1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, Case No. 22-cr-0994-BAS-1 14 Case No. 23-cv-2160-BAS Plaintiff, 15 ORDER GRANTING IN PART AND DENYING IN PART 16 v. DEFENDANT’S MOTION TO
17 ASHLEY ELIZABETH ZAMORA, VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 18 Defendant. 28 U.S.C. § 2255 (ECF No. 60)
19 20 21 Defendant Ashley Elizabeth Zamora filed a Motion to Vacate, Set Aside, or 22 Correct Sentence under 28 U.S.C. § 2255, claiming she received ineffective 23 assistance of counsel. She also requests appointment of counsel and moves for bond 24 pending appeal. (ECF No. 60.)1 The Government opposes. (ECF No. 69.) For the 25 reasons stated below, the Court grants in part and denies in part the Motion. 26 27 1 I. BACKGROUND 2 Defendant pled guilty pursuant to a written plea agreement in which she 3 admitted that she did knowingly and intentionally import 15.26 kilograms of 4 methamphetamine. (Plea Agreement, ECF No. 28.) As part of this written plea 5 agreement, Defendant agreed that no one had made any promises to her other than 6 those contained in the agreement and that she was pleading guilty because she was 7 guilty and for no other reason. (Id. § VI.B, D.) Defendant further indicated she 8 understood the Sentencing Guidelines were only advisory and not mandatory and that 9 the Court may impose a sentence more severe than the guideline range. (Id. § VII.) 10 Defendant agreed “the sentence is within the sole discretion of the sentencing judge 11 who may impose the maximum sentence provided by statute,” which Defendant was 12 informed was twenty years. (Id. § IX.) Finally, Defendant agreed, “It is uncertain at 13 this time what defendant’s sentence will be . . . . Any estimate of the probable 14 sentence by defense counsel is not a promise and is not binding on the Court.” (Id. 15 § IX (emphasis in original).) 16 These agreements were confirmed orally at the time Defendant pled guilty. 17 (Plea Colloquy Tr., ECF No. 74.) Specifically, the Court told Defendant twice that 18 “regardless of any agreement you or your attorney has with the prosecutor about what 19 your recommended or predicted sentence will be, the sentencing judge can impose a 20 sentence up to and including the maximum penalt[y] [of 20 years in prison].” (Id. 21 7:9–14; 8:18–25.) Furthermore, Defendant confirmed that no other promises had 22 been made to her to get her to plead guilty other than what is written in the plea 23 agreement. (Id. 11:20–22, 25.) 24 At the time of this offense, Defendant was a 26-year-old who had completed a 25 paralegal certificate and worked fulltime as a paralegal for two years before she left 26 to become a student at California State University, Long Beach. (Presentence Report 27 (“PSR”) ¶¶ 96–103, ECF No. 33.) Despite the fact that she was financially supported 1 by her parents, Defendant committed the offense because she wanted the money to 2 purchase a new vehicle. (Id. ¶ 59.) 3 While she was in prison, Defendant was recorded asking her mother to retain 4 a lawyer for her because she heard of another female inmate who received a six- 5 month sentence while other inmates were not so lucky. (PSR ¶ 31.) She reiterated 6 to a friend that she knew of an inmate who was sentenced to six months and a year 7 of house arrest and commented, “Bruh, that would be chillin’.” (Id. ¶ 39.) 8 Defendant now claims she received ineffective assistance of counsel, alleging 9 that her retained lawyer: (1) promised her he would get her a sentence of six months 10 plus one year of house arrest; (2) set up a proffer that was in violation of her attorney- 11 client privilege; (3) told her she could not file a notice of appeal because she had 12 waived her right to do so, which was not true; and (4) failed to give her a copy of the 13 Presentence Report before sentencing. (Mot., ECF No. 60.) Defense counsel files a 14 statement under penalty of perjury denying all of these claims. (ECF No. 69-1.) 15 II. ANALYSIS 16 “[A] defendant who pleads guilty upon the advice of counsel may only attack 17 the voluntary and intelligent character of the guilty plea by showing that the advice 18 [s]he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 19 979 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in 20 a claim of ineffective assistance of counsel in a guilty plea, Defendant must meet the 21 Strickland test; that is, she must show, first, “that counsel’s assistance was not within 22 the range of competence demanded of counsel in criminal cases,” and second, that 23 she suffered actual prejudice as a result of this incompetence. Lambert, 393 F.3d at 24 979–80; Hill, 474 U.S. at 57–58. 