the knowing and intentional manufacture of the same; (3) having committed these offenses after suffering two prior felony convictions for a drug offense. The prior felony drug offenses were alleged to be: (a) a violation of California Health and Safety Code § 11378, in Sacramento County case number 98F00290, that had become final on or about August 21, 1998; and (b) a violation of California Health and Safety Code § , in Sacramento County case number 01F02001, that had become final on or about July 2, 2001; 2. In connection with this federal case, Movant was represented by Jeffrey David Tochterman. A. Mr. Tochterman and Movant's nephew, Kevin Darling, discussed having Tochterman represent Movant in federal court. i. Kevin Darling had retained Tochterman in a criminal case of his own and recommended Tochterman to Movant. ii. Mr. Tochterman told Movant that once he and Kevin agreed to financial terms, Tochterman would take Movant's case. iii. It took Mr. Tochterman and Kevin took two weeks to work out the financial agreement. (a) As Movant understands it, Tochterman agreed to accept a 2003 Mercedes SL and $10,000, as his fee. (b) Movant ended up paying $5,000 of the cash owed to Tochterman by borrowing from the brother of a friend. (c) A third person, a friend of Kevin's whom Movant also knew, owned the Mercedes that was given to Tochterman. B. During the entire time he represented Movant, Mr. Tochterman met Movant at the Sacramento County jail a total of five or six times. i. During the first visit, Tochterman told Movant that he and Kevin Darling would have to agree on the cost and payment for Tochterman's representation of Movant. ii. During the second visit, Tochterman simply came and told Movant he had accepted Movant's federal case. iii. At neither of these pre-trial meetings did Tochterman and Movant discuss the case against Movant in any substance. iv. Movant recalls specifically that Tochterman met with Movant at the jail three times during the actual federal trial. v. After the initial visit, Movant saw Tochterman one or two other times before the trial began. C. At some point before trial, Tochterman told Movant that the government had offered to let Movant plead guilty in return for a 20 year prison term. i. When Tochterman told Movant about the plea offer, Tochterman also told Movant that he had already told the government's attorney that Movant would reject the plea offer. ii. Tochterman neither showed Movant the June 2005 written plea agreement nor the government's cover letter to that plea agreement. (a) Copies of these June 2005 dated documents are attached to Movant's declaration as exhibit A. (b) Movant saw both of these June 2005 documents for the first time in September of 2008, when Movant received them from the Federal Defender's Office with the draft of his declaration in support of this motion to vacate the judgment and sentence. iii. Tochterman simply told Movant the plea offer's 20-year term was too long. Tochterman told Movant that he believed the government was going to make another offer that would involve less time. Tochterman did not explain to Movant why he believed this to be the case. iv. While Movant would not agree to cooperate with the government by acting as an informant regarding the actions of others, Movant was open to settling his own federal case through a plea agreement. (a) While Movant's case was pending in state court on the same charges, Movant was offered and rejected a plea agreement that would have required him to serve 17 years in state prison and cooperate with law enforcement officials by "wearing a wire." Even though Movant knew state time could involve custody credits that could substantially reduce the 17 years he would actually have to serve in custody, Movant rejected this plea offer because Movant was unwilling to inform on others for law enforcement. (b) During the investigation of his case, police officers, including Detective Moya, asked Movant to discuss other people and their involvement in the methamphetamine manufacturing operation in connection with which Movant was charged. Movant refused to discuss other people's involvement. (c) While Movant has consistently refused to be a cooperating informant for the government, Movant was not opposed to settling his case through a plea agreement. While still in state court, the only offer Movant received, described above, required his cooperation which Movant was unwilling to undertake. In federal court, the only other