Fox v. United States

• Court: District Court, D. Nevada
• Decided: February 12, 2020
• Docket: 3:19-cv-00371
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 9

DISTRICT OF NEVADA 10

11 UNITED STATES OF AMERICA, Case No. 3:15-cr-00061-HDM-WGC Case No. 3:19-cv-00371-HDM 12 Plaintiff, v. 13 ORDER BRIAN FOX, 14

Defendant. 15

16 Before the court is defendant Brian Fox’s (“Fox”) motion to 17 vacate, correct, or set aside sentence pursuant to 28 U.S.C. § 2255 18 (ECF No. 856). The government has opposed (ECF No. 868), and Fox 19 has replied (ECF Nos. 885 & 887). 20 I. Background 21 On July 28, 2015, Fox was arrested by state authorities when 22 he was found in possession of marijuana and 314 grams of pure 23 methamphetamine, as confirmed by a DEA laboratory. He posted bail 24 on August 3, 2015, and two days later was charged in a federal 25 indictment with several controlled-substances-related offenses. 26 (ECF No. 1). Although an arrest warrant was issued, it was nearly 27 two years before Fox was apprehended. (ECF No. 545). 28 1 On November 29, 2017, pursuant to an agreement, Fox entered 2 a plea to guilty to Count Eight of the second superseding 3 indictment.1 Count Eight charged possession with intent to 4 distribute at least 50 grams of actual methamphetamine in violation 5 of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). (ECF Nos. 221, 6 601 & 606). Pursuant to the agreement, the remaining charges 7 against Fox would be dismissed and the parties were free to argue 8 for or against application of the obstruction of justice 9 enhancement under U.S.S.G. § 3C1.1. (ECF No. 601 at 6). The 10 agreement also provided that the government would recommend a low- 11 end sentence so long as Fox did not seek a sentence below his 12 Guidelines range as calculated by the court. The agreement 13 specifically provided that if Fox chose to argue for a below- 14 Guidelines sentence, including for the statutory minimum of ten 15 years, the government would not be bound by that promise. (ECF No. 16 601 at 5, 10). 17 At the time Fox changed his plea, he acknowledged that he was 18 pleading guilty to possession with intent to distribute at least 19 50 grams of actual methamphetamine, that the government would have 20 to prove he had possessed at least 50 grams of actual 21 methamphetamine, and that he in fact possessed at least 50 grams 22 of methamphetamine. (ECF No. 720 (Tr. 4-5, 7-8, 25)). He further 23 agreed that the facts contained in his plea agreement on pages 3 24 to 4 were true to the best of his knowledge. (Id. at 8). The court 25 explained to Fox that in entering his plea, he was waiving several 26

27 1 Before his arrest, the indictment was superseded two times. Fox was charged 28 in in Counts One, Two, Eight and Nine of the second superseding indictment. (ECF No. 221). 1 important Constitutional rights, including any defenses he might 2 have had to the offense (Id. at 5-6). 3 Fox indicated that he understood that while he was free to 4 argue for a below-Guidelines sentence, the government would not be 5 bound to recommend a low-end sentence if he did so. (Id. at 15- 6 16). He understood that the obstruction of justice enhancement 7 might apply, that his adjusted offense level could be 29 or 31, 8 and that his Guidelines range could be as high as 188 to 235 months 9 if he were to receive the enhancement and have a criminal history 10 category of VI. (Id. at 8-9, 12). The court advised Fox that his 11 criminal history category was likely to be high due to his record. 12 (Id. at 13). 13 Fox also acknowledged -- and the court twice explained – the 14 appellate waiver, and the fact that under it Fox would not be 15 allowed to appeal any sentence that fell within or below the 16 Guidelines range. (Id. at 19-21, 23-24). 17 The court repeatedly asked Fox if he read and understood the 18 plea agreement or if he had any questions about the agreement, and 19 each time Fox indicated he had no questions and understood 20 everything. (Id. at 3, 4, 12-13, 19). Fox indicated -- five 21 separate times -- that no one, including his counsel, had promised 22 him anything other than what was in the agreement itself. (Id. at 23 3, 19, 21, 22). And Fox acknowledged that he was entering his plea 24 freely and voluntarily, (id. at 21-22), and that no one had 25 threatened or forced him to plead guilty, (id. at 3, 22). The court 26 accepted the guilty plea as having been entered freely and 27 voluntarily. 