25 “A deficient performance is one in which counsel made errors so serious that 26 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 27 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 1 is a strong presumption that counsel’s conduct fell within the wide range of 2 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 3 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 4 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 5 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 6 In order to satisfy the second “prejudice” prong in a guilty plea case, 7 “defendant must show that there is a reasonable probability that, but for counsel’s 8 errors, [s]he would not have pled guilty and would have insisted on going to trial.” 9 Hill, 474 U.S. at 59. 10 A. Promise of a Six-Month Sentence 11 Defendant’s claim that she was promised a six-month sentence by her attorney 12 is belied by the record. First, her attorney denies telling her that. (ECF No. 69-1.) 13 Second, at the time Defendant pled guilty, she confirmed that no one had made any 14 promises to her other than those contained in the plea agreement. (Plea Agreement 15 § VI.B; Plea Colloquy Tr. 11:20–22, 25.) 16 Additionally, even if Defendant had shown that her attorney had promised her 17 a six-month sentence, she cannot demonstrate that, but for this representation, she 18 would have insisted on going to trial. In her written plea agreement, Defendant 19 specifically agreed that “[a]ny estimate of the probable sentence by defense counsel 20 is not a promise and is not binding on the court.” (Plea Agreement § IX.) She was 21 told the ultimate sentence would be up to the sentencing judge and that she could be 22 sentenced up to the maximum term of twenty years in custody. (Id.; Plea Colloquy 23 Tr. 7:9–14, 8:18–25.) Nonetheless, Defendant agreed to go forward with her guilty 24 plea. 25 B. Setting Up the Proffer 26 After Defendant signed her plea agreement and entered her guilty plea, in 27 preparation for sentencing, defense counsel scheduled a debrief between Defendant 1 in her sentence under U.S.S.G. §§ 2D1.1(b)(18) and 5C1.2. (ECF No. 69-1.) 2 Apparently, this debrief was successful.
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, Case No. 22-cr-0994-BAS-1 14 Case No. 23-cv-2160-BAS Plaintiff, 15 ORDER GRANTING IN PART AND DENYING IN PART 16 v. DEFENDANT’S MOTION TO
17 ASHLEY ELIZABETH ZAMORA, VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 18 Defendant. 28 U.S.C. § 2255 (ECF No. 60)
19 20 21 Defendant Ashley Elizabeth Zamora filed a Motion to Vacate, Set Aside, or 22 Correct Sentence under 28 U.S.C. § 2255, claiming she received ineffective 23 assistance of counsel. She also requests appointment of counsel and moves for bond 24 pending appeal. (ECF No. 60.)1 The Government opposes. (ECF No. 69.) For the 25 reasons stated below, the Court grants in part and denies in part the Motion. 26 27 1 I. BACKGROUND 2 Defendant pled guilty pursuant to a written plea agreement in which she 3 admitted that she did knowingly and intentionally import 15.26 kilograms of 4 methamphetamine. (Plea Agreement, ECF No. 28.) As part of this written plea 5 agreement, Defendant agreed that no one had made any promises to her other than 6 those contained in the agreement and that she was pleading guilty because she was 7 guilty and for no other reason. (Id. § VI.B, D.) Defendant further indicated she 8 understood the Sentencing Guidelines were only advisory and not mandatory and that 9 the Court may impose a sentence more severe than the guideline range. (Id. § VII.) 10 Defendant agreed “the sentence is within the sole discretion of the sentencing judge 11 who may impose the maximum sentence provided by statute,” which Defendant was 12 informed was twenty years. (Id. § IX.) Finally, Defendant agreed, “It is uncertain at 13 this time what defendant’s sentence will be . . . . Any estimate of the probable 14 sentence by defense counsel is not a promise and is not binding on the Court.” (Id. 15 § IX (emphasis in original).) 16 These agreements were confirmed orally at the time Defendant pled guilty. 17 (Plea Colloquy Tr., ECF No. 74.) Specifically, the Court told Defendant twice that 18 “regardless of any agreement you or your attorney has with the prosecutor about what 19 your recommended or predicted sentence will be, the sentencing judge can impose a 20 sentence up to and including the maximum penalt[y] [of 20 years in prison].” (Id. 21 7:9–14; 8:18–25.) Furthermore, Defendant confirmed that no other promises had 22 been made to her to get her to plead guilty other than what is written in the plea 23 agreement. (Id. 11:20–22, 25.) 