offer he was aware of, other than the June 2005 20-year deal described above, also involved cooperation which Movant could not accept. D. Attorney Tochterman told Movant that his case was triable. i. Tochterman's theory of the defense was to present Movant as a mere methamphetamine addict and put the blame on Ms. Aitchison for the meth lab and its methamphetamine which was found in her house. ii. During the trial, Tochterman persisted in presenting this defense even though he did not call Aitchison as a witness and knew the trial judge had ruled, during pretrial motions, that all evidence of Aitchison's state court conviction in the related state case would not be allowed into evidence. iii. Tochterman meet Movant at the jail three times during the jury trial. (a) During these short visits, none of which lasted longer than 15 minutes, Tochterman asked Movant questions, explained the closing argument, and assured Movant things were looking good. (b) Movant recalls that he and Tochterman did discuss Movant testifying at trial, in the sense that Tochterman told Movant it was not a good idea. Tochterman told Movant that if Movant testified, the prosecutor would chew him up and that it was not a good idea because of Movant's prior convictions. Tochterman did not explain to Movant why his prior convictions, which included a drug possession, would have hurt the defense theory for Tochterman picked for Movant's case. This was Movant's first trial, so Movant was curious about testifying. Tochterman simply said it was not a good idea and Movant agreed with him. E. At no time did Tochterman discuss with Movant the effect Movant's prior state conviction for possession of methamphetamine for sale could or would have on his federal case. i. Just before trial was scheduled to start in early 2005, the government filed a notice that it was charging Movant with having suffered a prior felony conviction in Sacramento County Superior Court for possession of methamphetamine for sale in violation of California Health Safety Code § 11378. ii. At not time during his representation of Movant, did Tochterman explain to Movant that this filing meant the statutorily mandatory minium sentence changed from 10 years to 20 years by charging this prior conviction. iii. Had Tochterman explained the effect this prior drug conviction would have on his federal sentence, Movant would have accepted the June 2005 plea offer that effectively would have required Movant to serve 20 years in prison. F. During his representation of Movant, Mr. Tochterman failed to discuss the facts of Movant's case directly with Movant. i. When Tochterman met with Movant at the jail, the conversations were brief and not about the specific facts of Movant's case. Instead, Movant's friend, Rachel Palazzi, would visit Movant and then try to give Tochterman information that she believed was useful. The information she provided, or tried to provide, to Tochterman came from her review of the discovery, her limited personal knowledge of Movant's comings and goings before his arrest, and Movant's answers to questions she asked him during her visits with Movant. It is Movant's understanding from Rachel that Tochterman refused to meet with her and she was limited to rare telephone calls or messages. She was forced to simply leave her materials at Tochterman's office in the hope he would review them. Nor would Tochterman communicate with Movant's mother. G. During his representation of Movant, Tochterman did not inform Movant of any possible conflict that might exist between his representation of Movant's nephew, Kevin Darling, and his representation of Movant in this federal case. i. The closest Tochterman and Movant came to such a discussion occurred when Movant asked Tochterman what would happen if Movant entered into a plea agreement with the government. ii. To Movant's surprise, Tochterman said that if Movant was to do so, Movant would have to first get a new lawyer because he would have to withdraw. Tochterman left Movant with the impression that he would have to protect Movant's nephew, Kevin Darling, by withdrawing from representing Movant under such circumstances. iii. Tochterman represented Kevin in a criminal matter in which Kevin was charged with being a felon in possession of a firearm. (a) Movant believes the case was in 2003. (b) Movant recalls the case because he had a police officer or detective come to his house to ask how Kevin was able to have $150,000 in cash on him when he