28 1 Prior to sentencing, defense counsel filed a memorandum in 2 which he argued for a sentence of ten years. (ECF No. 665). While 3 counsel also asserted that “Fox was not actively, deceitfully, and 4 strategically hiding from the law as the PSR seems to indicate and 5 as the United States will possibly argue at sentencing,” he did 6 not explicitly raise any objection to the obstruction of justice 7 enhancement. (Id. at 3). Nor, at sentencing, did counsel make such 8 an argument. (ECF No. 721 (Tr. 2)). Instead, counsel repeated his 9 arguments in favor of a ten-year sentence. (See id. at 3). During 10 allocution, Fox himself stated: “I’m asking that you sentence me 11 to the 10 years.” (Id. at 4). 12 The government, on the other hand, argued for application of 13 the obstruction enhancement, and, because Fox was seeking a 14 sentence below any applicable Guidelines range, a high-end 15 sentence. (Id. at 5-7). 16 The court agreed that the enhancement was appropriate because 17 the evidence is quite clear that [Fox] was well aware of 18 the charges. He had been arrested, been picked up by the State authorities, and then he was indicted. He was well 19 aware of the charges. He then absconded, left the jurisdiction. And it took almost two years, not quite 20 two years, but almost two years before he was apprehended. There was a substantial effort on the part 21 of the Marshal's Office to locate Mr. Fox, to bring him back. Other defendants had been before the Court for 22 some time who were jointly involved in the conspiracy and conduct that was the subject of substantial 23 litigation before this court, and Mr. Fox did not voluntarily surrender himself at any point during that 24 time. It required the officials to locate him and then bring him back into custody to face the charges here. 25 So, there is absolutely, crystal clear evidence that the adjustment for obstruction of justice is appropriate in 26 this case. 27 (Id. at 9-10). Calculating Fox’s total offense level as 31, with 28 a criminal history category of five, the court found a Guidelines 1 range of 168 months to 210 months applied. (Id. at 10-11). The 2 court concluded that a sentence in the mid-range was appropriate, 3 and therefore sentenced Fox to 174 months’ imprisonment. (Id. at 4 13). 5 Five days after entry of judgment, Fox filed a pro se notice 6 of appeal. (ECF No. 670). Following appointment of new counsel for 7 purposes of the appeal, the appeal was dismissed on counsel’s 8 representation that no grounds for relief existed due to the valid 9 appellate waiver. (ECF No. 807). The instant § 2255 motion 10 followed. 11 II. Standard 12 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 13 vacate, set aside, or correct his sentence if: (1) the sentence 14 was imposed in violation of the Constitution or laws of the United 15 States; (2) the court was without jurisdiction to impose the 16 sentence; (3) the sentence was in excess of the maximum authorized 17 by law; or (4) the sentence is otherwise subject to collateral 18 attack. Id. § 2255(a). 19 Fox raises primarily claims of ineffective assistance of 20 counsel. Ineffective assistance of counsel claims are governed by 21 Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, 22 a petitioner must satisfy two prongs to obtain habeas relief— 23 deficient performance by counsel and prejudice. 466 U.S. at 687. 24 With respect to the performance prong, a petitioner must carry the 25 burden of demonstrating that his counsel’s performance was so 26 deficient that it fell below an “objective standard of 27 reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s 28 performance must be highly deferential,’ and ‘a court must indulge 1 a strong presumption that counsel's conduct falls within the wide 2 range of reasonable professional assistance.’” Knowles v. 3 Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted). In 4 assessing prejudice, the court “must ask if the defendant has met 5 the burden of showing that the decision reached would reasonably 6 likely have been different absent [counsel’s] errors.” Strickland, 7 466 U.S. at 696. 8 III. Analysis 9 Fox advances, in effect, nine grounds for relief:2 (1) trial 10 counsel was ineffective for failing to file a notice of appeal; 11 (2) trial counsel was ineffective for failing to communicate with 12 Fox after sentencing; (3) trial counsel was ineffective for failing 13 to challenge the obstruction of justice enhancement; (4) trial 14 counsel was ineffective for failing to argue that his criminal 15 history category was improperly calculated based on an allegedly 16 nonexistent dishonorable discharge; (5) trial counsel was 17 ineffective for failing to argue that the government had breached 18 the plea agreement by arguing for a high-end Guidelines sentence; 19 (6) trial counsel ineffectively advised Fox to ask for a 10-year 20 sentence; (7) the court violated Federal Rule of Criminal Procedure 21 when it failed to ask Fox if he had gone over his presentence 22 report (“PSR”) with his attorney; (8) his plea, including his 23 appellate waiver, was not knowing and voluntary; and (9) trial 24

