Yost v. United States

• Court: District Court, D. Arizona
• Decided: October 3, 2023
• Docket: 4:23-cv-00100
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Robert Allen Yost, No. CV-23-00100-TUC-JGZ No. CR-20-02523-TUC-JGZ 10 Petitioner, ORDER 11 v.

12 United States of America,

13 Respondent. 14 15 16 Petitioner Robert Allen Yost, who is confined in the Federal Correctional Institution 17 in Seagoville, Texas, has filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set 18 Aside, or Correct Sentence by a Person in Federal Custody. The motion is fully briefed. 19 (CV Docs. 1, 4, 5.)1 Upon review of the record, and for the reasons that follow, the Court 20 will deny the Motion. 20-2370. 21 I. Background 22 On March 10, 2020, Petitioner was arrested while transporting four persons illegally 23 present in the United States. (CR Doc. 129, ¶¶ 14-16.) He was charged in case CR 20- 24 2370, with conspiracy to transport illegal aliens or profit (Count 1) and transportation of 25 illegal aliens for profit (Counts 2-5). (Id., ¶¶ 3, 14-16.) 26 In a post-Miranda interview, Petitioner gave agents written consent to search his

27 1 Petitioner pled guilty and was sentenced in two separate criminal cases on the same dates: CR 20-2370 and CR 20-2523. Petitioner only raises challenges with respect to case 20- 28 2523. For clarity, citations to “CR Doc.” refer to the docket entries in that case. Citations to “CV Doc.” refer to the docket entries in the parallel civil case, CV 23-100. 1 cell phone. (CV Doc. 4, Attach. A, B.) During a forensic download of the phone, an agent 2 observed photographs and videos of child pornography. (Id., Attach. C.) The agent stopped 3 the search and obtained a search warrant. (Id.) A further search of the phone revealed child 4 pornography and text conversations between Petitioner and co-defendant Henry Ramos 5 regarding exchanging drugs for child pornography and access to Ramos’ minor nephew for 6 purposes of sexual contact. 7 Petitioner was subsequently charged in five counts of an eight-count Indictment 8 with conspiracy to sex traffic children (Count 1); receipt of child pornography (Counts 3 9 and 5); production of child pornography (Count 4); and possession of child pornography 10 (Count 8). (CR Doc. 29.) Petitioner pled guilty to Counts 1 and 4 pursuant to a written plea 11 agreement. (CR Doc. 92.) The agreement provided for a binding sentencing range of 180 12 to 188 months of imprisonment, followed by lifetime Supervised Release. (Id. at 3.) The 13 government agreed to dismiss Counts 3, 5 and 8 at sentencing, and Petitioner agreed to 14 waive any objections to a sentence imposed within the stipulated range; any right to appeal 15 the Court’s entry of judgment; the imposition of sentence under 18 U.S.C. § 3742; the 16 district court’s refusal to grant a requested variance; any right to collaterally attack his 17 conviction and sentence under 28 U.S.C. § 2255, or any other collateral attack; and any 18 other challenge to his conviction or sentence. (Id. at 1, 11.) 19 Petitioner pled guilty in both criminal cases on the same date. At the change of plea 20 hearing, the Magistrate Judge confirmed Petitioner was aware of the maximum term of 21 imprisonment for all of the charges. Petitioner was specifically informed that the maximum 22 term of imprisonment for Count 1 was life and for Count 4 was 30 years’ imprisonment. 23 (CR Doc. 160 at 11.) The Magistrate Judge explained that Petitioner faced a minimum term 24 of 15 years’ imprisonment as to Count 4 and that, under the plea agreement, he would 25 receive concurrent terms of imprisonment of up to 188 months. (CR Doc. 160 at 6, 11.) 26 She confirmed that Petitioner was aware that if the district court imposed a sentence 27 consistent with his plea agreement, he was waiving his right to appeal, and waiving his trial 28 rights, including his right to cross-examine the government’s witnesses and subpoena 1 witnesses in his defense. Petitioner acknowledged the terms of the plea agreement and his 2 waiver of rights, and pled guilty to Counts 1 and 4, providing a factual basis in which he 3 admitted that he agreed to provide methamphetamine to co-defendant Henry Ramos in 4 exchange for access to Ramos’ 12-year-old nephew for the purpose of engaging in a sex 5 act with him. Petitioner admitted that he traveled to Ramos’ home where the child was 6 located but could not proceed with the sexual conduct with the child because adults 7 returned to the home. (Id. at 18-19). 8 The Court imposed sentences in both criminal cases on the same date. The 9 Presentence Investigation Report (PSI) prepared in advance of sentencing recommended 10 that the Court accept the parties’ plea agreements and impose concurrent sentences of 188 11 months’ imprisonment on Counts 1 and 4, and a concurrent 14-month sentence in case on 12 the alien smuggling charge. (CR Doc. 129 at 31.) The PSI identified defendant’s age, 13 medical condition, and sentencing parity among similarly situated defendants as possible 14 grounds for imposing a sentence below the calculated guideline range of life imprisonment 15 (Count 1). (CR Doc. 129 at 30.) 16 The Court sentenced Petitioner to concurrent terms of 188 months of imprisonment 17 on Counts 1 and 4, followed by concurrent terms of lifetime supervised release, and a 18 concurrent 14 months’ imprisonment in CR 20-2370. (CR Doc. 152; CR 20-02370 Doc. 19 88.) In imposing the sentence, the Court considered Petitioner’s age and health, stating: 20 “Frankly, I would impose a sentence higher than the parties' plea agreement given the 21 conduct in this case, but given [Petitioner’s] age and medical condition, the Court will 22 accept the parties' plea agreement and find that variance is appropriate.” (CR Doc. 161 at 23 17.) At sentencing, Petitioner stated he was satisfied with the services of his attorney. (Id. 24 at 4.) 25 Henry Ramos was sentenced on December 1, 2022, to 120 months of imprisonment 26 followed by lifetime supervision.2 (CR Doc. 149.) Ramos pled guilty to two counts of 27 distribution of child pornography (Counts 2 and 5) and one count of possession of child

