Brian Sawyers v. United States

• Court: District Court, C.D. California
• Decided: July 6, 2021
• Docket: 2:20-cv-03113
• Status: Unknown

Opinion

190! 1 □□□□ 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 | BRIAN SAWYERS, CV 20-03113-RSWL 13 Petitioner, [REDACTED] 14 v. ORDER re: Petitioner’s Motion to Vacate, Set 15 Aside, or Correct Sentence UNITED STATES, Pursuant to 28 U.S.C. § 16 Respondent. 2255 [CV 1] [CR 202] 17 18 19 On December 7, 2016, Petitioner Brian Sawyers 20 (“Petitioner”) was sentenced to federal prison for a 21] term of 180 months based on two counts of distribution 22 of cocaine base in the form of crack cocaine, in 23 J violation of 21 U.S.C. S§ 841(a) (1), (b) (1) (C), and 24 (b) (1) (B) (131). J. & Commitment Order 1, ECF No. 158. 25 | Petitioner now asks the Court to vacate his sentence 26 | associated with his § 841 conviction. See generally 27] Pet’r’s Mot. to Vacate, Set Aside, or Correct Sentence 28 (“Mot.”), ECF No. 202. Having reviewed all papers

1 submitted pertaining to Petitioner’s 2255 Motion (the

2 “Motion”), the Court DENIES the Motion.

3 I. BACKGROUND 4 In February 2015, a grand jury indicted Petitioner 5 on two counts of distribution of cocaine base in the 6 form of crack cocaine, in violation of 21 U.S.C. §§ 7 841(a)(1), (b)(1)(C), and (b)(1)(B)(iii). See 8 Indictment 1:18-2:8, ECF No. 1. The case proceeded to 9 trial, where the jury returned a guilty verdict for 10 Petitioner on both counts of the indictment. See 11 Redacted Jury Verdict, ECF No. 26. As to Count Two, the 12 jury also found that Petitioner distributed at least 13 twenty-eight grams of crack cocaine. Id. At a hearing 14 on November 17, 2016, the Court determined that 15 Petitioner’s three prior felony drug convictions, in 16 conjunction with the jury’s finding as to Count Two, 17 meant that Petitioner faced a ten-year mandatory minimum 18 term of imprisonment on Count Two. Order re 21 U.S.C. § 19 851 Prove-Up, ECF No. 146; see also 21 U.S.C. § 20 841(b)(1)(B). 21 On December 7, 2016, this Court sentenced 22 Petitioner to 180 months on each count, to be served 23 concurrently. J. & Commitment Order 1, ECF No. 158. 24 Petitioner appealed on December 14, 2016, see Notice of 25 Appeal, ECF No. 161, and the Ninth Circuit affirmed on 26 October 24, 2018, see Mem. of USCA, ECF No. 193. On 27 March 11, 2020, the Court denied Petitioner’s Motion for 28 Elderly Offender Home Detention Pursuant to Section 603 1 of the First Step Act of 2018. Order re Petitioner’s

2 Motion for Elderly Home Detention, ECF No. 201.

3 Petitioner filed this § 2255 Motion on April 2, 2020. 4 See Mot. to Vacate, Set Aside, or Correct Sentence, ECF 5 No. 202. The Government filed its Opposition [CR 217] 6 on September 18, 2020. Following several extensions 7 granted by the Court, Petitioner replied on April 5, 8 2021. 9 II. DISCUSSION 10 A. Legal Standard 11 28 U.S.C. § 2255 provides that a federal prisoner 12 may make a motion to vacate, set aside or correct his 13 sentence on “the ground that the sentence was imposed in 14 violation of the Constitution or laws of the United 15 States, or that the court was without jurisdiction to 16 impose such sentence, or that the sentence was in excess 17 of the maximum authorized by law, or is otherwise 18 subject to collateral attack.” 28 U.S.C. § 2255(a). 19 “[T]he [Supreme] Court has cautioned that § 2255 20 may not be used as a chance at a second appeal.” United 21 States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010); 22 see also United States v. Johnson, 988 F.2d 941, 945 23 (9th Cir. 1993) (“Section 2255 . . . is not designed to 24 provide criminal Petitioners multiple opportunities to 25 challenge their sentence.”). A matter that has been 26 decided adversely on appeal from a conviction cannot be 27 relitigated on a § 2255 motion. See United States v. 28 Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (“If 1 [petitioner] did raise this issue on direct appeal and

