United States v. Markette Tillman

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2021
• Docket: 19-16419
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 19-16419 Plaintiff-Appellee, D.C. Nos. 2:16-cv-00955-KJD 2:08-cr-00283-JCM-PAL-3 v.

MARKETTE TILLMAN, AKA Ketty P, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Argued and Submitted December 10, 2020 Pasadena, California

Before: WATFORD, THAPAR,** and COLLINS, Circuit Judges.

Markette Tillman appeals the district court’s denial of his motion under 28

U.S.C. § 2255, which asserted that his trial counsel had rendered ineffective

assistance in connection with Tillman’s guilty plea to drug trafficking and

racketeering charges. Reviewing the district court’s denial of the motion de novo

and its factual findings for clear error, United States v. Aguirre-Ganceda, 592 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1043, 1045 (9th Cir. 2010), we affirm.

I

A

In October 2008, Tillman and nine others were indicted in federal court for a

variety of charges in connection with their alleged participation in the “Playboy

Bloods” gang, including conspiracy to violate the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d); murder in aid of

racketeering, id. § 1959(a)(1);1 use of a firearm during a crime of violence, id.

§ 924(c); and possession of cocaine base with intent to distribute, 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(iii).

Tillman was originally represented only by appointed attorney Bret

Whipple. However, because the VICAR murder charge carried a possible penalty

of death, see 18 U.S.C. § 1959(a)(1), Tillman was provided an additional appointed

attorney (John Grele), who was “learned in the law applicable to capital cases,” see

id. § 3005. After the Government subsequently decided not to pursue the death

penalty, the district court relieved Whipple and ordered Grele to remain as

Tillman’s counsel. The district judge presiding over the case, then-Chief Judge

Robert Jones, later removed Grele as Tillman’s counsel, and Lance Maningo was

1 Because § 1959’s title is “Violent crimes in aid of racketeering activity,” that section is sometimes referred to as the “VICAR statute.”

2 appointed as replacement counsel. Another attorney from Maningo’s firm (James

Oronoz) also subsequently appeared as co-counsel for Tillman. Tillman appealed

the order removing Grele, but we held that we lacked jurisdiction to review it. See

United States v. Tillman, 756 F.3d 1144, 1149–50 (9th Cir. 2014).

In October 2013, Chief Judge Jones recused himself from the case, which

was reassigned to Judge Kent Dawson. In the weeks leading up to trial, the

Government extended a plea offer to Tillman that would have included a

recommended sentence of 18 years. On the morning of trial on July 28, 2014, the

Government asked the court to “canvas counsel and the defendant” about that

offer, and the court agreed to do so in order to address any potential concerns about

ineffective assistance of counsel. During a break in the proceedings, Tillman was

afforded an opportunity to review the written plea agreement, and he subsequently

reaffirmed, on the record, that he rejected the proposed agreement as unreasonable.

He did so even though his counsel had stated, on the record, that they

recommended that he accept it. During the on-the-record colloquy concerning this

issue, Tillman’s counsel (Maningo) initially stated that the Government had

agreed, as part of the proposed plea deal, to allow Tillman to preserve his right to

appeal the court’s earlier rejection of his claims of a speedy trial right violation.

The Government, however, immediately objected, saying, “That’s not correct.”

Maningo corrected himself, saying that although there had been discussions

3 indicating that this was something the Government “would consider if Mr. Tillman

would advance the negotiations towards possibly resolving the case,” there were

“hurdles in the ultimate negotiations” and nothing was ever “formalized.”

On the second day of trial, however, the parties entered into a different plea

agreement under which Tillman pleaded guilty to two counts of the operative

superseding indictment (RICO conspiracy and possession of cocaine base with

intent to distribute) in exchange for dismissal of the remaining charges and an

agreement to jointly recommend a sentence of 23 years. The plea agreement

contained a waiver of the right to appeal, as well as a waiver of “all collateral

challenges, . . . except non-waivable claims of ineffective assistance of counsel.”

After Tillman pleaded guilty but before sentencing, he sent two pro se letters

to the district court claiming that his attorneys had been ineffective and that he had

been “under great pressure and duress” to agree to the plea agreement. At a

November 25, 2014 hearing regarding these issues, Tillman asserted that, at the

time he rejected the initial plea offer, he thought he could avoid conviction on the

VICAR murder charge by proving at trial that he was not the shooter. He claimed

that he learned for the first time in the Government’s opening statement that, based

on the RICO conspiracy, he could be found vicariously guilty of VICAR murder

regardless of whether he pulled the trigger. See, e.g., United States v. Bingham,

653 F.3d 983, 996–98 (9th Cir. 2011) (upholding Pinkerton liability for VICAR

4 murder). Tillman stated that, had he known that, he would have accepted the 18-

year plea deal.

At the November 25 hearing, the district court noted that Tillman had had

multiple counsel over a lengthy period of time, and the court stated that it did not

believe that his attorneys had never advised him, “at some point, that [he] could be

held liable” for substantive offenses based on his participation in a conspiracy.

When Tillman insisted that he had not been told that, the court responded, “I don’t

believe it, sir. You are not credible.” The district court also stated that Tillman,

after hearing the Government mention vicarious liability in its opening statement,

could have raised the issue at the change-of-plea hearing the next day, but failed to

do so. The court further noted that, during the plea colloquy, Tillman had denied

any duress and had affirmatively represented that he was satisfied with his

counsel’s performance. The court concluded by telling Tillman that, based on

these points, as well as the court’s “observation of you now,” the court was

“finding that you are not credible.” Later in the same hearing, after Tillman further

claimed that he had pleaded guilty without reading the plea agreement and that he

had not agreed to a 23-year sentence, the court noted that he had said the opposite

at his plea colloquy. The court again told Tillman: “You are lying. You are not

credible. You are making misrepresentations about what happened that are clearly

contradicted by the record that is before the Court.”