28 2 Henry Ramos was initially sentenced on December 1, 2022. (CR Doc. 149.) The sentence was amended on December 14, 2022, (CR Doc. 150.) 1 pornography (Count 7) on November 23, 2021. (CR Docs. 74, 75.) Ramos’ sentencing 2 guideline range was 240 months’ imprisonment. (CR. Doc. 142 at 17.) His plea agreement 3 mandated a binding sentence of 120 months’ imprisonment. (CR Doc. 75 at 3.) Ramos did 4 not plead guilty to Count 1, conspiracy to sex traffic children, and the charge was dismissed 5 at sentencing pursuant to Ramos’ plea agreement. (Id. at 1.) 6 II. Discussion 7 In his § 2255 motion, Petitioner argues that his Sixth Amendment right to effective 8 assistance of counsel was violated by various actions his attorney took or failed to take.3 9 Petitioner alleges counsel was ineffective because counsel insisted on a plea deal without 10 sound evidence to support a finding of guilt. He asserts that counsel failed to advise him to 11 consider a jury trial option and failed to inform him that a jury trial would have provided 12 an opportunity to impeach law enforcement witnesses; persuade jurors to find the offense 13 of enticement rather than sex trafficking; call his own witnesses, including Ramos; and 14 provide expert forensic testimony to show that the minor in the pictures was not Ramos’ 15 nephew. (CV Doc. 1.) Petitioner states that it is likely that he would have moved for a jury 16 trial rather than accept the terms of the plea agreement had he been equipped with all of 17 the facts and discovery. (CV Doc. 1-1 at 14.) He challenges his counsel’s “weighing [of 18 the] best legal strategy against the evidence in Discovery and the potential outcome” and 19 counsel’s “mitigation strategy.” (Id. at 13, 16.) 20 Petitioner also asserts that counsel should have challenged the consent to search 21 Petitioner’s phone and the subsequent search warrant. Petitioner states his consent to search 22 was involuntary because he was under the influence and intimidated by law enforcement 23 officers. He contends that the search warrant obtained as a result of his initial consent 24 should have been precluded as fruit of the poisonous tree. Petitioner also asserts that the 25 plea agreement contained an unrealistic and unsupported guideline range which was not 26 consistent with any of the findings under discovery, and ultimately resulted in a term of 27 3 Petitioner’s motion is long and repetitive. It is sometimes difficult to differentiate 28 Petitioner’s claims and his case law descriptions. The Court has done its best to summarize Petitioner’s allegations in this Order. 1 imprisonment that was unwarranted. He contends proof of his counsel’s ineffectiveness is 2 that he received a sentence sixty-eight months longer than Ramos’ sentence. (CV Doc. 5 3 at 2.) 4 A. Section 2255 Standard 5 Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct his 6 sentence if the sentence was imposed in violation of the United States Constitution or laws 7 of the United States, was in excess of the maximum authorized by law, is otherwise subject 8 to collateral attack, or if the sentencing court was without jurisdiction. 28 U.S.C. § 2255(a). 9 A petitioner is entitled to an evidentiary hearing on his § 2255 motion “unless the motion 10 and the files and records of the case conclusively show that the prisoner is entitled to no 11 relief.” Id. § 2255(b); see also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) 12 (stating that summary dismissal is warranted if petitioner’s allegations are “palpably 13 incredible or patently frivolous”). However, “[i]f it plainly appears from the motion, any 14 attached exhibits, and the record of prior proceedings that the moving party is not entitled 15 to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” 16 Rule 4(b) of the Rules Governing Section 2255 Proceeding. 17 B. Waiver of Claims 18 By pleading guilty, Petitioner has waived all claims except the claim that his plea 19 was not voluntarily and intelligently made due to his attorney’s deficient advice (IAC 20 claim). “When a criminal defendant has solemnly admitted in open court that he is in fact 21 guilty of the offense with which he is charged, he may not thereafter raise independent 22 claims relating to the deprivation of constitutional rights that occurred prior to the entry of 23 the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea 24 by showing that the advice he received from counsel was not within the [range of 25 competence demanded of attorneys in criminal cases].” Tollett v. Henderson, 411 U.S. 258, 26 266–67 (1973). While claims of prior constitutional deprivation may play a part in 27 evaluating the advice rendered by counsel, they are not themselves independent grounds 28 for federal collateral relief. Id. at 267. Notably, Petitioner’s plea agreement specifically 1 informed him that he would be waiving pre-plea constitutional challenges. (CR Doc. 92 at 2 11-12.).) 