1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 3 AT TACOMA 4 KENNETH P. DESCOTEAUX, CASE NO. 18-cv-5325BHS 5 (16-cr-5246BHS & 17-cr-5074BHS) Petitioner, v. ORDER DENYING 6 DEFENDANT’S MOTION TO UNITED STATES OF AMERICA, VACATE, SET ASIDE, OR 7 CORRECT SENTENCE IN PART, Respondent. GRANTING EVIDENTIARY 8 HEARING AND RESERVING RULING IN PART, AND 9 APPOINTING COUNSEL 10 This matter comes before the Court on Plaintiff Kenneth Descoteaux’s 11 (“Descoteaux”) motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. 12 Dkt. 1. The Court has considered the pleadings filed in support of and in opposition to the 13 motion and the remainder of the files and hereby denies the motion in part, grants an 14 evidentiary hearing reserving ruling on the merits in part, and appoints counsel for 15 Descoteaux for the reasons stated herein. 16 I. FACTUAL & PROCEDURAL HISTORY 17 A. Factual Background 18 On April 28, 2016, Descoteaux was charged by complaint in the Western District 19 of Washington with one count of aggravated sexual abuse of a minor. United States v. 20 Descoteaux, No. 16-cr-5246-BHS (“2016 Case”), Dkt. 1. He was arrested in Wyoming 21 the same day. Id., Dkt. 4. On May 25, 2016, Descoteaux was charged by indictment in 22 1 this district with three counts of aggravated sexual abuse of a minor, abusive sexual 2 contact with a minor, and assault. Id., Dkt. 6.
3 On June 9, 2016, Descoteaux was also indicted by a grand jury sitting in the 4 Western District of Louisiana, Lake Charles Division. See United States v. Descoteaux, 5 No. 16-cr-0141-PM-KK. The Louisiana indictment charged Descoteaux with two counts 6 of aggravated sexual abuse of a minor, two counts of indecent behavior with a juvenile, 7 and assault. Id. 8 1. Allegations and Investigation
9 The charges in each indictment were based on allegations that Descoteaux 10 subjected his minor stepdaughter (“MV”) to repeated acts of sexual abuse occurring 11 between 2011 and 2015 in Louisiana and Washington. 2016 Case, Dkt. 1. During this 12 period, Descoteaux was married to MV’s mother, Jayme Howard (“Howard”), and the 13 family lived at Fort Polk in Louisiana and at Joint Base Lewis-McChord in Washington.
14 Id., Dkt. 43. From 2014 to 2015, Howard was deployed overseas, leaving MV alone with 15 Descoteaux as her sole caretaker. Id., Dkt. 1. By 2016, the family had moved to 16 Cheyenne, Wyoming. 17 In February 2016, a social worker at MV’s elementary school contacted law 18 enforcement after MV told a classmate about the abuse. Id. An investigation ensued, and
19 in mid-February MV “disclosed to the [child forensic interviewer]” that Descoteaux “had 20 sexually abused her over a period of 3 years . . . and that the abuse started when she was 21 8-years-old.” Id., ¶ 9. 22 1 Investigators interviewed Descoteaux several times. Initially, he denied having 2 any sexual contact with MV when questioned by law enforcement but in a later interview
3 told police that it was possible sexual contact had occurred if MV had initiated that 4 contact while he was extremely intoxicated. Id., ¶¶ 7, 15–17 (“I’m not denying it 5 happened, I’m admitting that if she’s saying this, then I’m guilty.”). 6 On April 22, 2016, Descoteaux was interviewed again.1 Id., ¶ 18. Although the 7 record contains only scant documentation of the conditions of that interview, the 8 complaint provides that after receiving a warning pursuant to Miranda v. Arizona, 384
9 U.S. 436 (1966), Descoteaux “freely and voluntarily” waived his rights. 2016 Case, Dkt. 10 1, ¶ 18. He then provided a statement to a FBI agent acknowledging “that he engaged in 11 65 instances of sexual acts with [MV] while they were living in Louisiana and 12 Washington.” Id. After he confessed, the FBI agent allowed Descoteaux to leave. He was 13 arrested six days later on April 28, 2016, id., Dkt. 4 at 7,2 the same day that prosecutors
14 filed a complaint against him in this District, id., Dkt. 1. 15 After his arrest, Descoteaux contacted Howard from a recorded phone line. One 16 conversation was as follows: 17 MS. HOWARD: Why’d you do this to us, Ken? 18 MR. DESCOTEAUX: I don’t know. I mean, like at the time, when it was happening, I knew it was wrong. But at the same time, it was like -- I 19 knew it was wrong, but it was like (Inaudible). So it felt wrong, but it just didn’t feel that wrong, you know. 20
21 1 As explained below, the motion disputes the factual circumstances of the interview and the voluntary nature of the confession. See Dkt. 1 at 7–9. 22 2 The Court refers to the pagination generated by the CM/ECF system throughout. 1 MS. HOWARD: Yeah. 2 MR. DESCOTEAUX: So it’s like, oh, yeah, hey. She -- she wants it; she 3 likes it, too. Okay. You know what I mean? It’s one of those things where - - just poor judgment, lack of -- you know, [MV] really did give me all the 4 love and attention that I craved in our marriage. What you didn’t give me, [MV] gave me. And that’s -- you know, I know it’s wrong. 5 Id., Dkt. 14-3 at 8–9. In another conversation with his mother, Linda Morin3 (“Morin”), 6 Descoteaux acknowledged abusing MV as follows: 7 MR. DESCOTEAUX: . . . [Howard] was . . . you know, she would ignore 8 me and stuff like that. [MV] is -- I’m not saying it’s her fault. But [MV] is the one that actually came on me to me and stuff like that. So I should 9 have known better, but that’s what happened, so.
10 MS. MORIN: Yes, you should have known better. 11 MR. DESCOTEAUX: Yep, I’m not -- but anyway, so that’s what happened. And, um, I was honest with Jayme about it. And [MV] 12 forgiven me. And we’ve talked about it. And she’s not like a bit -- least bit disturbed, or you know, damaged at all, you know. So -- and we’ve – 13 MS. MORIN: Oh. 14 MR. DESCOTEAUX: -- all talked about it. And – and things were going 15 straight. And then, you know – and that’s when the -- the government got involved. And you know how the government screws everything up in 16 my life. So that’s what they’re doing now.
17 Id. at 12.4 18 The District of Wyoming issued an order prohibiting Descoteaux from contacting 19 MV and Howard in May 2016. Id., Dkt. 22, Ex. A. This Court appointed Assistant 20
21 3 See Dkt. 16 at 2. 4 The Court reproduces this transcript and all others as they appear in the original 22 including typographical errors. See 2016 Case, Dkt. 14-3. 1 Federal Public Defender Linda Sullivan (“Sullivan”) to represent Descoteaux on the 2 charges pending in the Washington indictment. Id., Dkt. 11.