25 2 The court numbers the claims in the order they appear in Fox’s memorandum and supplement and not as listed on the § 2255 form. That is, Ground Five of the 26 form is listed as a claim that appellate counsel was ineffective. (See ECF No. 856 at 9). However, the fifth ground for relief in the memorandum asserts trial 27 counsel was ineffective for breaching the plea agreement. Appellate counsel’s concession that the appellate waiver was valid and precluded consideration of 28 Fox’s claims on appeal is more appropriately addressed in the context of Ground Eight. 1 counsel was ineffective for failing to require the government to 2 produce a lab report of the drugs he was charged with possessing. 3 (See ECF No. 856).1 4 A. Ground One 5 In his first ground for relief, Fox asserts that trial counsel 6 was ineffective for failing to file a notice of appeal. He argues 7 that counsel abandoned him after sentencing and ignored multiple 8 requests to communicate, so he had to file his own pro se notice 9 of appeal. 10 Despite Fox’s argument that prejudice is presumed where 11 counsel failed to file a notice of appeal, that presumption cannot 12 apply where, as here, the defendant obtained a timely appeal. 13 There is no reasonable probability of a different outcome if 14 counsel had not been deficient – that is, if he had filed a notice 15 of appeal. That is because Fox had already obtained a timely 16 appeal, albeit on his own initiative. Because Fox cannot 17 demonstrate prejudice, he is not entitled to relief on the first 18 ground of his motion. 19 B. Ground Two 20 In his second ground for relief, Fox asserts that trial 21 counsel failed to communicate with him throughout the proceedings 22 and after sentencing, and merely pushed Fox to enter a guilty plea. 23 He asserts that communication would have enabled him to have a 24 broader understanding of the proceedings and more opportunity to 25 effectively communicate. 26 Fox does not identify any specific prejudice he suffered from 27 counsel’s alleged deficient performance. He alleges only that he 28 would have better understood the proceedings. This is insufficient 1 to allege – or prove – that the outcome of the proceedings was 2 reasonably likely to have been different had counsel better 3 communicated. Fox is not therefore entitled to relief on the second 4 ground of his motion. 5 C. Ground Three 6 In his third ground for relief, Fox asserts ineffective 7 assistance of counsel and violation of his due process and equal 8 protection rights based on counsel’s failure to argue against, and 9 the court’s application of, the two-level obstruction of justice 10 enhancement. Fox argues that if counsel had argued this point, 11 there is a reasonable probability his adjusted offense level would 12 have been 29 instead of 31 and, consequently, that his sentencing 13 range would have been lower. 14 Under United States Sentencing Guidelines § 3C1.1, a two- 15 level enhancement applies if “the defendant willfully obstructed 16 or impeded, or attempted to obstruct or impede, the administration 17 of justice with respect to the investigation, prosecution, or 18 sentencing of the instant offense of conviction, and … the 19 obstructive conduct related to … the defendant’s offense of 20 conviction and any relevant conduct; or … a closely related 21 offense.” “[A]voiding or fleeing from arrest” is generally not 22 obstructive conduct under § 3C1.1. Id. § 3C1.1 app. n.5(D). 23 Escaping from custody or willfully failing to appear for a judicial 24 proceeding is obstructive conduct. Id. § 3C1.1 app. n.4(E). 25 The Ninth Circuit has held that the enhancement was not 26 properly applied where the defendants fled before arrest, although 27 they remained on the lam for nine months and knew they were wanted 28 during this time. United States v. Madera-Gallegos, 945 F.2d 264, 1 268 (9th Cir. 1991). The enhancement was similarly improper where 2 the defendant had fled the state while he was being investigated, 3 but before he was indicted, and remained out of state – 4 intentionally using aliases to avoid detection – while his 5 codefendants were arraigned, pleaded guilty or went to trial. 