3 In addition, Petitioner specifically waived his right to collaterally attack his 4 conviction and sentence except for claims of ineffective assistance of counsel. (Id.) 5 Generally, courts will enforce a defendant's waiver of his right to appeal if the language of 6 the waiver encompasses the defendant's right to appeal on the grounds claimed on appeal 7 and the waiver is knowingly and voluntarily made. United States v. Nunez, 223 F.3d 956, 8 958 (9th Cir. 2000). Thus, Petitioner’s IAC claim is limited to a claim that counsel provided 9 deficient advice that affected the guilty plea or waiver. See Washington v. Lampert, 422 10 F.3d 864, 871 (9th Cir. 2005) (“A plea agreement that waives the right to file a federal 11 habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim 12 that challenges the voluntariness of the waiver.”); see also United States v. Pruitt, 32 F.3d 13 431, 433 (9th Cir. 1994) (“We doubt that a plea agreement could waive a claim of 14 ineffective assistance of counsel based on counsel's erroneously unprofessional 15 inducement of the defendant to plead guilty or accept a particular plea bargain.”). 16 C. Ineffective Assistance of Counsel Standards 17 The Sixth Amendment guarantees criminal defendants a right to effective assistance 18 of counsel. Strickland v. Washington, 466 U.S. 668, 684–85 (1984). When evaluating an 19 ineffective assistance of counsel claim, a defendant must demonstrate that: (1) his counsel’s 20 performance was deficient; and (2) the deficient performance prejudiced the defense. Id. at 21 689. In evaluating IAC claims, judicial scrutiny of counsel’s performance is highly 22 deferential and court indulge a strong presumption that counsel’s conduct falls within the 23 wide range of reasonable professional assistance. Id. 24 D. If Not Waived, Petitioner’s Claims Lack Merit 25 Petitioner fails to show that his counsel’s alleged conduct was unreasonable or that 26 he was prejudiced by such conduct. The record does not support Petitioner’s claim that he 27 would have elected to proceed to trial had his attorney provided additional important 28 information about his trial rights, including Petitioner’s ability at trial to impeach law 1 enforcement witnesses; persuade jurors to find the offense of enticement rather than sex 2 trafficking; call his own witnesses, including Ramos; and provide expert forensic testimony 3 to show that the minor in the pictures was not Ramos’ nephew. 4 The record shows that Petitioner was aware of his trial rights. At the change of plea 5 hearing, the Magistrate Judge informed Petitioner of his ability to cross-examine the 6 government’s witnesses, to call witnesses and present evidence, and to argue to the jury 7 that the government could not satisfy its burden of proof. At the hearing, Petitioner stated, 8 under oath, that he understood his trial rights and waived those rights. (CR Doc. 160 at 9 10.)4 In addition, Petitioner acknowledged in his signed plea agreement that by pleading 10 guilty, he would be giving up his rights “to trial by jury; to confront, cross-examine, and 11 compel the attendance of witnesses; to present evidence in my defense; . . . and to appeal 12 or file any other challenge to my conviction or sentence.” (CR Doc. 92 at 15.) While he 13 asserts that his attorney “failed to communicate much of the facts, and virtually none of the 14 defense strategy intended,” the record refutes his conclusory allegations. See Jones v. 15 Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“[c]onclusory allegations. . . do not warrant 16 habeas relief.”) 17 Petitioner also fails to show that he was prejudiced by his allegedly uninformed 18 decision to forego his right to trial. While he argues broadly that he would have the 19 opportunity to cross-examine the government’s witnesses at trial, he does not explain how 20 cross-examination would have been beneficial. Petitioner states he would have called an 21 expert on forensics to testify that the photograph was not Ramos’ nephew. But it was never 22 contended that the photo was Ramos’ nephew, and whether or not it was Ramos’ nephew 23 was irrelevant to the charges. Ramos said he sent a picture of another boy in response to 24 Petitioner’s request for sexually explicit pictures of his nephew. Petitioner does not dispute 25 that he asked Ramos to send pictures of the nephew, the photo he received from Ramos 26 was child pornography, and Petitioner believed the photo to be of a person under the age 27 of 18. These facts are sufficient to satisfy the elements of Production of Child Pornography.

