United States v. Mott

979 F. Supp. 1293, 1997 U.S. Dist. LEXIS 17257, 1997 WL 627062
CourtDistrict Court, D. Oregon
DecidedSeptember 16, 1997
DocketNos. CIV. 97-670-FR; No. CR 93-51-FR
StatusPublished

This text of 979 F. Supp. 1293 (United States v. Mott) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mott, 979 F. Supp. 1293, 1997 U.S. Dist. LEXIS 17257, 1997 WL 627062 (D. Or. 1997).

Opinion

OPINION

FRYE, District Judge.

Before the court is the motion of the defendant, James Albert Mott, under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence (# 32).

BACKGROUND

On April 30, 1993, James Albert Mott plead guilty to a single count of the crime of unarmed bank robbery, 18 U.S.C. § 2113(a), for the taking by force, violence and intimidation the sum of $705 from a branch of the First Interstate Bank of Oregon on January 11,1993. The parties jointly recommended a sentence at the low end of the guideline range, 151 months. On June 14, 1993, the court sentenced Mott at the high end of the guideline range, 188 months. The court granted Mott’s motion for reconsideration of his sentence, and on July 19, 1993, after reconsideration, the court resentenced him to 151 months in prison. Mott appealed from the sentence imposed but dismissed the appeal after he was resentenced. Mott filed his petition for a writ of habeas corpus on April 28,1997.

CONTENTIONS OF THE PARTIES

Mott contends that he is being held unlawfully for four reasons: (1) the government failed to notify him under 21 U.S.C. § 851(a)(1) that he was to be sentenced as a career offender; (2) he was denied the effective assistance of counsel when his attorney did not tell him that the government was required to notify him that it was going to ask the court to sentence him as a career offender; (3) he was denied the right to appeal from the sentence imposed because he was not aware of the notification requirement; and (4) the facts do not support a conviction for the crime of bank robbery.

The government contends that the notification requirements in 21 U.S.C. § 851(a)(1) apply to sentence enhancements for certain drug convictions, but do not apply to Mott’s conviction for the crime of bank robbery. The government further contends that at the time he was sentenced, Mott was well aware of his status as a career offender (1) through knowledge of his own criminal record; (2) through the recommendation of his own attorney that he be sentenced within a guideline range calculated upon his status as a career offender; (3) in the motion to reconsider his sentence, Mott did not mention any surprise about his status as a career offender; (4) Mott signed the plea petition which [1295]*1295stated that his lawyer discussed the sentencing guidelines with him, and that he knew the maximum punishment for the offense to which he was pleading guilty was twenty years; (5) the sentencing letter submitted by defense counsel acknowledges that Mott is a career offender; and (6) Mott did not comment on his status as a career offender when he made a statement to the court at the resentencing. Concerning whether the facts support a conviction for the crime of bank robbery, the government points out that Mott stated in his petition to enter a plea of guilty that he took $705 by intimidation, and he has waived the issue he now raises by not presenting it on appeal.

LEGAL STANDARDS

28 U.S.C. § 2255 provides, in part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Under section 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section ‘[ujnless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255) (emphasis in the original). The court may deny a hearing if the movant’s allegations, viewed against the record, fail to state a claim for relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotation omitted), cert, denied, — U.S.-, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere eonclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert, denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

ANALYSIS AND RULING

Before the entry of a guilty plea, 21 U.S.C. § 851(a)(1) requires the government to file an information stating the previous convictions on which the government intends to rely if the defendant will be sentenced to increased punishment by reason of the prior convictions. This statute, however, only applies to offenses charged under Chapter 21, which covers drug crimes. Because Mott plead guilty to an offense under Chapter 18, the notification requirements under 21 U.S.C. § 851(a)(1) do not apply to him. Mott appears to be confusing the sentencing enhancements for particular crimes under Chapter 21 with the general career offender provisions of the guidelines located in U.S.S.G. § 4B1.1. Accordingly, his first three grounds for relief do not have merit.

Mott’s second ground for arguing that he was denied the effective assistance of counsel, because he was not informed of the notification requirements for sentence enhancement, could be broadly interpreted to mean that his counsel did not inform him that he was facing a career offender sentence or did not review the presentence report with him.

To prevail on a claim of the ineffective assistance of counsel, a petitioner must show both (1) that the attorney’s performance fell below an objective standard of reasonableness; and (2) that the performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. To establish the second prong of the Strickland

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. Patricia Campbell Hearst
638 F.2d 1190 (Ninth Circuit, 1981)
United States v. Terrill Douglas Hopkins
703 F.2d 1102 (Ninth Circuit, 1983)
United States v. Gordon Howard Lucas, Jr.
963 F.2d 243 (Ninth Circuit, 1992)
United States v. Michael Leslie Blaylock
20 F.3d 1458 (Ninth Circuit, 1994)
Rodea v. United States
520 U.S. 1269 (Supreme Court, 1997)

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Bluebook (online)
979 F. Supp. 1293, 1997 U.S. Dist. LEXIS 17257, 1997 WL 627062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mott-ord-1997.