6 United States v. Stites, 56 F.3d 1020, 1026 (9th Cir. 1995), as 7 amended (Aug. 2, 1995). In contrast, the enhancement was properly 8 applied where the defendant had already been arrested for the 9 offense, was told he was a suspect in a criminal case and “knew 10 that he was expected to turn himself in, and then, after fleeing, 11 ‘played a cat-and-mouse game of avoiding the authorities.’” United 12 States v. Madera-Gallegos, 945 F.2d 264, 268 (9th Cir. 1991) 13 (discussing United States v. Mondello, 927 F.2d 1463, 1467 (9th 14 Cir. 1991)). 15 For the purpose of § 3C1.1, “‘custody’ need only involve some 16 degree of official control over a defendant such that a subsequent 17 evasion amounts to more than mere ‘avoiding or fleeing from 18 arrest.’ Stated differently, the defendant must have been 19 submitted, willfully or otherwise, to the due process of law before 20 the obstruction adjustment can obtain.” United States v. Draper, 21 996 F.2d 982, 985–86 (9th Cir. 1993). Thus, the enhancement is 22 properly applied where the defendant absconded after being 23 released on bond. See United States v. Giang, 2 F. App’x 837, 838 24 (9th Cir. 2001) (“The record shows, however, that Giang left the 25 country after (1) signing a document indicating that he was being 26 released pursuant to a bond; (2) surrendering a passport in 27 anticipation of being released on bond; and (3) attending 28 proceedings wherein the constraints of bond release had been 1 discussed. In light of these facts, the district court did not 2 clearly err by imposing the obstruction of justice enhancement.”). 3 Fox posted bail after his arrest by state authorities for the 4 conduct underlying this prosecution, and then he left the 5 jurisdiction. Over the course of the next two years, he moved back 6 and forth among three states, using different phone numbers and, 7 possibly, a fake I.D. 8 Fox argues that because he was not under federal indictment 9 when he fled and there is no evidence he knew of the federal 10 charges, his actions were nothing more than avoiding arrest, as in 11 Madera-Gallegos and Stites. The government argues that Mondello is 12 controlling because Fox fled after posting bail and engaged in 13 actions to avoid detection by authorities for nearly two years. 14 As in Mondello, Fox had been arrested before he fled, and he 15 made a concerted effort thereafter to avoid detection. The fact 16 Fox was arrested by state authorities and had not been federally 17 indicted when he fled is not dispositive. See United States v. 18 Lato, 934 F.2d 1080, 1082-83 (9th Cir. 1991) (“The following 19 commentary to section 3C1.1 supports the view that there is no 20 state-federal distinction for obstruction of justice: ‘This 21 section provides a sentence enhancement for a defendant who engages 22 in conduct calculated to mislead or deceive authorities....’ . . 23 . . There is no hint that the term ‘authorities’ was used with 24 reference to federal rather than state officials.”); see also 25 United States v. Roberts, 243 F.3d 235, 238–40 (6th Cir. 2001). 26 Although Fox’s apprehension for his wrongdoing was initially 27 conducted by state authorities, he was eventually prosecuted for 28 that conduct on federal charges instead. A sufficient nexus 1 therefore exists between Fox’s obstructive conduct and the instant 2 offense. Application of the obstruction enhancement under these 3 circumstances was accordingly proper. 4 Because the obstruction enhancement was properly applied, Fox 5 can show neither deficient performance nor prejudice. As such, 6 Fox is not entitled to relief on his third ground for relief. 7 D. Ground Four 8 In his fourth ground for relief, Fox argues that his trial 9 and appellate attorneys were ineffective for failing to argue that 10 his criminal history category was improperly calculated based on 11 a nonexistent dishonorable discharge. Fox asserts there was no 12 dishonorable discharge reflected in his PSR. Fox refers to his 13 conviction in paragraph 80 of the PSR, from May 2010, arguing that 14 it shows he was honorably discharged from probation for that 15 offense. (See ECF No. 856 at 27 (referencing judgment of May 25, 16 2010)). 17 Fox’s argument is based first on an incorrect reading of his 18 PSR. The May 2010 conviction that he references (ECF No. 856 at 19 27) does in fact reflect that he was dishonorably discharged from 20 probation. Fox cannot therefore show deficient performance. While 21 it is true that Fox was honorably discharged from another of his 22 convictions –- that reflected in paragraph 77 -- for which he 23 received three criminal history points, whether the discharge was 24 dishonorable or not plays no role in the number of points 25 attributable to the conviction. (See U.S.S.G. §§ 4A1.1(a)(1) and 26 4A1.2(b)(1)). Thus, Fox cannot show either deficient performance 27 or prejudice from his attorneys’ failure to object on these grounds 28 and is not entitled to relief on the fourth ground of his motion. 