United States v. Angelica Whiteman

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2021
• Docket: 20-35379
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-35379

Plaintiff-Appellee, D.C. Nos. 1:19-cv-00080-SPW 1:16-cr-00082-SPW-2 v.

ANGELICA JO WHITEMAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted July 6, 2021** Seattle, Washington

Before: HAWKINS, CLIFTON, and IKUTA, Circuit Judges.

Angelica Whiteman appeals from the district court’s denial of her motion to

vacate or set aside her sentence pursuant to 28 U.S.C. § 2255. Whiteman contends

the district court abused its discretion by denying her claim without an evidentiary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). hearing or discovery. We review for abuse of discretion, United States v. Rodrigues,

347 F.3d 818, 823 (9th Cir. 2003), and we affirm.

Whiteman pled guilty to aiding and abetting first-degree murder for her role

in the beating, choking, and burning alive of a young woman on the Crow Indian

Reservation. The crime carried the penalty of death or life imprisonment. 18 U.S.C.

§ 1111(b). Pursuant to her guilty plea, she was able to receive a downward departure

from the mandatory life sentence in exchange for her trial testimony, and she was

sentenced to 480 months.

Whiteman later brought this action alleging ineffective assistance of counsel

in connection with her plea agreement. Whiteman claimed: (1) her counsel did not

tell her she had a right to trial or to appeal, and that she had a witness statement that

supported her noninvolvement in the crime; (2) her counsel failed to discuss defense

strategy with her, and she had “witness statements that support my (non)involvement

with this crime”; (3) she entered her guilty plea under duress by being threatened

with a life sentence; and (4) she didn’t fully understand the plea deal.

To succeed, Whiteman had to demonstrate that her counsel’s performance fell

outside the range of reasonable professional assistance and that there is a reasonable

probability that but for counsel’s unprofessional performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668

(1984). A court may forego an evidentiary hearing when “the motion and the files

2 and records of the case conclusively show that the prisoner is entitled to no

relief.” 28 U.S.C. § 2255(b). A defendant is not entitled to an evidentiary hearing

if the allegations do not state a claim for relief, are belied by the record or otherwise

incredible, or conclusory and unsupported by sufficient factual allegations. See

United States v. Schaflander, 743 F.2d 714, 718 (9th Cir. 1984).

The district court rejected each of her four ineffective assistance of counsel

claims, it concluded that counsel did nothing unreasonable by recommending

Whiteman plead guilty to avoid a life sentence, and that, in light of the evidence

against her (including her own admissions), Whiteman had no realistic chance of

acquittal at trial, and thus could demonstrate no prejudice from pleading guilty. The

court noted that most of Whiteman’s claims were directly contradicted by

representations she made in court during the plea colloquy, where the court carefully

reviewed the terms of the plea agreement with her (and she stated she understood),

including specific discussions that Whiteman had and was waiving a right to trial,

and that Whiteman had but was waiving her right to appeal. The court further held

that the plea was not involuntary because it was entered to avoid a harsh

punishment. See United States v. Brady, 397 U.S. 742, 755 (1970) (pleading guilty

to avoid death penalty not duress).

The district court granted a certificate of appealability on only her first

ineffective assistance of counsel claim: Whiteman’s contention that her attorney

3 rendered ineffective assistance of counsel by failing to tell her she had a right to trial

or to appeal, and that a pretrial statement made by a single witness, J.T., “supported

her non-involvement with the crime.”

We review Whiteman’s ineffective assistance of counsel claim de novo.

United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010). We

conclude that Whiteman’s counsel’s advice, in light of J.T.’s pretrial statement, did

not fall outside the range of reasonable professional assistance. See Strickland, 466

U.S. 668 at 690. J.T.’s pretrial statement indicated Whiteman was back inside the

car when the victim was set on fire. However, at her co-defendant’s trial, J.T. and

two other witnesses all testified that Whiteman was outside the car when the victim

was doused with gasoline and set on fire. A reasonable attorney could thus conclude

that it was highly unlikely a single pretrial statement to the contrary would have

yielded Whiteman an acquittal at trial, and therefore it was reasonable to advise

Whiteman to accept the plea offer. Moreover, there is no reasonable probability that

had Whiteman gone to trial, the pretrial statement by J.T. would have changed the

outcome and led to an acquittal. See id. at 694. As the district court also held, from

a legal standpoint Whiteman’s aiding and abetting conviction did not depend on her

location at that moment, given the testimony of her substantial involvement in

inciting the violence, beating the victim, stripping her, and choking her unconscious,

all which ultimately facilitated the commission of the murder. 8 U.S.C. § 2 (a person

4 who “aids, abets, counsels, commands, induces or procures” commission of federal

offense is punishable as a principal); Rosemond v. United States, 572 U.S. 65, 73-76

(2014) (a person aids and abets a crime when he “intends to facilitate that offense’s

commission”; a defendant can be convicted “without proof that he participated in

each and every element of the offense”). Therefore, we affirm the district court’s

rejection of Whiteman’s first claim of ineffective assistance of counsel (which is the

only claim before us).

The district court here did not abuse its discretion by denying Whiteman’s

claim without an evidentiary hearing, because, as discussed above, Whiteman’s

allegations are either belied by the record (trial testimony and plea colloquy) or

insufficient to demonstrate Strickland prejudice. See 28 U.S.C. § 2255(b) (requiring

a district court to hold a hearing on an application for relief “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no

relief”).

AFFIRMED.