28 4 Notably, Petitioner does not claim that his attorney failed to advise him of these same rights in case CR-20-2370-TUC, which was resolved at the same time. 1 (See CR Doc. 92 at 17.) 2 Petitioner asserts that if he would have proceeded to trial, he could have challenged 3 his written consent to search his phone. Petitioner was not likely prejudiced by counsel’s 4 alleged failure to inform him that he could challenge this evidence. The video of 5 Petitioner’s interaction with law enforcement shows Petitioner coherently conversing with 6 the agents and asking questions about the effect of his consent. (CV Doc. 4, Attachment B, 7 23:30-1:15:00.) Law enforcement informed Petitioner that it was “fine” if he did not 8 consent, and Petitioner signed a standard consent form authorizing law enforcement to 9 search and seize his cell phone. (CV Docs. 4 at 9; 4-1 at 2.) The video does not suggest that 10 Petitioner was so intoxicated that he could not have voluntarily consented to the search. 11 And, with evidence lacking to support Petitioner’s claim that his consent was not voluntary, 12 his fruit of the poisonous tree argument regarding the subsequent search warrant would 13 also fail. 14 Petitioner argues that his attorney should have advised him not to accept the plea 15 agreement because there was no evidence to show that he took any “substantial step” to 16 exploit Ramos’ nephew, and no evidence that he encouraged the minor to take a picture of 17 himself. (CV. Doc. 1-1 at 17.) Petitioner contends that he was an “unwary innocent,” who 18 simply used “poor judgment” in his “sexually-charged” and inappropriate conversations, 19 which might qualify as Enticement, but not Sex Trafficking or Exploitation (Production). 20 (Id.) Had counsel advised Petitioner not to accept the plea agreement on this basis, 21 counsel’s advice would have been deficient. 22 Petitioner has a distorted interpretation of the evidence. His phone contained the 23 text conversation with Ramos where Ramos stated he was alone with his 12- and 14-year- 24 old nephews, and Petitioner offered to provide drugs to Ramos “if I get to f*** 1.” (CV 25 Doc. 4, Attach. E.) Petitioner offered increasingly large amounts of methamphetamine in 26 exchange for sex with Ramos’ nephew and took a substantial step towards engaging in 27 sexual conduct with Ramos’ minor nephew when he drove to Ramos’ apartment. Shortly 28 after the initial text exchange, Petitioner texted, “I’m already on my way.” (Id.) A short 1 time later, he texted Ramos he was “here.” (Id.) Petitioner only left because Ramos’ sister 2 and mother returned. (CV Doc. 4-5 at 6–7.)5 No rational juror would conclude that 3 Petitioner’s texts to travel to Ramos’ house to exchange drugs for sexual access to his 4 nephew was just “inappropriate banter. . . or suggestive role play, and nothing more,” or 5 that he did not take a substantial step toward exploiting minors. (CV Doc. 5 at 1-2.) Given 6 this evidence, counsel’s advice to plead guilty rather than proceed to trial was well within 7 the range of competence demanded of attorneys in criminal cases, particularly in light of 8 the applicable guideline sentence of life imprisonment. 9 E. Sentencing Claims 10 Petitioner’s sentencing claims are also waived because the length of his sentence is 11 not related to the voluntary and intelligent character of his plea. In addition, the claims are 12 without merit. The fact that Ramos received a lower sentence does not demonstrate 13 Petitioner’s counsel was ineffective. (CV Doc. 5 at 2.) Petitioner and Ramos did not engage 14 in the same conduct and the government did not offer them the same plea agreements. 15 Petitioner pled guilty to conspiracy to sex traffic a minor and production of child 16 pornography. (CR Doc. 92 at 1.) Ramos pled guilty to distribution of child pornography 17 and possession of child pornography. (CR Doc. 75 at 2-3.) The charges carried different 18 5 Petitioner does not challenge these facts. In fact, Petitioner admitted them under oath at 19 his change of plea hearing, during a colloquy with the court:

20 THE COURT: And by text message, did you agree with Mr. Ramos that you would provide him with methamphetamine in exchange for him providing you access to a 21 12-year-old child that was in his custody by the initials of MV1; correct?

22 THE DEFENDANT: Yes.

23 THE COURT: And that was for the purpose of you engaging in a sex act with that minor; correct? 24 THE DEFENDANT: Yes. 25 THE COURT: Specifically, on January 17th of 2020, did you travel to the home 26 where the victim was located?

27 THE DEFENDANT: Yes.

28 (CR Doc. 160 at 18–19.) 1 maximum and minimum penalties and the plea agreements reflected those differences. 2 Petitioner’s guideline range was life; Ramos’ was 240 months. Petitioner faced a minimum 3 statutory term of fifteen years imprisonment. By entering into a plea agreement, Petitioner 4 capped his exposure at 188 months—eight months above the mandatory minimum. By 5 entering into the plea agreement, Petitioner received a significant benefit. 6 IV. Certificate of Appealability 7 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 8 (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 9 Rules Governing Section 2255 Cases. “The district court must issue or deny a certification 10 of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the 11 Rules Governing Section 2255 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 12 issue only when the petitioner “has made a substantial showing of the denial of a 13 constitutional right.” The court must indicate which specific issues satisfy this showing. 14 See 28 U.S.C. § 2253(c)(3). With respect to claims rejected on the merits, a petitioner “must 15 demonstrate that reasonable jurists would find the district court’s assessment of the 16 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 For procedural rulings, a COA will issue only if reasonable jurists could debate whether 18 the petition states a valid claim of the denial of a constitutional right and whether the court’s 19 procedural ruling was correct. Id. Applying these standards, the Court declines to issue a 20 COA because the resolution of the petition is not debatable among reasonable jurists. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1|| V. Conclusion 2 For the foregoing reasons, IT IS ORDERED: || Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DENIED. 5 (1) In the event Petitioner files an appeal, the Court DENIES issuance of a Certificate 6 of Appealability. 7 (2) The Clerk of Court must enter judgment accordingly and CLOSE its file in this 8 action. 9 Dated this 2nd day of October, 2023. 10 11 □

13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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