5 At sentencing, the district court followed the parties’ joint recommendation

of 23 years’ imprisonment. Tillman filed an appeal, but we granted the

Government’s motion to dismiss the appeal “in light of the valid appeal waiver”

contained in his plea agreement.

B

Tillman thereafter filed a pro se motion under § 2255, claiming that his

counsel (Maningo and Oronoz) had been ineffective in multiple respects. The

district court directed Maningo and Oronoz to file declarations addressing the

points raised, and they did so. The court declined to hold an evidentiary hearing or

to appoint counsel for Tillman, and after reviewing the written submissions, it

denied the § 2255 motion and denied a certificate of appealability.

We thereafter granted a certificate of appealability “with respect to the

following issue: whether appellant received ineffective assistance of counsel in

connection with appellant’s decision to enter a guilty plea, including advice

regarding (1) potential vicarious liability under 18 U.S.C. § 1959(a), and (2) the

appeal wa[iv]er of all claims except for ineffective assistance of counsel.”

II

Tillman challenges the district court’s rejection of his claim that his trial

counsel was ineffective in failing to explain vicarious liability under RICO to him.

The district court concluded that Tillman’s statements about the content of his

6 counsel’s communications on this score were not credible, and it therefore rejected

this claim as factually unsupported. We find no basis for setting aside the district

court’s conclusion.

As noted earlier, Tillman first raised this argument at a hearing that occurred

after his guilty plea but before sentencing, and the district court at that hearing

explicitly found Tillman “not credible” with respect to this claim. See supra at 5.

In denying Tillman’s § 2255 motion, the district court relied on this previous

credibility finding, as well as on the affidavits of Maningo and Oronoz stating that

they “thoroughly and extensively discussed the issues of Tillman’s liability under

the theories of conspiracy and vicarious liability under R.I.C.O.” with Tillman.

The district court accordingly found “that Tillman’s counsel adequately explained

Tillman’s liability for murder under RICO.” On this record, we cannot say that

that finding is clearly erroneous. Therefore, Tillman cannot show that his

“counsel’s performance was deficient” in this respect, as required to establish a

claim for ineffective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 687 (1984).

Tillman argues that it was error for the district court to have made this

finding without holding an evidentiary hearing on the § 2255 motion, but we find

no abuse of discretion. See Stewart v. Cate, 757 F.3d 929, 934 (9th Cir. 2014).

The district court had already had an opportunity, at an earlier hearing, to question

7 Tillman about this issue and to observe his demeanor as he explained his factual

contentions on this score. At that hearing, the court concluded, based on its own

“observation” of Tillman, the implausibility of his assertions, and his contradiction

of statements he had made at his plea colloquy, that he was “not credible” and was

“lying.” See supra at 5. The additional materials received in connection with the

§ 2255 motion did not alter the state of the record in a way that would have

required the district court to hold an evidentiary hearing to re-evaluate Tillman’s

credibility. With respect to this issue, Tillman’s declaration merely repeated the

same factual contentions the district court had previously found to lack credibility,

and Maningo’s and Oronoz’s declarations expressly affirmed that they had

discussed the vicarious liability issue with Tillman. Under these circumstances,

the record was thus already sufficient to “conclusively show” that Tillman was

“entitled to no relief” on this claim, and no evidentiary hearing was warranted. See

28 U.S.C. § 2255(b); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977)

(noting that “the judge’s recollection of the events at issue may enable him

summarily to dismiss a § 2255 motion”).

III

The district court did not err in rejecting Tillman’s claim that his counsel

rendered ineffective assistance by advising him to sign a plea agreement that

contained a waiver of appellate rights.

8 Ordinarily, when arguing that counsel’s advice to accept a plea offer was

ineffective assistance, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Tillman specifically states, however, that he “is not arguing that he would have

insisted on going to trial” (emphasis added). Tillman’s theory rests instead on the

premise that his counsel was prejudicially ineffective by failing to successfully

negotiate a plea deal that excluded an appellate waiver, which would have allowed

Tillman both to avoid trial (where he would have faced a mandatory life sentence

if convicted on the VICAR murder charge, see United States v. Rollness, 561 F.3d

996, 998 (9th Cir. 2009)) and to pursue his assertedly meritorious appellate issues.

But as the district court correctly noted, “the government insisted on the appeal

waiver” as a condition of any plea. Tillman has not pointed to anything in the

record that would support the conclusion that the Government would ever have

agreed to accept a plea in this case that did not include an appeal waiver. On the

contrary, both Maningo and Oronoz stated in their affidavits that “the Government

insisted upon his waiver of certain collateral rights, in particular, a challenge to a

violation of his Speedy Trial Rights, as essential to his acceptance of the guilty

plea” (emphasis added). Moreover, when Maningo initially suggested at the

colloquy on the first day of trial that the Government had agreed to an appeal

9 waiver, the Government immediately interjected that that was “not correct.” See

supra at 3. Maningo corrected himself and stated that, although he had perceived

this as something that the Government might consider, there were “hurdles in the

ultimate negotiations” and the Government never agreed to that. See supra at 4.

Because counsel was not prejudicially ineffective in failing to obtain a plea

condition that the Government was unwilling to grant, the district court properly

rejected this claim.

AFFIRMED.