24 At the time of this offense, Defendant was a 26-year-old who had completed a 25 paralegal certificate and worked fulltime as a paralegal for two years before she left 26 to become a student at California State University, Long Beach. (Presentence Report 27 (“PSR”) ¶¶ 96–103, ECF No. 33.) Despite the fact that she was financially supported 1 by her parents, Defendant committed the offense because she wanted the money to 2 purchase a new vehicle. (Id. ¶ 59.) 3 While she was in prison, Defendant was recorded asking her mother to retain 4 a lawyer for her because she heard of another female inmate who received a six- 5 month sentence while other inmates were not so lucky. (PSR ¶ 31.) She reiterated 6 to a friend that she knew of an inmate who was sentenced to six months and a year 7 of house arrest and commented, “Bruh, that would be chillin’.” (Id. ¶ 39.) 8 Defendant now claims she received ineffective assistance of counsel, alleging 9 that her retained lawyer: (1) promised her he would get her a sentence of six months 10 plus one year of house arrest; (2) set up a proffer that was in violation of her attorney- 11 client privilege; (3) told her she could not file a notice of appeal because she had 12 waived her right to do so, which was not true; and (4) failed to give her a copy of the 13 Presentence Report before sentencing. (Mot., ECF No. 60.) Defense counsel files a 14 statement under penalty of perjury denying all of these claims. (ECF No. 69-1.) 15 II. ANALYSIS 16 “[A] defendant who pleads guilty upon the advice of counsel may only attack 17 the voluntary and intelligent character of the guilty plea by showing that the advice 18 [s]he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 19 979 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in 20 a claim of ineffective assistance of counsel in a guilty plea, Defendant must meet the 21 Strickland test; that is, she must show, first, “that counsel’s assistance was not within 22 the range of competence demanded of counsel in criminal cases,” and second, that 23 she suffered actual prejudice as a result of this incompetence. Lambert, 393 F.3d at 24 979–80; Hill, 474 U.S. at 57–58. 25 “A deficient performance is one in which counsel made errors so serious that 26 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 27 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 1 is a strong presumption that counsel’s conduct fell within the wide range of 2 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 3 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 4 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 5 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 6 In order to satisfy the second “prejudice” prong in a guilty plea case, 7 “defendant must show that there is a reasonable probability that, but for counsel’s 8 errors, [s]he would not have pled guilty and would have insisted on going to trial.” 9 Hill, 474 U.S. at 59. 10 A. Promise of a Six-Month Sentence 11 Defendant’s claim that she was promised a six-month sentence by her attorney 12 is belied by the record. First, her attorney denies telling her that. (ECF No. 69-1.) 13 Second, at the time Defendant pled guilty, she confirmed that no one had made any 14 promises to her other than those contained in the plea agreement. (Plea Agreement 15 § VI.B; Plea Colloquy Tr. 11:20–22, 25.) 16 Additionally, even if Defendant had shown that her attorney had promised her 17 a six-month sentence, she cannot demonstrate that, but for this representation, she 18 would have insisted on going to trial. In her written plea agreement, Defendant 19 specifically agreed that “[a]ny estimate of the probable sentence by defense counsel 20 is not a promise and is not binding on the court.” (Plea Agreement § IX.) She was 21 told the ultimate sentence would be up to the sentencing judge and that she could be 22 sentenced up to the maximum term of twenty years in custody. (Id.; Plea Colloquy 23 Tr. 7:9–14, 8:18–25.) Nonetheless, Defendant agreed to go forward with her guilty 24 plea. 25 B. Setting Up the Proffer 26 After Defendant signed her plea agreement and entered her guilty plea, in 27 preparation for sentencing, defense counsel scheduled a debrief between Defendant 1 in her sentence under U.S.S.G. §§ 2D1.1(b)(18) and 5C1.2. (ECF No. 69-1.) 2 Apparently, this debrief was successful. Although the Government had initially filed 3 a Sentencing Summary Chart with no request for a safety valve departure and 4 recommending that Defendant’s guideline range be calculated as 135–168 months 5 (ECF No. 43), the day after the proffer, the Government filed an Amended 6 Sentencing Summary Chart requesting that a safety valve departure be granted— 7 reducing the guideline range recommendation to 46–57 months (ECF No. 52). 