1 E. Ground Five 2 In his fifth ground for relief, Fox argues that the government 3 breached the plea agreement by recommending a sentence above the 4 low end of the Guidelines range, and that counsel was ineffective 5 for failing to argue as much. The government argues that there was 6 no breach of the plea agreement because the agreement explicitly 7 allowed the government to argue for a higher sentence if Fox sought 8 a below Guidelines sentence. 9 Ground Five is without merit. As discussed above, the plea 10 agreement specifically provided that if Fox chose to argue for a 11 below-Guidelines sentence, the government was released from its 12 obligation to recommend a low-end sentence. It was neither a breach 13 by the defense to argue for a lower sentence nor a breach by the 14 government to argue for a higher sentence once he did. Fox’s 15 attorneys did not therefore perform deficiently for failing to 16 argue that the government had breached the plea agreement nor, for 17 the same reason, was Fox prejudiced by this failure. 18 Fox is not entitled to relief on his fifth ground for relief. 19 F. Ground Six 20 In his sixth ground for relief, Fox argues that trial counsel 21 was ineffective for advising him to seek a 10-year sentence despite 22 knowing that this would be a breach of the plea agreement and would 23 allow the government to argue for a higher than low-end sentence. 24 As just noted, it was not a breach of the plea agreement for 25 counsel to seek a below-Guidelines sentence. It was a choice, 26 however, that did open the defense up to the possibility that the 27 government would seek a high-end sentence, which is what ultimately 28 happened. In order to obtain relief, Fox must therefore show that 1 counsel’s strategic decision in this regard constituted deficient 2 performance. 3 “[S]trategic choices made after thorough investigation of law 4 and facts relevant to plausible options are virtually 5 unchallengeable.” Strickland, 466 U.S. at 690. There is no 6 indication here that counsel made a less than reasonable 7 investigation. And it is clear that counsel specifically 8 negotiated for the right to argue for the minimum sentence, as the 9 plea agreement explicitly carves out such a possibility. It was 10 not an unreasonable strategic decision for counsel to advise Fox 11 to seek a ten-year sentence from this court and to argue for the 12 same, despite the fact that it allowed the government to argue for 13 a higher sentence. Fox has not therefore established ineffective 14 assistance of counsel based on counsel’s decision to seek a ten- 15 year sentence. 16 Moreover, to the extent Fox argues that he was misled by 17 counsel into believing that seeking a ten-year sentence would not 18 result in a breach of the plea agreement, the contention is not 19 well taken. At Fox’s change of plea, the court thoroughly 20 explained the sentencing possibilities to Fox, including that his 21 range could be as high as 188 to 235 months and that if he chose 22 to argue for a ten-year sentence, the government would not be bound 23 to recommend a low-end sentence. Fox indicated repeatedly that he 24 understood. Under these circumstances, the court does not find 25 credible Fox’s contention that he did not understand the 26 ramifications of seeking a ten-year sentence at sentencing. He 27 has not, therefore, shown either prejudice or deficient 28 performance. 1 Fox is not entitled to relief on his sixth ground for relief. 2 G. Ground Seven 3 In his seventh ground for relief, Fox argues that the court 4 failed to ensure that Fox had gone over his PSR with his attorney, 5 resulting in a violation of Federal Rule of Civil Procedure 6 32(i)(1)(A). Fox argues he did not go over the PSR with his 7 attorney. If he had, he argues, he would have discovered that he 8 incorrectly received three additional criminal history points for 9 a dishonorable discharge that did not exist. 10 To the extent Fox asserts trial and appellate counsel were 11 ineffective for failing to raise this point, the argument is 12 without merit. Fox cannot demonstrate prejudice, for the reasons 13 set forth with respect to Ground Four. Furthermore, appellate 14 counsel was not deficient in failing to raise the issue because 15 Fox had waived any sentencing errors as part of his plea agreement. 