3 2. Sullivan’s Role in Plea Negotiations5 4 Sullivan began negotiating a plea agreement on Descoteaux’s behalf. By January 5 2017, the parties had reached an agreement to transfer the Louisiana indictment to this 6 district pursuant to Fed. R. Crim. P. 20 in anticipation of a joint resolution of the charges 7 then pending in two districts. 2016 Case, Dkt. 27. In February 2017 the Louisiana charges 8 were transferred to this District and opened in a new case as United States v. Descoteaux,
9 No. 17-cr-5074-BHS (“2017 Case”). 10 Less than a month after transfer of the Louisiana indictment, Sullivan moved to 11 withdraw as Descoteaux’s attorney “due to a breakdown in the attorney-client 12 relationship.” 2016 Case, Dkts. 30, 31. In February 2017, the Court granted the motion 13 and terminated Sullivan’s representation. Id., Dkt. 34.
14 3. Hester’s Role in Plea Negotiations 15 On March 3, 2017, the Court appointed attorney Lance Hester (“Hester”) to 16 represent Descoteaux. Id., Dkt. 36. Descoteaux alleges that Hester advised him that he 17 was bound by Sullivan’s plea negotiations. Dkt. 1 at 13. The Government asserts that 18 Hester’s plea agreement was “similar to [Sullivan’s agreement] in nearly all respects.”
20 5 The Government argues that any claim that Sullivan was ineffective is foreclosed by Descoteaux’s later entry into a plea agreement negotiated by Hester. Dkt. 7 at 16. However, 21 Descoteaux asserts that Hester ineffectively induced his plea by telling him he was bound by the earlier agreement that Sullivan had negotiated. Therefore, the Court briefly recounts the facts of 22 Sullivan’s representation and Descoteaux’s claims based on her plea-stage advice. 1 Dkt. 7. Ultimately, Hester negotiated a plea agreement that allowed Descoteaux to plead 2 guilty to one count from each indictment, specifically, abusive sexual contact with a child
3 in violation of 18 U.S.C. §§ 2244(a)(5), 2246(3), and 7 (count 4 of the Washington 4 indictment) and indecent behavior with a juvenile in violation of 18 U.S.C. §§ 7 and 13, 5 and Louisiana Revised Statute §§ 14.81(A)(1) and (H)(2) (count 3 of the Louisiana 6 indictment) (collectively, the “charged offenses”). 2016 Case, Dkt. 43, ¶ 1. In exchange, 7 the Government agreed to dismiss the remaining counts from both indictments. Id. 8 The parties stipulated to the factual basis for the plea agreement. Id., ¶ 6. Within
9 the stipulated statement of facts, Descoteaux admitted to multiple acts of sexual abuse 10 against MV. Id. Descoteaux further forfeited his right to appeal and to collaterally attack 11 the conviction, “except as it may relate to the effectiveness of legal representation.” Id. at 12 11–12. 13 4. Change of Plea Hearing
14 On April 27, 2017, Descoteaux pled guilty to both charges under the terms of 15 Hester’s plea agreement. 2016 Case, Dkt. 42; 2017 Case, Dkt. 9. The undersigned 16 presided over the hearing and conducted a plea colloquy pursuant to Rule 11 of the 17 Federal Rules of Criminal Procedure (“Rule 11”). 2016 Case, Dkt. 42; 2017 Case, Dkt. 9. 18 The Court placed Descoteaux under oath for the hearing. Dkt. 7-1 at 7. The prosecutor
19 read the elements and penalties of each offense aloud into the record. Id. at 9–12. The 20 Court then inquired as follows: 21 THE COURT: . . . Now, Mr. Descoteaux, do you have any questions about what the charges are that are set out in the plea agreement that you 22 1 are intending to plead guilty to or what the elements of those charges are or what the penalties are that can be imposed here? 2 THE DEFENDANT: No questions, Your Honor. 3 Id. at 12. The prosecutor then read the detailed stipulated offense conduct facts into the 4 record. Id. at 13–16. The Court then inquired as follows: 5 THE COURT: All right. Mr. Descoteaux, first I will note in the original plea 6 agreement on page 5, line 20, there was a partial deletion there and the date of that deletion. So with that change, now, you’ve been through, you’ve read 7 through this statement of facts and you’ve heard them re-read here, I think almost verbatim; are these facts true and accurate? 8 THE DEFENDANT: Yes, Your Honor. 9 Id. at 16. Descoteaux later affirmed under oath that he was guilty of the charged 10 offenses. Id. at 24. The Court found that Descoteaux “fully underst[ood] this plea 11 agreement and all the rights that are set out in this plea agreement that we’ve gone over 12 this morning.” Id. at 25. The Court also found “a factual basis for each of the elements of 13 the two charges that you have pled guilty to . . .” Id. The Court further concluded that 14 Descoteaux’s plea of guilty was knowing, intelligent, and voluntary. Id. 15 5. Sentencing Hearing 16 On September 5, 2017, the Court held a sentencing hearing and determined that 17 Descoteaux’s net offense level was 39 and that his criminal history category was I. Based 18 on these findings, Descoteaux faced a guideline sentencing range of 262 to 327 months. 19 Dkt. 7-1 at 34; see also United States Sentencing Commission, Guidelines Manual, Ch. 5, 20 Part A (Nov. 2016) (showing sentencing guideline for offender with net offense level of 21 22 1 39 and criminal history category of I). Pursuant to the plea agreement, both parties 2 requested a sentence of 276 months. Dkt. 7-1 at 35, 42.
3 During its presentation, the Government read the confession Descoteaux provided 4 to the FBI into the record in its entirety. Dkt. 7-1 at 35–38. During Hester’s presentation, 5 Descoteaux exercised his right of allocution and took full responsibility for the charged 6 offenses in open court. Id. at 44–47 (“Honorable Settle, I have committed terrible acts on 7 someone whom I love. . . . My intentions were never to cause any harm, but that does not 8 diminish the severity of my actions, nor soften the pain that was inflicted upon a sweet
9 child that deserved none of the horrors endured.”). Descoteaux also wrote a letter of 10 acceptance of responsibility that was filed with the Court before sentencing. Dkt. 46 at 11 17. The letter begins: “I have pleaded guilty because I am guilty.” Id. 12 Applying the sentencing factors set forth in 18 U.S.C. § 3553(a), the Court found 13 that “nearly every one of the factors point to the high end of the guideline range [of 327
14 months].” Id. at 48. However, the Court ultimately adopted the parties’ recommendation 15 and sentenced Descoteaux to 276 months to run concurrently on each charge. 2016 Case, 16 Dkt. 57; 2017 Case, Dkt. 26. The Court advised Descoteaux that he “gave up [his] right 17 to appeal this judgment based on [his] plea of guilty.” Dkt. 7-1 at 57. The Court also 18 advised that he had waived his right to appeal the sentence because the Court had
19 imposed a sentencing within the guideline range. Id. 20 Descoteaux did not challenge his conviction on direct appeal. Dkt. 1 at 1. 21 On April 23, 2018, Descoteaux filed the instant motion to vacate, set aside, or 22 correct sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. On April 30, 2018, the Court 1 ordered the Government to file an answer. Dkt. 3. On July 27, 2018, the Government 2 answered, arguing that Descoteaux had pled guilty voluntarily with the benefit of
3 effective counsel. Dkt 7. On December 6, 2018, Descoteaux replied. Dkt. 14. On 4 September 4, 2019, Descoteaux moved to expand the record with a declaration from his 5 stepmother. Dkt. 15. On September 26, 2019, the Government responded and filed a 6 cross motion to expand the record to include the complete transcript of the recorded 7 telephone call between Descoteaux and Morin. Dkt. 16. On October 10th, 2019, 8 Descoteaux replied. Dkt. 17.