2 the previous panel addressed it, then that decision is

3 the law of the case.”); see also Odom v. United States, 4 455 F.2d 159, 160 (9th Cir. 1972) (stating that, “when a 5 matter has been decided adversely on appeal from a 6 conviction, it cannot be litigated again on a 2255 7 motion”). 8 B. Analysis 9 Petitioner argues threefold in his Motion: (1) he 10 was denied the Sixth Amendment’s guarantee to effective 11 assistance of counsel; (2) the Court erroneously 12 categorized Petitioner as a career offender for 13 sentencing purposes; and (3) he is entitled to an 14 evidentiary hearing. The Court addresses each in turn. 15 1. Ineffective Assistance of Counsel 16 The Sixth Amendment affords the right to effective 17 assistance of counsel as a means of protecting the 18 “fundamental right to a fair trial.” Strickland v. 19 Washington, 466 U.S. 668, 684-85 (1984); see also United 20 States v. Leonti, 326 F.3d 1111, 1120 (9th Cir. 2003). 21 To prevail on this claim, Petitioner must establish (1) 22 counsel’s deficient performance and (2) that the 23 deficient performance prejudiced his defense. 24 Strickland, 466 U.S. at 687. The first prong asks 25 “whether counsel’s assistance was reasonable considering 26 all the circumstances.” Id. at 688. “Judicial scrutiny 27 of counsel’s performance must be highly deferential.” 28 Id. at 689. The second prong requires a “reasonable 1 probability that but for counsel’s unprofessional

2 errors, the result would have been different.” Leonti,

3 326 F.3d at 1120 (quoting Strickland, 466 U.S. at 694). 4 First, Petitioner argues that his former counsel— 5 Deputy Federal Public Defender (“DFPD”) Moriah Radin, 6 DFPD Kim Savo, and former DFPD Andre Townsend—rendered 7 ineffective assistance of counsel by failing to 8 communicate the option to plead guilty. Pet’r’s Mem. in 9 Supp. of Mot. 11:5-8 (“Mot.”), ECF No. 3; Reply in Supp. 10 of Mot. (“Reply”) 2-3, ECF No. 239. Petitioner insists 11 that his attorneys, “without investigating the facts of 12 [the] case, outright convinced [him] that going to trial 13 would be the best option to proceed.” Mot. 11:4-5. 14 Second, Petitioner contends that his attorneys failed to 15 inform him of the sentencing enhancement resulting from 16 his prior convictions. He argues that counsel declined 17 to negotiate a favorable plea agreement which could have 18 avoided the enhancement and yielded a lesser sentence. 19 Id. at 13:8-15. 20 But the evidence proffered by the government wholly 21 refutes Petitioner’s account. The government lodges the 22 plea agreement offered to Petitioner, 23 24 25 26 27 28 1

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 Petitioner objects to the interrogatories on the basis of 19 attorney-client privilege. See Reply 1. However, the Court entered an order on April 21, 2020, “find[ing] that by filing a 20 Motion to Vacate alleging that Prior Defense Counsel provided 21 ineffective assistance of counsel, [Petitioner] has waived the attorney-client privilege with respect to communications with 22 Prior Defense Counsel, insofar as those communications concern events and facts relevant to [Petitioner’s] claims that Prior 23 Defense Counsel provided ineffective representation in the manner described in the Motion to Vacate.” Order re Gov’t’s Ex Parte 24 Appl. 6:11-20, ECF No. 207; see also United States v. Yoo Taik Kim, No. CR 08-1510-GW, 2015 WL 12851373, at *4 (C.D. Cal. July 25 30, 2015) (citing Bittaker v. Woodford, 331 F.3d 715, 719 (9th 26 Cir. 2003)) (“[A] party asserting a claim implicitly waives attorney-client privilege for materials that the opposing party 27 needs in order to adequately dispute the claim.”). 28 1