was arrested. Movant did not know how Kevin had that amount of money and told the officer so. H. Tochterman failed to prepare any sentencing mitigation materials and failed to even advocate for a sentence lower than the calculated guideline range, which was 360 months to life. i. Tochterman failed to argue for any downward departures from the guideline range and completely failed to argue that the criminal history score calculated by probation over-represented Movant's criminal history. ii. Tochterman failed to argue that the application of the career offender provisions of the guidelines (U.S.S.G. § ) to Movant resulted in a sentencing range that was too harsh and over-represented Movant's criminal history. iii. Tochterman failed to argue that the recommended sentence, which the court imposed, failed to comply with the statutory requirement imposed by which mandated the court to impose a sentence "sufficient, but not greater than necessary, to comply with the . . . the need for the sentence imposed — (A) to reflect the seriousness of the offense, promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; (D) to provide the defendant with needed educational or vocational training, medical care, or other corrective treatment in the most effective manner. . . ." 18 U.S.C. § 3553(a)(2). iv. Tochterman failed to argue that the government's charging decision, namely, to allege Movant had suffered a prior "felony drug offense" for purposes of increasing the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) from 10 years to 20 years, meant the application of the career offender provisions of U.S.S.G. § , which increased Movant's sentencing guidelines to an Offense Level of 37 and a Criminal History Category of VI, resulted in unfair and impermissible double counting of the prior conviction. v. Tochterman failed to argue that a 30-year sentence for Movant, the term recommended by the probation officer, was excessive as it would lessen the likelihood of rehabilitation, in light of Movant's age together and the fact that Movant's prior convictions had not resulted in a prison sentence. All of his prior state convictions resulted in either a relatively short term in county jail or sheriff's work furlough. Despite Movant's criminal history being calculated as Category V, before application of the career offender guideline, the fact that Movant had never been in custody for any substantial period of time before this crime, his criminal history score was overstated. The application of the career offender provision further aggravated this overstatement by increasing not only Movant's criminal history score from category V to category VI, but by also mandating an increase in his offense conduct score from the calculated 36 to an overstated score of 37. vi. Tochterman unreasonably viewed the United States Sentencing Guideline calculated by the probation officer as the mandatory sentencing range and failed to investigate and present any mitigating evidence or legal argument supporting a lesser sentence for Movant. (a) Tochterman failed to argue that the recommended sentence of 30 years would create unfair disparity between federal and state sentences imposed for the same offense. (1) Movant's original co-defendant in state court served a five-year term that left her eligible for more liberal sentencing credits under the California sentencing law. (2) The court barred the admission of the co-defendant's culpability for the same crimes Movant was charged with committing as irrelevant for the guilty-innocence phase of the trial. Her culpability and the sentence she received was relevant to the sentencing phase of Movant's case, but Tochterman failed to present this evidence to the court. (b) Movant was arrested on February 24, 2004, and served time in pretrial custody on state charges that ultimately gave rise to the federal indictment and prosecution against him. After the state charges were dismissed in favor of the federal prosecution, while still in jail, Movant was arrested by federal authorities on or about July 13, 2005. Movant thus served approximately 140 days in state custody that has not been credited toward his federal sentence nor to any state sentence as the state prosecution was dropped. Tochterman failed to argue for a reduced sentence that would credit Movant for this jail time and the Bureau of Prisons has failed to credited Movant with it time toward the 30-year sentence actually imposed. (b) Direct Appeal of Ground One:

(1) If you appealed from the judgment of conviction, did you raise this issue? No.

(2) If you did not raise this issue in your direct appeal, explain why: The facts needed to support this claim are not part of the record that was available on direct appeal. At the same time the direct appeal was pending, Movant filed a 28 U.S.C. § 2255 motion to raise a Sixth Amendment claim regarding his attorney's unreasonable and prejudicial performance. But this court dismissed the motion without prejudice to its refiling after the direct appeal was final. This Court believed that 2255 motion was prematurely filed.

(c) Post-Conviction Proceedings:

(1) Did you raise this issue in any post-conviction motion, petition, or application? Yes.

(2) If your answer to Question (c)(1) is "Yes," state:

Type of motion or petition: see answer to (b)(2).

(3)-(7) [omitted]

13. If any of the grounds listed in 12 were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them:

The facts needed to support these Sixth Amendment based ineffective assistance of counsel claims were not part of the record available on direct appeal. When Movant filed a 2255 motion to raise the Sixth Amendment violation regarding his attorney's unreasonable and prejudicial performance at the same time his direct appeal was pending, this court dismissed the motion without prejudice as being prematurely filed.

14. Do you have any petition or appeal now pending in any court as to the judgment under attack?

15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein:

No.

(a) At preliminary hearing:

There was no preliminary hearing in federal court. Before the prosecution was brought to federal court, Attorney David Weiner represented Movant during the preliminary hearing conducted in Sacramento County Superior Court. Mr. Weiner's current address is: 3294 Royal Drive, Suite 201, Shingle Springs, CA, 95682.

(b) At arraignment and plea: Jeffrey D. Tochterman, 2707 K Street, Suite 3, Sacramento, California, 95816.

(c) At trial: Jeffrey D. Tochterman

(d) At sentencing: Jeffrey D. Tochterman

(e) On appeal: Ann C. M^cClintock, Assistant Federal Defender, 801 I Street, 3^rd Floor, Sacramento, CA 95814.

(f) In any post-conviction proceeding: Ann C. M^cClintock, AFD

(g) On appeal from any adverse ruling in a post-conviction proceeding: Not applicable.

17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?

18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2255 does not bar your motion:

No

(a) If so, give name and location of court which imposed sentence to be served in the future:

Not applicable.

(b) Give date and length of the above sentence:

Not applicable

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?

Not applicable.

Therefore, Movant asks that the Court grant the following relief:

1. That this Court expand the record to include the documents filed concurrently as exhibits with this motion;

2. That this Court issue an order to show cause, ordering the United States to show cause why the motion should not be granted;

3. That, if facts are disputed by the United States, this Court provide Movant the opportunity to conduct discovery and then to present his evidence at an evidentiary hearing;

4. That, upon production of the evidence and argument, this Court grant the motion and order the United States to release Movant;

5. That the Court formally appoint the Federal Defender to represent Movant in this matter; and

6. That the Court grant Movant any and all other relief to which he is entitled.

If the person signing is not Movant, state the relationship to Movant and explain why Movant is not signing this motion:

Counsel is authorized to sign this motion for the Movant pursuant to Rule 2(a)(5) of the Rules Governing Section 2255 Proceedings. Movant has been housed in a remote custodial location which has made it difficult to complete this motion within the time permitted. Counsel has been unable to obtain his signature.

DECLARATION HENRY HAWKINS IN SUPPORT OF MOTION TO VACATE THE JUDGMENT AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 DECLARATION OF HENRY HAWKINS

I, Henry Hawkins, declare as follows:

1. I am employed by the Office of the Federal Defender for the Eastern District of California and, in the course of this employment, am the investigator in the above captioned case. 2. I interviewed Kerry Dean Darling who is the defendant and movant in this matter. Based on my interview with Mr. Darling, I believe the attached draft declaration that this office prepared for his signature is accurate. I expect Mr. Darling to sign it without amendment. 3. Mr. Darling is currently in the custody of the Bureau of Prisons at FCI Victorville Medium I, in Adelanto, California. On September 9, 2008, this Office sent the attached Darling declaration to him by Federal Express for overnight delivery. Our office confirmed that this package was delivered to FCI Victoville and accepted on September 10, 2008. 4. After not receiving any response from Mr. Darling, this Office contacted the litigation coordinator at FCI Victorville. On September 18, 2008, we learned for the first time that the prison will not deliver a Federal Express letter to inmates. At this point, we have no idea what has happened to the draft declaration that was sent to Mr. Darling. 5. Another copy of the draft declaration will be sent to Mr. Darling today, using the United States Postal Service's first-class service. Once the signed declaration is received, this Office expects to provide it to the court. I declare under penalty of perjury that the matters herein as to which I have personal knowledge are true and correct, and as to other matters, I believe them to be true and correct.