16 See (ECF No. 601 at 14); United States v. Savage, 406 Fed. App’x 17 220, 221 (9th Cir. 2010) (unpublished opinion) (defendant’s waiver 18 of his right to appeal “‘the manner in which [his] sentence [was] 19 determined’ . . . plainly encompasses the district court’s alleged 20 errors under Rule 32(i)(1)(A). . . .”). 21 To the extent Fox argues that he is entitled to relief based 22 on the court’s error, he would not be entitled to relief -- even 23 assuming he had not waived this claim as part of his plea 24 agreement. See Hill v. United States, 368 U.S. 424, 426 (1962) 25 (holding that, without more, a technical violation of Rule 32 “is 26 not of itself an error that can be raised by collateral attack.”); 27 Cavines v. United States, 2008 WL 4372712, at *6 (N.D. Ill. Mar. 28 25, 2008); United States v. Reyes, 2006 WL 3289945, at *2 (W.D. 1 Mich. Nov. 13, 2006); Taylor v. United States, 2006 WL 1745104, at 2 *1 (E.D. Tenn. June 21, 2006). Collateral relief for a technical 3 violation of Rule 32 is available only where the defendant has 4 been prejudiced by the court’s error. Peguero v. United States, 5 526 U.S. 23, 27-28 (1999). Because, as discussed above, Fox has 6 not demonstrated that his criminal history category was 7 incorrectly calculated, he has not demonstrated that he suffered 8 prejudice. As such, Fox is not entitled to relief on his seventh 9 ground for relief. 10 H. Ground Eight 11 In Fox’s eighth ground for relief,3 Fox argues that his 12 appellate waiver was not knowing and voluntary. Fox argues that 13 neither the court nor his attorney fully explained the appellate 14 waiver. His allegations also appear to suggest a claim that his 15 plea was not knowing and voluntary, because he asserts he was 16 misled by his counsel into believing he would receive a ten-year 17 sentence and bullied by the government into entering a plea. 18 The government argues that Fox’s allegations are completely 19 belied by his responses to the court’s canvass at the time he 20 changed his guilty plea. The government argues that Fox’s assertion 21 that he was confused by the proceedings is particularly 22 unbelievable in light of his many contacts with, and convictions 23 through, the criminal justice system. 24 As discussed previously, the court engaged in a significant 25 canvass of Fox, in which it repeatedly asked Fox if he understood 26 the proceedings or if he had any questions, and in which Fox

27 3 The eighth ground for relief appears in Fox’s supplement, which he identifies 28 as an addendum to Ground Five. (ECF No. 856 at 34-40). As previously noted, the court construes this claim as Ground Eight. 1 repeatedly advised that he had not been promised anything to enter 2 his plea or threatened to do so. 3 “Solemn declarations in open court carry a strong presumption 4 of verity. The subsequent presentation of conclusory allegations 5 unsupported by specifics is subject to summary dismissal, as are 6 contentions that in the face of the record are wholly incredible.” 7 Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United 8 States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements 9 made by a defendant during a guilty plea hearing carry a strong 10 presumption of veracity in subsequent proceedings attacking the 11 plea.”). 12 Fox repeatedly indicated that he understood the plea 13 agreement in all of its relevant particulars and indicated that no 14 one had promised him anything to sign the agreement. His assertions 15 now that his plea, including the appellate waiver, was not knowing 16 or voluntary are not well taken. The court is likewise not 17 persuaded that Fox did not understand that arguing for a sentence 18 below ten years would open him up to an argument by the government 19 for a high-end sentence, as that possibility was explicitly 20 discussed with him during the canvass, and Fox stated that he 21 understood. Fox therefore cannot establish either that his plea 22 and appellate waiver was unknowing or involuntary, that he was 23 bullied into entering the plea, or that he was misled by counsel 24 to do so. 25 Appellate counsel was not, moreover, ineffective in conceding 26 the validity of the appellate waiver. Not only did the plea 27 agreement set forth the waiver, the court went over the waiver 28 with Fox in detail, specifically advising him that the only thing 1 he would be allowed to appeal would be an above-Guidelines 2 sentence. Appellate counsel was not deficient in conceding the 3 appellate waiver’s validity as to any and all claims, nor did 4 counsel’s conduct cause Fox prejudice. 5 Fox is not entitled to relief on his eighth ground for relief. 