9 B. Section 2255 Motion 10 Descoteaux asserts a claim for ineffective assistance of counsel under three legal 11 theories (grounds one, three, and four) and a claim that the Court failed to find a factual 12 basis to enter judgment on the plea (ground two). Dkt. 1. Both claims, however, are based 13 on the same two core factual assertions: first, that despite Descoteaux’s repeated, direct,
14 and widespread admissions of guilt, he is innocent of the extensive sexual abuse that his 15 conviction is based on, and second, that the statement he gave to the FBI resulted from 16 obvious coercion. See Dkt. 1 at 5 (“[Descoteaux] was not advised, nor did he know, that 17 an unsubstantiated claim by a troubled child, without a factual basis, was insufficient to 18 permit a conviction based solely on a coerced confession.”). Descoteaux also contends
19 that his stepmother’s declaration supports his claims of constitutional error and actual 20 innocence. Dkt. 15 at 2. Because Descoteaux is proceeding pro se, the Court construes 21 the motion’s four grounds for relief liberally as set forth below. Estelle v. Gamble, 429 22 U.S. 97, 106 (1976) (stating that a pro se document should be liberally construed). 1 1. Ground One 2 In ground one, Descoteaux asserts that his conviction should be set aside “because
3 he entered into a plea agreement unintelligently, unknowingly, and involuntarily” due to 4 ineffective assistance of counsel. Dkt. 1 at 4. As a factual basis for this ground,6 he 5 asserts that an FBI agent elicited his statement confessing to the abuse of MV “under 6 threat of being shot.” Id. Specifically, Descoteaux contends that when he appeared at a 7 FBI field office for a voluntary polygraph test prior to his arrest, an FBI agent obtained 8 his written consent to conduct the test but then “locked the door, and began yelling.” Id.
9 at 8. He further alleges that after locking the door, the FBI agent, named Stearns, 10 “repeatedly brandished his weapon,” causing him to believe that “he was in danger of 11 being shot.” Id. He also asserts that Agent Stearns would not let him “leave the room 12 until he wrote a confession.” Id. Only after Descoteaux “wrote the statement the way 13 [A]gent Stearns demanded, just the way the agent coached him to write it,” did Agent
14 Stearns “unlock[] the door” and allow him to leave. Id. at 9. 15 In this context, Descoteaux alleges that Hester performed deficiently because he 16 advised Descoteaux that “the facts” of the FBI’s alleged use of force “didn’t matter” and 17 that he “could either take the plea agreement or die in prison.” Id. Thus, the thrust of this 18 claim is that Hester either failed to recognize the significance of the coercion as a basis to
19 suppress the confession or failed to recommend suppression, and as a result, Descoteaux 20 21 6 The Court construes the “supporting facts” listed for each individual ground, Dkt. 1 at 22 4–17, to apply broadly across the four grounds in the motion. Estelle, 429 U.S. at 106. 1 “did not understand the options available to him at the time of the guilty plea, nor was he 2 aware of the consequences of the choices he was presented.” Id.
3 2. Ground Two 4 In ground two, Descoteaux claims that the Court “failed to find a factual basis to 5 support the guilty plea.” Id. at 7. The factual basis Descoteaux provides for this ground is 6 an assertion that he “could not and did not admit to a single fact concerning his guilt at 7 the change of plea hearing, depending completely on the coerced statement ilicited [sic] 8 by the FBI.” Id.
9 3. Ground Three 10 In ground three, which the Court finds substantially overlaps with ground one, 11 Descoteaux alleges that Sullivan and Hester inaccurately advised him during the plea 12 stage of this case, which “not only caused [him] to plead guilty unintelligently, but also 13 deprived [him of] the effective assistance of counsel.” Id. at 11–14. 14 Regarding the factual basis for Sullivan’s plea stage advice, Descoteaux asserts 15 that he “informed [Sullivan] that he had been coerced into making a statement” and 16 “requested that she file a motion to suppress,” but Sullivan refused to file the motion. Id. 17 at 12. Descoteaux further states that Sullivan tricked him into signing a speedy trial 18 waiver, causing him to remain in custody until his will was “overbourne” [sic] and he
19 pled guilty. Id. Finally, Descoteaux states that Sullivan advised him that if he did not 20 plead guilty, he would be convicted in both Washington and Louisiana, receive life 21 sentences, and die in prison and that this advice was ineffective. Id. at 10. 22 1 Regarding Hester’s advice at the plea stage, Descoteaux explains that Hester told 2 him he was bound by the plea agreement that Sullivan negotiated. Id. at 13. Descoteaux
3 generally contends that Hester was ineffective at the plea stage for the same reasons as 4 Sullivan. First, he asserts that Hester also advised against an attempt to exclude the 5 allegedly coerced confession and that this advice was ineffective. Id. at 13 (“Hester also 6 advised that . . . mitigating the sentenc[ing] exposure was Mr. Descoteaux’s only 7 defense.”). Second, he alleges that Hester’s subsequent advice to plead guilty constituted 8 the ineffective assistance of counsel, rendering the plea involuntary. This is so,
9 Descoteaux asserts, because of Hester’s failure to competently assess the suppression 10 issue in light of Descoteaux’s actual innocence, which Descoteaux alleges he maintained 11 to Hester. Id. at 11 (“counsel advised Mr. Descoteaux that “because of the coerced 12 statement it didn’t matter that the initial allegation was untrue.”). Thus, according to the 13 motion, Descoteaux made Hester aware that both MV’s allegations and his statement to
14 the FBI were false, yet Hester advised him his innocence did not matter because of the 15 false confession. Id. 16 Finally, and although these events did not occur at the plea stage, Descoteaux 17 asserts that Hester was ineffective in advising him to take responsibility for the crimes at 18 sentencing by (1) writing a letter to the court that demonstrated remorse and (2) not
19 objecting to the offense conduct facts as detailed in the presentence report. See id. at 13 20 (“Mr. Descoteaux was once again directed to write a confession to avoid dying in prison. 21 This time Mr. Hester advised Mr. Descoteaux to write a letter to the judge taking 22 responsibility for the crime he was innocent of.”). 1 4. Ground Four 2 In ground four, Descoteaux contends that he was denied counsel after sentencing,
3 a critical stage in the proceedings. Id. at 16. The factual basis for this ground is 4 Descoteaux’s assertion that Hester deprived him of any “meaningful advice” after 5 sentencing occurred. Id. 6 II. DISCUSSION 7 A. Standards of Review 8 1. 28 U.S.C. § 2255 Under § 2255, the Court may grant relief to a federal prisoner who challenges the 9 imposition or length of his incarceration on the ground that: (1) the sentence was imposed 10 in violation of the Constitution or laws of the United States; (2) the Court was without 11 jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum 12 authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. 13 § 2255(a). 14 An inmate filing a claim for federal habeas relief is entitled to an evidentiary 15 hearing “[u]nless the motion and the files and records of the case conclusively show that 16 the prisoner is entitled to no relief.” Id. § 2255(b). The Ninth Circuit has characterized 17 this standard as requiring an evidentiary hearing when “the movant has made specific 18 factual allegations that, if true, state a claim on which relief could be granted.” United 19 States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (citing United States v. Schaflander, 20 743 F.2d 714, 717 (9th Cir. 1984)). 21 22 1 2. Ineffective Assistance of Counsel 2 The Sixth Amendment guarantees a criminal defendant the right to effective
3 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court 4 evaluates ineffective assistance of counsel claims under the two-prong test set forth in 5 Strickland. To prevail under Strickland, a defendant must prove (1) that his counsel’s 6 performance was deficient and (2) that this deficient performance was prejudicial. Id. The 7 Court must apply a “strong presumption that counsel’s conduct falls within the “wide 8 range of reasonable professional assistance.” Id. at 689.