2 In sum, trial counsel’s responses to the

3 government’s interrogatories indicate that they 4 comprehensively discussed with Petitioner the proposed 5 plea agreement and the risks of proceeding to trial, 6 including the sentencing enhancement based on 7 information filed under 21 U.S.C. § 851. See Radin 8 Interrogs. 1:21-24, 2:27-3:1, 3:13-16; see also Townsend 9 Interrogs. 1:23, 2:21; Savo Interrogs. 2:22-25, 3:13-15. 10 Courts have consistently rejected ineffective 11 assistance of counsel claims where, as here, the record 12 refutes a petitioner’s assertions that counsel failed to 13 negotiate or communicate a plea agreement.2 See, e.g., 14 Martinez, 2018 WL 6017025, at *8 (holding that 15 “[p]etitioner’s conclusory assertion that his trial 16 counsel did not explore a plea agreement is insufficient 17 to prove ineffective assistance of counsel”); United 18 2 Even assuming that Petitioner’s counsel had negotiated a 19 more favorable plea agreement than the one offered, there is ample evidence that Petitioner would not have accepted it. His 20 attorneys have detailed Petitioner’s vehemence in proceeding to 21 trial. See, e.g., Antony Decl. ¶ 8, ECF No. 217; Radin Interrogs. 2:16-17; Townsend Interrogs. 2:1-2. Petitioner 22 therefore fails to meet his burden to show “that there is a reasonable probability that . . . the result of the proceeding 23 would have been different.” Martinez v. Sec’y of Corr., CDCR, No. CV 17-4646-DMG (KK), 2018 WL 6017025, at *6 (C.D. Cal. Apr. 24 6, 2018) (quoting Strickland, 466 U.S. at 694); see also United States v. Ross, 584 F. App’x 502, 502-03 (9th Cir. 2014) 25 (affirming the district court’s denial of ineffective assistance 26 of counsel claim “because there is no evidence in the record that [petitioner] would have considered or accepted any pretrial 27 plea”). 28 1 States v. Campana-Barraza, No. CV 14-01975 SJO, 2015 WL

2 12847926, at *2 (C.D. Cal. Mar. 18, 2015) (denying

3 petitioner’s § 2255 motion where “[p]etitioner has not 4 submitted any corroborating evidence or independent 5 indicia to support his claims that he was misled by his 6 trial counsel”); Johnigan v. Hughes, No. CV 13-1465- 7 AB(AS), 2015 WL 965552, at *13 (C.D. Cal. Mar. 3, 2015) 8 (deeming unmeritorious a claim for ineffective 9 assistance of counsel where petitioner “provided 10 absolutely no evidentiary support for her claim” because 11 “[p]etitioner’s own self-serving statements are 12 insufficient to establish her allegations”); White v. 13 Ollison, 592 F. Supp. 2d 1227, 1250 (C.D. Cal. 2008) 14 (rejecting ineffective assistance of counsel claims 15 where “petitioner has provided absolutely no evidence 16 supporting any of his ineffective assistance of counsel 17 claims”). Because the record is replete with evidence 18 that Petitioner was fully informed of the available plea 19 deal and nevertheless proceeded to trial, Petitioner’s 20 claim fails. 21 2. Application of Sentencing Guidelines 22 Petitioner further argues that the Court erred in 23 categorizing him as a career offender at sentencing. 24 See Mot. 16:22-17:1, 20:1-10. Petitioner has already 25 challenged the substantive reasonableness of his 26 sentence on direct appeal, see United States v. Sawyers, 27 740 F. App’x 585 (9th Cir. 2018), so he may not 28 relitigate that same issue here. See Foster v. Chatman, 1 136 S. Ct. 1737, 1758 (2016) (Alito, J., concurring)