8 Defendant fails to demonstrate how the debrief that resulted in a considerably 9 lower sentencing recommendation from the Government was ineffective assistance 10 of counsel. Nor does Defendant explain how a proffer conducted after she had pled 11 guilty affected her decision to plead guilty. 12 C. Filing a Notice of Appeal 13 Defendant claims she asked her attorney to file a Notice of Appeal, but he 14 declined, telling her she had waived her right to appeal, which Defendant claims was 15 not true.2 Defense counsel represents that he explained to Defendant that he does not 16 handle appellate work and offered to provide her with an alternative appellate 17 attorney to handle her appeal. (ECF No. 69-1.) Nonetheless, based on Roe v. Flores- 18 Ortega, 528 U.S. 470, 477 (2000), the Government does not oppose the Court 19 vacating and reentering the judgment in this case to allow Defendant to pursue an 20 appeal if she still wishes to do so. 21 D. Counsel Failing to Provide a Copy of the Presentence Report 22 “[A] defense counsel’s failure to show his client the presentence report falls 23 below the standard of reasonable competent representation.” United States v. Donn, 24 661 F.2d 820, 874 (9th Cir. 1981). However, defense counsel states under penalty 25 26
27 2 According to Defendant’s plea agreement, confirmed in her plea colloquy, she did waive her right to appeal so long as she was sentenced to less than seventy-one months. (Plea Agreement 1 of perjury that he reviewed the Presentence Report with Defendant before sentencing. 2 (ECF No. 69-1.) 3 Even if this statement were not true, Defendant must still satisfy the prejudice 4 prong of Strickland. Defendant fails to point to any information in the Presentence 5 Report that she claims was materially false or even misleading. The Court cannot 6 evaluate the prejudice prong without at least a suggestion that Defendant’s alleged 7 failure to see the report led to a failure to object to incorrect, false, or misleading 8 information in the report. 9 Therefore, even if counsel did not show Defendant the Presentence Report in 10 advance of sentencing, which Defendant fails to demonstrate, she still has not shown 11 sufficient prejudice for the ineffective assistance claim to be successful. 12 III. CONCLUSION 13 Defendant fails to demonstrate either deficient performance by her defense 14 counsel or any prejudice from the alleged deficient performance. Therefore, the 15 Court denies the Motion on all grounds except the ground based on filing a Notice of 16 Appeal. 17 Because Defendant may have wanted to file an appeal but was unable to do so, 18 the Court will vacate the original judgment and reenter it to allow Defendant to 19 pursue an appeal if she still wishes to do so. The Court expresses no opinion on the 20 success of such an appeal given that Defendant waived her right to appeal at the time 21 of her guilty plea and again at sentencing. Defendant is cautioned that if she wishes 22 to pursue an appeal, she must file the notice within fourteen days of the date of this 23 order or she will lose her right to appeal. 24 Accordingly, the Court GRANTS IN PART and DENIES IN PART the 25 Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (ECF No. 26 60.) The Clerk of Court is ordered to close the civil companion case (No. 23-cv- 27 2160-BAS). 1 KK 2 CERTIFICATE OF APPEALABILITY 3 A district court must issue or deny a certificate of appealability (“COA”) when 4 |{it enters a final order adverse to the § 2255 movant. The Court’s ruling is adverse on 5 |{all grounds except the one concerning a notice of appeal. “A COA may issue ‘only 6 |{if the applicant has made a substantial showing of the denial of a constitutional 7 \\right.’” Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting 28 U.S.C. § 2253(c)). “At 8 ||the COA stage, the only question is whether the applicant has shown that ‘jurists of 9 ||reason could disagree with the district court’s resolution of [her] constitutional claims 10 |;or that jurists could conclude the issues presented are adequate to deserve 11 |}encouragement to proceed further.’” Jd. (quoting Miller El v. Cockrell, 537 U.S. 322, 12 (2003)). 13 Defendant’s § 2255 Motion does not meet this standard. Her arguments are 14 |} without merit and her factual contentions are contradicted by the record before the 15 ||Court. Accordingly, the Court declines to issue a certificate of appealability in this 16 |/action for all those grounds denied by the Court above. 17 IT IS SO ORDERED. 18 19 || DATED: March 5, 2024 (pict qc Apphtats 20 United States District Judge 21 22 23 24 25 26 27 28