9 In Hill v. Lockhart, the Supreme Court confirmed that the Strickland test governs 10 challenges to guilty pleas based on the ineffective assistance of counsel. 474 U.S. 52, 58– 11 59 (1985). A defendant who pleads guilty upon the advice of counsel may only attack the 12 voluntary nature of the guilty plea by showing that the advice he received from counsel to 13 enter the plea was ineffective. Id. at 56–57 (citing Tollet v. Henderson, 411 U.S. 258, 267
14 (1973)). An attorney’s advice to enter a plea is ineffective if it falls below ‘“the range of 15 competence demanded of attorneys in criminal cases.”’ Id. at 56 (quoting McMann v. 16 Richardson, 397 U.S. 759, 771 (1970)). With respect to Strickland’s prejudice 17 requirement, “the defendant must show that there is a reasonable probability that, but for 18 counsel’s errors, he would not have pleaded guilty and would have insisted on going to
19 trial.” Id. at 59 (footnote omitted). A “reasonable probability” is “a probability sufficient 20 to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 21 22 1 B. Application to § 2255 Petition 2 As explained below, the Court grants an evidentiary hearing and reserves ruling on
3 the merits of ground one and ground three because those grounds rely on factual 4 allegations that are unresolved by the current record. The Court further concludes that 5 ground two and ground four are meritless. Therefore, the Court denies ground two and 6 ground four. 7 1. Ground One and Ground Three 8 Descoteaux’s ineffective assistance claims in ground one and ground three arise
9 out of Hester’s advice at the plea stage. Dkt. 1 at 4–5, 11–14. A defendant has the right to 10 effective assistance of counsel during plea bargain negotiations. Missouri v. Frye, 566 11 U.S. 134, 144–145 (2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). 12 Counsel who misadvises a defendant about the law or who improperly coerces a 13 defendant to accept a plea bargain may be found deficient. See Lafler v. Cooper, 566 U.S.
14 156, 168 (2012) (“If a plea bargain has been offered, a defendant has the right to effective 15 assistance of counsel in considering whether to accept it.”). The Government contends 16 that Descoteaux’s claims can be divided into three categories as follows: “(1) those that 17 challenge the voluntariness of Descoteaux’s plea, and accordingly, his waiver of his right 18 to appeal and seek collateral relief, (2) his claims relating to ineffective assistance of
19 counsel, and (3) those remaining allegations that are without merit due to his knowing 20 and voluntary waiver.” Id. at 12. Following this division of claims, the Government 21 addresses the voluntary nature of the plea separately from the confession and 22 effectiveness of representation issues. Id. at 12–21. Under the prevailing standards set 1 forth above, however, these issues must be analyzed together. In other words, because the 2 Court is considering a § 2255 motion challenging a guilty plea based on the ineffective
3 assistance of counsel, whether Descoteaux pled guilty voluntarily—and thus, whether the 4 waiver provision in the plea agreement validly forecloses consideration of the 5 suppression issue—depends on whether Hester’s advice to enter the plea was competent. 6 Hill, 474 U.S. at 56 (citing McMann, 397 U.S. at 771). 7 With this relationship of issues in mind, the Court turns to the motion. The 8 Government construes grounds one and three too narrowly when it summarizes
9 Descoteaux’s argument as “his plea and waiver were somehow involuntary because he 10 was facing a potential life sentence.” Dkt. 7 at 15. Instead, the motion asserts that 11 Descoteaux’s plea was involuntary because Hester misadvised him regarding the viability 12 of suppression and whether to accept the plea after allegedly being aware of (1) the 13 conditions of the confession (as alleged in the motion) and (2) Descoteaux’s claims of
14 actual innocence. Dkt. 1 at 4–5, 11, 13–14. As a result, Hester’s advice about suppressing 15 the confession allegedly obtained at gunpoint bears directly on analysis of the 16 competency of his advice to enter the plea. 17 District courts may dismiss a § 2255 motion without a hearing when the 18 petitioner’s allegations, when viewed against the court’s record, either do not give rise to
19 a claim for relief or are “palpably incredible or patently frivolous.” Schaflander, 743 F.2d 20 at 717 (citing Blackledge v. Allison, 431 U.S. 63, 76 (1977); Baumann v. United States, 21 692 F.2d 565, 571, 581 (9th Cir. 1982)). Normally, a claim that seasoned counsel failed 22 to recognize the constitutional significance of a law enforcement agent having dictated 1 his client’s confession at gunpoint would be “palpably incredible or patently frivolous.” 2 Id. However, Descoteaux’s claims here rely on his factual allegations about the
3 confession and Hester’s subsequent advice, circumstances which are entirely outside of 4 the Court’s record and which he claims impacted his decision to plead guilty. Dkts. 1, 14. 5 Moreover, Descoteaux attributes error (based on Hester’s alleged incompetence regarding 6 whether to enter the plea) to evidence in the record establishing his guilt, including his 7 admissions during the change of plea hearing and at sentencing. See Dkt. 1 at 4, 5, 11–14. 8 Ultimately, the Court relies on the specific facts alleged by Descoteaux in the motion in
9 concluding that a claim that counsel failed to recognize the viability of suppressing a 10 confession obtained at gunpoint given the client’s contemporaneous assertions of 11 innocence states a prima facie case of incompetent performance under Strickland. 12 When a defendant who has pled guilty is asserting ineffective assistance of 13 counsel, Strickland’s prejudice requirement focuses on whether the defendant would have
14 proceeded to trial but for counsel’s errors. Hill, 474 U.S. at 59. The Government argues 15 that Descoteaux fails to demonstrate prejudice even if Hester had successfully suppressed 16 the confession in light of the other inculpatory evidence the record contains.7 Dkt. 7 at 17 18. In response, Descoteaux maintains that he would have proceeded to trial but for 18