2 (“[A]s a general rule, federal prisoners may not use a

3 motion under 28 U.S.C. § 2255 to relitigate a claim that 4 was previously rejected on direct appeal.”); see also 5 Olney v. United States, 433 F.2d 161, 162 (9th Cir. 6 1965) (“Having raised this point unsuccessfully on 7 direct appeal, [petitioner] cannot now seek to 8 relitigate it as part of a petition under § 2255.”); 9 DuShane v. United States, No. 2:11-CR-00476-TLN-CKD (P), 10 2019 WL 6068687, at *1 (E.D. Cal. Nov. 15, 2019) (“[A] 11 Section 2255 motion cannot be used to relitigate a claim 12 that has already been raised and rejected on direct 13 appeal.”); United States v. Cosme, No. 10cr3044WQH, 2017 14 WL 118400, at *10 (S.D. Cal. Jan. 11, 2017) (“Having 15 litigated these same factual issues regarding the 16 conduct of [Petitioner’s] counsel on direct appeal, 17 [d]efendant may not relitigate the same issue under 28 18 U.S.C. § 2255.”). 19 3. Evidentiary Hearing 20 Finally, Petitioner contends that the Court should 21 grant an evidentiary hearing in this matter. Mot. 21:3- 22 6; see generally Req. for Hearing & Schedule Deadlines, 23 ECF No. 240. The Court must grant an evidentiary 24 hearing to make factual findings “[u]nless the motion 25 and the files and records of the case conclusively show 26 that the prisoner is entitled to no relief.” 28 U.S.C. 27 § 2255(b). The Court may properly deny a hearing if the 28 movant’s allegations, viewed against the record, fail to 1 state a claim for relief or are “palpably incredible or

2 patently frivolous.” United States v. Withers, 638 F.3d

3 1055, 1062-63 (9th Cir. 2011) (quoting United States v. 4 Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). 5 Here, an evidentiary hearing is unwarranted because 6 Petitioner’s assertions about his trial counsel’s 7 conduct are veritably belied by the record. See, e.g., 8 Oliver v. United States, No. SACV 11-0170 DOC, SACR 06- 9 0143 DOC, 2012 WL 3151244, at *3 (C.D. Cal. July 31, 10 2012) (denying an evidentiary hearing where petitioner’s 11 counsel submitted interrogatory responses showing that 12 “[p]etitioner was adequately informed, such that he was 13 capable of making a voluntary and intelligent choice 14 regarding his guilty plea”); Campana-Barraza, 2015 WL 15 12847926, at *3 (denying an evidentiary hearing where 16 petitioner’s trial counsel “answered sixteen 17 interrogatories directly refuting all of [p]etitioner’s 18 claims”). Moreover, even assuming that Petitioner’s 19 trial counsel were deficient in their performance, 20 Petitioner offers no evidence that he would have 21 proceeded differently. Petitioner’s allegations are 22 “palpably incredible” such that the Motion may properly 23 be denied without an evidentiary hearing. Withers, 638 24 F.3d 1062-63; see also 28 U.S.C. § 2255(b) (permitting a 25 district court to deny an evidentiary hearing where “the 26 motion and the files and records of the case 27 conclusively show that the prisoner is entitled to no 28 relief”). 1 III. CONCLUSION

2 Based on the foregoing, the Court DENIES the

3 Motion. 4 5 IT IS SO ORDERED. 6 7 DATED: July 6, 2021 _____/_s/_ R_o_na_ld_ S_._W_. L_e_w_____________ HONORABLE RONALD S.W. LEW 8 Senior U.S. District Judge 9

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