DATED: September 18, 2008

DECLARATION KERRY DEAN DARLING IN SUPPORT OF MOTION TO VACATE THE JUDGMENT AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 DECLARATION OF KERRY DEAN DARLING

I, Kerry Dean Darling, declare as follows: United States v. Kerry Dean Darling People v. Teresa Lynn Aitchison and Kerry Dean Darling 11378

1. I am the movant in the above referenced case and was the defendant in the matter , CR S 04-00250 FCD, filed in the United States District Court for the Eastern District of California. 2. In connection with this criminal case, I was arrested on February 24, 2004, by Sacramento County law enforcement officers on suspicion of manufacturing and possessing methamphetamine. A. I retained attorney David Weiner as counsel for the state court proceedings, , No. 04F00411. I retained Mr. Weiner in February 2004 and he represented me until late June 2004. Mr. Weiner represented me during the preliminary hearing, held in superior court on May 7, 2004. B. Also named and charged in my state case was a co-defendant, Teresa Lynn Aitchison. C. On July 9, 2004, these state court proceedings were dismissed against me because a federal indictment had been filed on July 1, 2004. The federal indictment charged me with committing federal drug offenses arising out of the same allegations as had been made in state court. However, Ms. Aitchison's state case was settled on June 18, 2004. She received a five-year state prison sentence and no federal indictment concerning these matters was brought against her. D. The July 2004 federal indictment charged me with (1) knowingly and intentionally possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine; (2) the knowing and intentional manufacture of the same; (3) having committed these offenses after suffering two prior felony convictions for a drug offense. The prior felony drug offenses were alleged to be: (a) a violation of California Health and Safety Code § 11378, in Sacramento County case number 98F00290, that had become final on or about August 21, 1998; and (b) a violation of California Health and Safety Code § 11377, in Sacramento County case number 01F02001, that had become final on or about July 2, 2001; 3. In connection with this federal case, I was represented by Jeffrey David Tochterman. A. Mr. Tochterman and my nephew, Kevin Darling, discussed having Tochterman represent me in federal court. 1. Kevin Darling had retained Tochterman in a criminal case of his own and recommended Tochterman to me. 2. Mr. Tochterman told me that once he and Kevin agreed to financial terms, Tochterman would take my case. 3. It took Mr. Tochterman and Kevin took two weeks to work out the financial agreement. a. As I understand it, Tochterman agreed to accept a 2003 Mercedes SL and $10,000, as his fee. b. I ended up paying $5,000 of the cash owed to Tochterman by borrowing from the brother of a friend. c. A third person, a friend of Kevin's whom I also knew, owned the Mercedes that was given to Tochterman. B. During the entire time he represented me, Mr. Tochterman met me at the Sacramento County jail a total of five or six times. 1. During the first visit, Tochterman told me that he and Kevin Darling would have to agree on the cost and payment for Tochterman's representation of me. 2. During the second visit, Tochterman simply came and told me he had accepted my federal case. 3. At neither of these pre-trial meetings did we discuss the case against me in any substance. 4. I recall specifically that Tochterman met with me at the jail three times during the actual federal trial. 5. After the initial visit, I saw Tochterman one or two other times before the trial began. C. At some point before trial, Tochterman told me that the government had offered to let me plead guilty in return for a 20 year prison term. 1. When Tochterman told me about the plea offer, he also told me that he had already told the government's attorney that I would reject it. 2. Tochterman neither showed me the June 2005 written plea agreement nor the government's cover letter to that plea agreement. a. Copies of these June 2005 dated documents are attached to my declaration as exhibit A. b. I saw both of these June 2005 documents for the first time on September ____, 2008, when I received them from the Federal Defender's Office with the draft of this declaration. 