19 7 The Government also argues that Descoteaux cannot show prejudice because Hester’s plea agreement purportedly reduced the term of incarceration by two years in comparison to 20 Sullivan’s agreement. Dkt. 7 at 17–18 (citing Sam v. United States, No. CR-12-08176-PCT-JAT, 2015 WL 9897779, at *8 (D. Ariz. Dec. 2, 2015), report and recommendation adopted sub nom. 21 Sam v. United States, No. CR-12-8176-PCT-JAT, 2016 WL 245460 (D. Ariz. Jan. 21, 2016)). The record, however, contains no indication of the contents of any plea agreement negotiated by 22 Sullivan. Therefore, the Court is unable to evaluate prejudice or lack thereof on this basis. 1 Hester’s allegedly ineffective advice regarding the viability of suppression, Dkt. 14 at 2, 2 and challenges the Government’s assertion that statements he made at the plea hearing
3 and/or sentencing conclusively resolve his claims in light of the alleged extra-record 4 circumstances of the confession, id. at 3 (citing Machibroda v. United States, 368 U.S. 5 487, 494–96 (1962) (an evidentiary hearing is required “where the issues raised . . . . 6 relate[] primarily to purported occurrences outside the courtroom and upon which the 7 record could, therefore, cast no real light.”)). 8 At trial Descoteaux faced the prospect of a sentence much longer than the 276
9 months contemplated by the plea agreement. For example, the maximum penalty on the 10 abusive sexual contact charge alone was life in prison. 2016 Case, Dkt. 43, ¶ 4. 11 Moreover, following a conviction at trial the Government would have been free to argue 12 that any sentence imposed should run consecutively. Therefore, the Court agrees that to 13 establish a lack of prejudice the Government need only demonstrate that the record
14 contains evidence sufficient to establish Descoteaux’s commission of the elements of the 15 charged offenses. 16 The elements of the offense of abusive sexual contact of a child are as follows: 17 First, the Defendant knowingly engaged in sexual contact with a child; 18 Second, at the time, the child was under the age of twelve years; and
19 Third, the offense was committed within the special maritime and territorial 20 jurisdiction of the United States. Id., ¶ 3. 21 The elements of the offense of indecent behavior with a juvenile are as follows: 22 1 First, the Defendant was over the age of seventeen (17) and more than two years 2 older than the victim, who was not yet seventeen (17);
3 Second, the Defendant committed a lewd or lascivious act upon the person or in 4 the presence of a child; 5 Third, the Defendant intended to arouse or gratify either his own or the victim’s 6 sexual desires; and 7 Fourth, the offense was committed within the special maritime and territorial 8 jurisdiction of the United States. Id.
9 Upon review, the Court’s record contains the following evidence: 10 (1) MV’s statements recounting sexual abuse in both jurisdictions. Id., Dkt. 1, ¶¶ 11 5, 6, 8, 9, 10, 11, 12, 13; Id., Dkt. 14-1. 12 (2) Descoteaux’s recorded admission to Howard that “when it was happening I 13 knew it was wrong” but MV wanted “it” and liked “it” too. Id., Dkt. 14-3 at 9.
14 (3) Descoteaux’s recorded admission to Morin that MV was the one who “came 15 on” to him, that he “should have known better, but that’s what happened . . . .” 16 and that MV has “forgiven” him and was not “damaged . . .” Id. at 12. 17 (4) Descoteaux’s recorded attempts to ingratiate himself to MV and Howard after 18 his arrest. Id. at 17–18.
19 (5) Descoteaux’s handwritten confession admitting to committing at least 60 20 sexual acts with MV in both jurisdictions beginning when she was eight years 21 old. Id., Dkt. 14-2. 22 1 (6) The statement of facts in the plea agreement documenting numerous sexual 2 acts with MV in both jurisdictions, which Descoteaux adopted in full while
3 under oath. Id., Dkt. 43; see also Dkt. 7-1 at 14–17. 4 (7) Descoteaux’s acknowledgement of guilt at sentencing during allocution. Dkt. 5 7-1 at 44–48. 6 (8) Descoteaux’s acknowledgement of guilt at sentencing through a letter of 7 acceptance filed with the Court. 2016 Case, Dkt. 46 at 17. 8 Regarding items one, five, six, seven, and eight, the Court finds that each
9 individually establish the occurrence of at least one act of sexual abuse in Washington 10 and in Louisiana. Regarding items two and three, the recorded admissions, the Court 11 concludes that when taken together they directly establish that Descoteaux committed at 12 least one act of sexual abuse as discussed in further detail below. The recorded 13 admissions are also strong circumstantial evidence corroborating a finding that multiple
14 acts occurred in both locations because Descoteaux references an ongoing pattern of 15 abuse. See Dkt. 14–3 at 9 (“When it was happening, I knew it was wrong.”) (emphasis 16 added). 17 Item four refers to another recorded phone conversation where Descoteaux 18 lamented to MV that he would not be able to buy her ice cream and cinnamon muffins
19 anymore due to being jailed. Dkt. 14-3 at 17–18. At sentencing, the undersigned held that 20 this contact was inappropriate, but also rejected an enhancement for obstruction of justice 21 based on the contact and further found that it was not uncommon for a defendant to 22 ingratiate himself with a victim in hopes of gaining the victim’s support for a plea of 1 leniency at sentencing. Dkt. 7-1 at 32–34. In the context of this motion, however, the 2 Court notes that while a defendant’s attempt to ingratiate himself to a child who has
3 accused him of sexual abuse in hopes of gaining leniency at sentencing may in some 4 cases be consistent with a theory of innocence, it is also entirely consistent with a theory 5 of guilt, especially when viewed in conjunction with the recorded admissions. Therefore, 6 the Court concludes that item four is circumstantial evidence that will be weighed in its 7 analysis of whether the record contains sufficient evidence to establish Descoteaux’s 8 commission of at least one act sufficient to meet the elements of each charged offense.