6 I. Ground Nine 7 In his ninth ground for relief, Fox asserts that trial counsel 8 was ineffective for failing to require the government to produce 9 a lab report of the drugs seized from his vehicle. He argues that 10 the drugs were of poor quality and thus he may not have possessed 11 at least fifty grams of actual methamphetamine. 12 The government argues that because Fox admitted to possessing 13 314 grams of pure methamphetamine, he cannot demonstrate deficient 14 performance or prejudice. 15 Fox has not established that had counsel obtained a lab report 16 he would not have entered a plea of guilty to Count Eight of the 17 second superseding indictment. Moreover, he has not established 18 that counsel was deficient for failing to seek a report. The DEA’s 19 lab report reflected that Fox was found in possession of 314 grams 20 of pure methamphetamine. Fox has not established that reasonable 21 counsel would have pursued further testing to determine if the 22 amount of actual methamphetamine in this sample fell below 50 23 grams, particularly where the government was offering a plea 24 agreement that dismissed the other three charges pending against 25 Fox. Fox therefore cannot demonstrate deficient performance, 26 either. 27 Fox is not entitled to relief on his ninth ground for relief. 28 J. Other Assertions 1 The motion contains several additional assertions not 2 obviously tied to any ground for relief. For example, Fox argues 3 that the court injected itself into the plea negotiations by 4 expressing its opinion on the applicable sentencing range during 5 the sentencing hearing. This claim is without merit. The court’s 6 opinion as to the applicable sentencing range after the defendant 7 had already entered a change of plea does not constitute 8 involvement in plea negotiations. 9 Fox also argues his offense level was improperly calculated 10 to be level 31 when it should have been 29 in accordance with the 11 plea agreement. (ECF No. 856 at 17). As noted above, the plea 12 agreement – and the court during its canvass of Fox – specifically 13 note that the offense level could be 29 or 31 depending on whether 14 the obstruction enhancement were to apply. Because an offense level 15 of 31 was contemplated by the plea agreement, this argument is 16 without merit. It is, moreover, waived by Fox’s valid appellate 17 waiver. 18 The court has additionally considered all of Fox’s 19 contentions not herein addressed and finds them to be without 20 merit. 21 IV. Evidentiary Hearing 22 Fox requests an evidentiary hearing. The court is not required 23 to conduct a hearing on a § 2255 motion if “the motion and the 24 files and records of the case conclusively show that the prisoner 25 is entitled to no relief.” 28 U.S.C. § 2255(b). Because the motion 26 and files and records of this case conclusively show that Fox is 27 not entitled to relief, his request for an evidentiary hearing 28 will be denied. 1 V. Certificate of Appealability 2 In order to proceed with an appeal, Fox must receive a 3 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. 4 P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 5 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 6 551-52 (9th Cir. 2001). Generally, a defendant must make “a 7 substantial showing of the denial of a constitutional right” to 8 warrant a certificate of appealability. Allen, 435 F.3d at 951; 28 9 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 10 (2000). “The petitioner must demonstrate that reasonable jurists 11 would find the district court’s assessment of the constitutional 12 claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack, 13 529 U.S. at 484). In order to meet this threshold inquiry, Fox has 14 the burden of demonstrating that the issues are debatable among 15 jurists of reason; that a court could resolve the issues 16 differently; or that the questions are adequate to deserve 17 encouragement to proceed further. Id. 18 The court has considered the issues raised by Fox, with 19 respect to whether they satisfy the standard for issuance of a 20 certificate of appealability, and determines that none meet that 21 standard. Accordingly, Fox will be denied a certificate of 22 appealability. 23 VI. Conclusion 24 In accordance with the foregoing, IT IS THEREFORE ORDERED 25 that Fox’s motion to vacate, set aside or correct sentence pursuant 26 to 28 U.S.C. § 2255 (ECF No. 856) is DENIED. 27 IT IS FURTHER ORDERED that Fox’s request for an evidentiary 28 hearing is DENIED. 1 IT IS FURTHER ORDERED that Fox is DENIED a certificate of 2\| appealability. 3 The Clerk of Court shall enter final judgment accordingly. 4 DATED: This 12th day of February, 2020. 5 bral” D Ht fMb> 7 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28