3. Tochterman simply told me the plea offer's 20-year term was too long. Tochterman believed that the government was going to make another offer that would involve less time. He did not explain to me why he believed this. 4. While I would not agree to cooperate as part of a plea agreement, I was open to settling my federal case through a plea agreement. a. While my case was pending in state court on the same charges, I was offered and rejected a plea agreement that would have required me to serve 17 years in state prison and cooperate with law enforcement officials by "wearing a wire." Even though I knew state time could involve custody credits to reduce the 17 years, I rejected that offer because I was unwilling to inform on others for law enforcement. b. During the investigation of my case, police officers, including Detective Moya, asked me to discuss other people and their involvement in the methamphetamine manufacturing operation in connection with which I was charged. I refused to discuss other people's involvement. c. While I have consistently refused to be a cooperating informant for the government, I was not opposed to settling my case through a plea agreement. While still in state court, the only offer I received, described above, required my cooperation which I was unwilling to undertake. In federal court, the only other offer, other than the June 2005 20-year deal described above, also involved cooperation which I could not accept D. Tochterman told me that my case was triable. 1. His theory of the defense was to present me as a mere methamphetamine addict and he thought he could put the blame on Ms. Aitchison for the meth lab and its methamphetamine. 2. But during the trial, Tochterman did not call Aitchison as a witness and the trial judge excluded all evidence of her state court conviction in the related state case. 3. Tochterman did meet me at the jail three times during the trial. a. During these short visits, none of which lasted longer than 15 minutes, he asked me questions, explained the closing argument, and assured me thing were looking good. b. I recall that we did discuss me testifying at trial in the sense that Tochterman told me it was not a good idea. Tochterman told me that if I testified, the prosecutor would chew me up and that it was not a good idea because of my prior convictions. Tochterman did not explain to me why my prior convictions, which included a drug possession, would have hurt his defense theory for my case. This was my first trial, so I was curious about testifying. But Tochterman and I did not discuss the pros or cons of it. He simply said it was not a good idea and I agreed with him. E. At no time before or after trial did Tochterman discuss with me the effect my prior state conviction for possession of methamphetamine for sale could have on my federal case. 1. Just before trial was scheduled to start in early 2005, the government filed a notice that it was charging me with having suffered a prior felony conviction in Sacramento County Superior Court for possession of methamphetamine for sale in violation of California Health Safety Code § . 2. At not time during his representation of me did Tochterman explain to me that the government could seek a mandatory consecutive 10-year enhancement to my sentence by charging this prior conviction. 3. Had Tochterman explained the effect this prior drug conviction would have on my federal sentence, I would have accepted the June 2005 plea offer that would have required me to serve 20 years in prison. F. During his representation of me, Mr. Tochterman failed to discuss the facts of my case directly with me. 1. When Tochterman met with me at the jail, the conversations were brief and not about the specific facts of my case. Instead, my friend Rachel Palazzi would visit me and try to give Tochterman information that she believed was useful. The information she provided or tried to provide to Tochterman came from her review of the discovery, her limited knowledge of my comings and goings before my arrest, and my answers to questions she asked me during her visits with me. It is my understanding from Rachel that Tochterman refused to meet with her and she was limited to rare telephone calls or messages and was forced to simply leave her materials at Tochterman's office. Nor would Tochterman communicate with my mother. G. During his representation of me, Tochterman did not inform me of any possible conflict that might exist between his representation of my nephew, Kevin Darling, and his representation of me in this federal case. a. The closest we came to such a discussion happened when I asked Tochterman what would happen if I entered into a plea agreement with the government. To my surprise, Tochterman said that if I was to do so, I would have to first get a new lawyer because he would have to withdraw. Tochterman left me with the impression that he would have to protect my nephew Kevin Darling by withdrawing from representing me under such circumstances. b. Tochterman represented Kevin in a criminal matter in which Kevin was charged with being a felon in possession of a firearm. I believe the case was in 2003. I recall the case because I had a police officer or detective come to my house to ask me how Kevin was able to have $150,000 in cash on him when he was arrested. I did not know how Kevin had that amount of money and told the officer so. I declare under penalty of perjury that the matters herein as to which I have personal knowledge are true and correct, and as to other matters, I believe them to be true and correct.