9 Next, the Court examines the weight of each evidentiary item and whether 10 Descoteaux attributes error to that item. Item one refers to several statements attributed to 11 MV detailing the abuse. The complaint summarizes these statements, including MV’s 12 February 17, 2016 disclosure to a child forensic interviewer that Descoteaux had 13 repeatedly forced her to perform sex acts while in Washington and Louisiana. 2016 Case,
14 Dkt. 1. The verbatim transcript of MV’s forensic interview also appears in the Court’s 15 record. Id., Dkt. 14-1. The statements attributed to MV in the complaint and in the 16 forensic interview transcript are hearsay, and certain statements involve multiple layers of 17 hearsay. Although MV’s report of abuse is entirely consistent with the facts known to the 18 Court at the time of Descoteaux’s plea, it is difficult for the Court to assign weight to
19 item one in the abstract and without the ability to weigh MV’s credibility. 20 Turning to items two and three, the Court finds Descoteaux’s admissions on 21 recorded phone lines that he knew “it” was wrong while it was happening, that MV 22 “came on” to him, that MV wanted “it” and liked “it,” that he should have known better, 1 but “that’s what happened,” that MV had “forgiven” him, that MV was not “damaged,” 2 and that “things were going straight” when the government got involved, 2016 Case, Dkt.
3 14-3 at 9, 12, together establish that he committed at least one act of sexual abuse against 4 MV. Descoteaux made the admissions on phone calls occurring shortly after his arrest 5 and before the District of Wyoming entered a no-contact order prohibiting him from 6 communicating with Howard and MV. As noted above, the recorded admissions—which 7 are both uncontroverted and unexplained by the facts stated in Descoteaux’s motion— 8 create a strong circumstantial inference that he committed more than one act in each
9 jurisdiction because they reference a pattern of abuse. Similarly, the admissions also 10 corroborate MV’s report and the plea agreement facts stating that multiple acts took place 11 in each jurisdiction. The Court will therefore consider items two and three when 12 determining whether the record contains sufficient evidence to establish that Descoteaux 13 committed the charged offenses.
14 Regarding item four, the Court determined above that Descoteaux’s attempt to 15 ingratiate himself to MV shortly after arrest by reminding her that he would no longer be 16 able to buy her sweets is consistent with guilt but could be consistent with the theory of 17 innocence advanced by the petition. Therefore, the Court will not consider item four. 18 Item five is Descoteaux’s handwritten confession admitting to sexually abusing
19 MV over 60 times in Washington and Louisiana. Id., Dkt. 14-2. Descoteaux challenges 20 his attorney’s effectiveness by describing the confession as involuntary and indicates he 21 would have gone to trial but for this error. Therefore, the Court sets the confession aside. 22 See Hill, 474 U.S. at 59. 1 Item six refers to the statement of facts in the plea agreement, 2016 Case, Dkt. 43, 2 that Descoteaux admitted during the plea colloquy, Dkt. 7-1 at 17. “[S]tatements at the
3 plea colloquy carry a strong presumption of truth.” Muth v. Fondren, 676 F.3d 815, 821 4 (9th Cir. 2012), as amended (May 31, 2012) (citing Allison, 431 U.S. at 73–74 (“[T]he 5 representations of the defendant [at a plea hearing] . . . constitute a formidable barrier in 6 any subsequent collateral proceedings. Solemn declarations in open court carry a strong 7 presumption of verity.”); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) 8 (“Statements made by a defendant during a guilty plea hearing carry a strong
9 presumption of veracity in subsequent proceedings attacking the plea.”); United States v. 10 Morrison, 113 F.3d 1020, 1021 (9th Cir. 1997) (“Any attempt to contradict the factual 11 basis of a valid plea must fail.”); United States v. Anderson, 993 F.2d 1435, 1438 (9th 12 Cir. 1993) (“Statements made by a criminal defendant contemporaneously with his plea 13 should be accorded great weight because solemn declarations made in open court carry a
14 strong presumption of verity.”) (internal quotations and brackets omitted)). 15 The Ninth Circuit has expressed agreement with other circuits holding that a 16 petitioner’s collateral challenge resting on allegations that directly contradict the 17 petitioner’s plea statements ordinarily must fail. Muth, 676 F.3d at 821–822 (citations 18 omitted); see also United States v. Lemaster, 403 F.3d 216, 220–21 (4th Cir. 2005) (“[I]n
19 the absence of extraordinary circumstances, allegations in a § 2255 motion that directly 20 contradict the petitioner’s sworn statements made during a properly conducted Rule 11 21 colloquy are always palpably incredible and patently frivolous or false.”). In this case, the 22 Court conducted a plea colloquy pursuant to Rule 11 where Descoteaux affirmed the 1 truth of the facts in the plea agreement. Dkt. 7-1 at 2–27; see also 2016 Case, Dkt. 42. 2 Therefore, the Court presumes the facts in the plea agreement are true absent an
3 extraordinary reason explaining a contradiction of those facts on collateral attack. 4 Item seven and item eight refer to Descoteaux’s acknowledgements of guilt at 5 sentencing via letter and via allocution. Descoteaux alleges that Hester advised him to 6 accept responsibility at sentencing, which he did because Hester had also misadvised him 7 about the likelihood of suppressing the confession and whether to accept the plea after 8 allegedly being aware of (1) the circumstances of the confession and (2) his claims of
9 actual innocence. Dkt. 1 at 4–5, 11, 13–14. Like the confession, the Court will not 10 consider either of Descoteaux’s acknowledgements of guilt at sentencing because the 11 motion attributes error to them based on the ineffective assistance of counsel. 12 In sum, items one, four, five, seven, and eight will not be considered for the 13 reasons stated above. The Court finds that the recorded admissions, items two and three,
14 together establish that Descoteaux committed at least one act of sexual abuse against MV 15 and are strong circumstantial evidence corroborating Descoteaux’s guilt as indicated by 16 the statement of facts in the plea agreement. However, the Court is unable to rely on the 17 admissions to conclusively establish the conduct elements of each of the charged offenses 18 because the admissions are vague. Moreover, although courts differ over whether venue
19 can accurately be described as an element of an offense, the admissions provide no 20 evidence of Descoteaux’s location. This leaves item six—the statement of facts in the 21 plea agreement. The Court should presume the truth of those sworn admissions unless 22 1 Descoteaux presents extraordinary reasons explaining his motion’s contradiction with 2 them.
3 In Muth, the petitioner “offer[ed] no explanation for the contradiction between his 4 statements at the plea colloquy and his current claim . . . .” 676 F.3d at 822. In Lemaster, 5 a petitioner in the Fourth Circuit alleged that counsel failed to inform him about changes 6 in the plea agreement and the potential punishment he faced under the plea agreement. 7 403 F.3d at 222. The petitioner also alleged that he was threatened that he would be 8 denied adequate medical care unless he pled guilty. Id. The Fourth Circuit affirmed the
9 district court’s summary dismissal of petitioner’s motion because his statements during 10 the Rule 11 colloquy expressly belied each of his claims, and he “point[ed] to no other 11 extraordinary circumstance that would entitle him to an evidentiary hearing.” Id. at 222– 12 23. Conversely, Descoteaux attributes the factual contradiction between his admissions in 13 the plea and the motion to Hester’s ineffective advice regarding whether to plead guilty
14 despite (1) Hester’s alleged awareness of Agent Stearns’s extraction of his confession at 15 gunpoint and (2) his claims of actual innocence. While the Court observes that this post- 16 hoc explanation is improbable and likely incredible, that does not preclude a conclusion 17 that, if true, the facts alleged in the motion present an extraordinary explanation for the 18 factual contradiction between the plea agreement and the collateral attack. Moreover,
19 unlike the petitioner’s claims relating to counsel’s explanation of the plea agreement and 20 its attendant consequences in Lemaster, which were foreclosed by the court’s record of 21 the Rule 11 plea colloquy, Descoteaux’s claims here rely on his attorney’s decision to 22 advise him to plead guilty in light of the alleged extra-record circumstances of the 1 confession. Finally, Descoteaux attributes error to his Rule 11 admissions by asserting 2 that he would not have agreed to the plea agreement facts but for the allegedly
3 incompetent advice he received regarding the viability of suppressing a confession 4 obtained at gunpoint. The Court therefore concludes that neither the admissions nor the 5 admitted plea agreement facts establish that Descoteaux committed the charged offenses 6 sufficient to demonstrate a lack of prejudice on the motion. 7 Courts should hold a hearing on a § 2255 motion unless the motion, files, and 8 underlying records of the case “conclusively show” that the petitioner is entitled to no
9 relief. 28 U.S.C. § 2255(b). In this case, Descoteaux’s motion relies on extra-record 10 factual allegations that directly contradict, but are not foreclosed by, the factual 11 circumstances in the Court’s record. The off-record events are the conditions of the 12 confession and Hester’s advice regarding suppression and whether to enter a plea given 13 his alleged knowledge of the factual events described by the motion. The fact of
14 Descoteaux’s abuse of MV as stated in the plea agreement and the fact of the false 15 confession as alleged in the motion are mutually exclusive; both cannot be true. 16 Consequently, the merits of the motion hinge on the veracity of its factual allegations and 17 the credibility of its author. 18 In rare instances, credibility may be determined without an evidentiary hearing
19 when it is possible to “conclusively” decide the credibility question based on 20 “documentary testimony and evidence” in the record. Watts v. United States, 841 F.2d 21 275, 277 (9th Cir. 1988) (finding an evidentiary hearing unnecessary in a § 2255 case 22 where district court determined credibility by weighing petitioner’s habeas allegations 1 against statements made by petitioner in post-judgment pleadings) distinguished by Earp 2 v. Ornoski, 431 F.3d 1158 (9th Cir. 2005). Here, the Court is tasked with weighing the
3 credibility of the allegations in the motion against, as the Government argues, “the 4 victim’s credible allegations,” Dkt. 7 at 18, and the evidentiary items the Court 5 considered as described above. Although the recorded admissions strongly suggest that 6 Descoteux sexually abused MV on multiple occasions, the Court has found that the 7 recorded admissions, alone, are insufficient to establish the charged offenses as explained 8 above. And, as the motion provides an improbable yet extraordinary reason—a
9 confession obtained at gunpoint—for its factual contradiction to the plea agreement 10 challenged by the motion, the Court does not rely on Descoteaux’s admissions during the 11 Rule 11 colloquy either. Ultimately, the fact that the motion attributes Descoteaux’s 12 admissions of guilt at the plea and sentencing hearings to specific allegations of attorney 13 error that are unrebutted by the current record is enough to persuade the Court that this is
14 not one of the “rare” cases where credibility can be resolved without an evidentiary 15 hearing. Said another way, the Court requires an evidentiary hearing to determine the 16 veracity of factual allegations that are outside the record because the current record does 17 not “conclusively” foreclose them. Machibroada, 368 U.S. at 494–96 (1962) (evidentiary 18 hearing required where the issues raised relate primarily to purported occurrences outside
19 the courtroom); see also Bauman, 692 F.2d at 571 (“a hearing is mandatory whenever the 20 record does not affirmatively manifest the factual or legal individuality of the petitioner’s 21 claims.”). An evidentiary hearing would also benefit the Court in resolving the motion on 22 credibility grounds. At a hearing, for example, the undersigned would hear testimony 1 from Descoteaux, Hester, and/or FBI Agent Stearns. With live testimony from relevant 2 witnesses the Court may test Descoteaux’s story, gauge the witnesses’ demeanor in open
3 court, and ultimately determine the veracity of the factual allegations supporting ground 4 one and ground three in the motion. Therefore, the Court grants an evidentiary hearing on 5 ground one and ground three and reserves ruling on the merits of those grounds. 6 2. Ground Two and Ground Four 7 Descoteaux’s remaining claims challenge (1) the sufficiency of the factual basis 8 for the plea and (2) Hester’s representation or lack thereof after sentencing. Dkt. 1 at 7–
9 10, 16–17. 10 a. Sufficiency of Factual Basis for Plea (Ground Two) 11 In ground two, Descoteaux asserts that his conviction must be set aside because 12 the Court’s alleged error in “fail[ing] to find a factual basis to support the guilty plea.” 13 Dkt. 1 at 7. Rule 11 provides that “[b]efore entering judgment on a guilty plea, the court
14 must determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The 15 Supreme Court has held that a district judge satisfies the requirements of Rule 11(b)(3) 16 when the judge determines “that the conduct which the defendant admits constitutes the 17 offense charged . . . .” McCarthy v. United States, 394 U.S. 459, 467 (1969) (quoting 18 advisory committee note to Rule 11).
19 In this case, Descoteaux makes no credible argument that the facts he admitted to 20 in paragraph six of the plea agreement fail to constitute the elements of the charged 21 offenses. Instead, he contends that the Court failed to find a factual basis for the plea 22 because he “could not and did not admit to a single fact concerning his guilt at the change 1 of plea hearing, depending completely on the coerced statement ilicited [sic] by the FBI.” 2 Dkt. 1 at 7. This argument is meritless. The stipulated statement of facts, which
3 Descoteaux admitted were true and accurate under oath in open court, Dkt. 7-1 at 17, 4 allowed the Court to find an independent basis in fact to render judgment on the plea. For 5 example, Descoteaux’s admission that he made contact with MV’s vulva both digitally 6 and orally on more than one occasion for the purpose of his sexual gratification provided 7 a clear factual basis for the Court to conclude that the elements of the charged offenses 8 had been established. See id. at 15–17. Moreover, the fact that Descoteaux now
9 challenges the plea agreement’s factual admissions does not prevent the Court from 10 relying on those sworn admissions as a basis for the Court to enter judgment on the plea 11 pursuant to Fed. R. Crim. P. 11(b)(3). Therefore, Descoteaux’s claim that the Court failed 12 to establish a sufficient factual basis to support the guilty plea (ground two) is denied. 13 b. Lack of Post-Sentencing Counsel (Ground Four)
14 Descoteaux contends that he was denied counsel at a critical stage of the 15 proceeding because Hester “refused to provide any meaningful advice after sentencing.” 16 Dkt. 1 at 16–17. The Government counters that Descoteaux has failed to establish that 17 Hester refused a “direct and unambiguous order” to file an appeal, which it asserts is 18 dispositive to this ground. Dkt. 7 at 18 (citing United States v. Sandoval-Lopez, 409 F.3d
19 1193, 1198 (9th Cir. 2005)). In reply, Descoteaux cites Roe v. Flores-Ortega, 528 U.S. 20 470, 480 (2000) (“Flores-Ortega”), in support of his position. Dkt. 14 at 3. Flores-Ortega 21 provides in pertinent part: 22 1 Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational 2 defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably 3 demonstrated to counsel that he was interested in appealing.
4 528 U.S. at 480. In considering whether counsel has a duty to consult with his client 5 about an appeal, “a highly relevant factor . . . will be whether the conviction follows a 6 trial or a guilty plea, both because a guilty plea reduces the scope of potentially 7 appealable issues and because such a plea may indicate that the defendant seeks an end to 8 judicial proceedings.” Id. The court should also consider factors related to the plea, such 9 as “whether the defendant received the sentence bargained for as part of the plea and 10 whether the plea expressly reserved or waived some or all appeal rights.” Id. 11 Applying Flores-Ortega, the Court concludes that Descoteaux has not established 12 that Hester had a duty to consult with him about an appeal, and therefore Hester was not 13 ineffective on that basis. Under the first prong of the test, the Court finds that there was 14 no reason for Hester to think that a rational defendant would want an appeal. After all, the 15 Court imposed a sentence that was the subject of a bargained for plea agreement 16 containing a complete waiver of appeal. 2016 Case, Dkts. 43, 57. Moreover, Hester had 17 no reason to think Descoteaux wanted to appeal even if the facts Descoteaux alleges 18 regarding the confession are true because the confession occurred well before Descoteaux
19 affirmed his wish to plead guilty to the charged offenses in open court. Last, the Court 20 clearly notified Descoteaux at the sentencing hearing that he had waived his right to 21 appeal when it imposed a sentence within the guideline range. Therefore, Hester had no 22 reason to believe that a rational defendant in Descoteaux’s shoes would desire an appeal. 1 Second, Descoteaux fails to establish that he “reasonably demonstrated to [Hester] 2 that he was interested in appealing” the sentence. See, e.g., Dkt. 1 at 16–17; see also
3 Flores-Ortega, 528 U.S. at 480. For example, the motion fails to make a factual 4 allegation that Descoteaux communicated his alleged interest in appealing to Hester after 5 the sentence was imposed. Dkt. 1 at 16–17. “Conclusory allegations which are not 6 supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 7 24 F.3d 20, 26 (9th Cir. 1994) (citing Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 8 1970)). Because Descoteaux makes no factual allegation that would support a finding that
9 he reasonably demonstrated his interest in taking an appeal to Hester, the Court concludes 10 that Hester did not commit unprofessional errors by failing to do so. Accordingly, 11 Descoteaux’s claim that he was denied counsel during a critical stage of the proceeding 12 (ground four) is denied.8 13 C. Remaining Issues
14 First, Descoteaux asserts a new claim based on ineffective assistance of counsel in 15 reply—specifically, that counsel incorrectly advised him the Government would have 16 two opportunities to avoid suppression of the evidence: one in Washington and one in 17 Louisiana. Dkt. 14 at 1. In other words, Descoteaux alleges ineffectiveness because 18 “counsel did not comprehend, or chose not to explain, the concepts of issue preclusion or
8 To the extent that Descoteaux argues that the Court’s brief mention of the high 20 recidivism rates for sex offenses imposed a duty on Hester to appeal a sentence “based on clearly erroneous information,” Dkt. 1 at 17, he fails to provide authority supporting this proposition. 21 Nor does he establish that this alleged error by the Court would require Hester to appeal on his behalf. Therefore, Descoteaux fails to convince the Court that Hester had a duty to consult with 22 him after sentencing, and Hester was not ineffective on that basis. 1 claim preclusion.” Id. A habeas petitioner, however, may not raise a claim for the first 2 time in a reply brief. See, e.g., Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.
3 1994). Accordingly, the Court declines to consider the new claim raised for the first time 4 in reply. 5 Second, the Court has concluded that an evidentiary hearing is required in order to 6 resolve credibility issues presented by ground one and ground three. Therefore, the Court 7 appoints counsel for Descoteaux. See Rule 8(c) of the Rules Governing Section § 2255 8 Cases for the United States District Courts.
9 Third, in a motion to expand the record Descoteaux contends that a declaration 10 from his stepmother, Ramona Descoteaux, supporting his claim of actual innocence 11 should be “readily admitted under Federal Rule of Civil Procedure 15(c)(2), Rule 15(d), 12 or this Court’s broad powers under § 2255’s Rule 7 [sic] to expand the record.” Dkt. 15 at 13 1. The Government responds that if the Court grants the motion, it should also expand the
14 record to include a transcript of a recorded phone call between Descoteaux and Morin, a 15 transcript that is already excerpted in the record at 2016 Case, Dkt. 14-3 at 12– 13 and 16 which forms part of the basis of the recorded admissions the Court has discussed 17 extensively above. Because this case will proceed to a hearing where the Court will 18 determine the merits of the motion on credibility grounds, the Court grants both motions
19 to expand the record. Rule 7 of the Rules Governing Section § 2255 Cases for the United 20 States District Courts. The record will therefore be supplemented with the declaration of 21 Ramona Descoteaux, Dkt. 15 at 4–6, and the transcript of the telephone call between 22 Descoteaux and Morin, Dkt. 16-1. 1 III. ORDER 2 Therefore, it is hereby ORDERED that Descoteaux’s motion to vacate, set aside,
3 or correct sentence, Dkt. 1, is DENIED in part and GRANTED in part with ruling 4 RESERVED as stated herein. Descoteaux’s motion to expand the record, Dkt. 15, and 5 the Government’s cross-motion to expand the record, Dkt. 16, are GRANTED. 6 The Court APPOINTS counsel for Descoteaux. After counsel has appeared, the 7 parties shall consult and provide a status report with potential dates for an evidentiary 8 hearing by December 4, 2019.
9 Dated this 22nd day of November, 2019. A 10 11 BENJAMIN H. SETTLE 12 United States District Judge
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