United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is Defendant Terrell Lamar McBride's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 89.) The Government filed a Response (ECF No. 92) and the Defendant filed a Reply (ECF No. 98.) The Defendant also filed a Supplement (ECF No. 99) to which the Government did not object or respond.
The Defendant pled guilty to Armed Bank Robbery, 18 U.S.C. § 2113(a), (d), and Possession, Use and Carrying Firearm During, in Relation to, and in Furtherance of a Crime of Violence (bank robbery), 18 U.S.C. § 924(c)(1)(A). (ECF Nos. 50, 51.) He was sentenced to 47 months for the Armed Bank Robbery with a consecutive term of 84 months for the Possession, Use and Carrying Firearm During, in Relation to, and in Furtherance of a Crime of Violence. (ECF No. 61.) The written Plea Agreement signed by the Defendant contained a waiver of any claims under 28 U.S.C. § 2255 except for non-waivable claims of ineffective assistance of counsel. (Plea Agreement p. 6, ECF No. 50.)
The Defendant essentially claims his trial counsel was ineffective for failing to explain to him that a possible seven-year mandatory minimum sentence could be imposed instead of a five-year mandatory minimum sentence and for failing to advise him that he could file a supplement to the Anders brief. The Defendant also claims the Indictment was deficient, the Court failed to properly advise him during his plea hearing, and the Government violated its plea agreement when it requested the Court apply the seven-year mandatory minimum.
More specifically, the Defendant claims in Ground One of his motion that his trial counsel was ineffective because his counsel advised him of the correct statutory minimum sentence for his pleas. (Ground One p. 1, Attachment A to Motion to Vacate, ECF No. 89.) He also claims that the Court did not make clear at his Plea Hearing which mandatory minimum applied. ( Id. ) The Defendant further claims the Court failed to inform him of the elements of "brandishing" a firearm. ( Id. at 2.) Finally, the Defendant claims that but for his appellate counsel's failure to raise the Court's error on direct appeal, the outcome would have been different. ( Id. )
In Ground Two, the Defendant claims his appellate counsel was ineffective for failing to advise him that he could file a supplemental brief. (Ground Two p. 1, Attachment B to Motion to Vacate, ECF No. 89.) The Defendant explains that he would have filed a brief arguing that any fact that increases the statutory mandatory minimum penalty must be charged in the indictment and proved to the jury beyond a reasonable doubt. ( Id. )
In Ground Three, the Defendant claims that because "brandishing a firearm" constituted a new aggravated crime, each element should have been charged in the Indictment and the Government violated the Plea Agreement by requesting a sentence outside the scope of the Indictment. (Ground Three p. 1, Attachment C to Motion to Vacate, ECF No. 89.) He contends that the resulting sentence is a miscarriage of justice. ( Id. )
In Ground Four, the Defendant simply claims that his trial counsel was ineffective for advising him that he faced "only" a five-year mandatory minimum and that with such knowledge he would have gone to trial. (Motion to Vacate p. 8, ECF No. 89.)
III. LEGAL STANDARDS
a. Ineffective Assistance of Counsel
To establish a claim for ineffective assistance of counsel, a defendant must first show that counsel's conduct was not "within the range of competence demanded of attorneys in criminal cases." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, a petitioner must also show that he was prejudiced by that incompetent conduct. See Id. at 692.
Under this standard, the question is whether "counsel's representation fell below an objective standard of reasonableness, " and the Court's inquiry begins with a "strong presumption that counsel's conduct [falls] within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987) (as amended) (citations omitted). The Supreme Court recently explained that courts evaluating ineffective assistance claims "must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance" and that a petitioner must show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (internal citations and quotations omitted). Accordingly, "the standard for judging counsel's representation is a most deferential one... the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge." Id. at 788. Petitioner must also demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
b. Guilty Plea Waiver
The Ninth Circuit enforces valid appeal waivers. United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007); see also United States v. McBride, 505 F.Appx. 640 (9th Cir. 2013) cert. denied, 133 S.Ct. 2380 (2013) reh'g denied, 134 S.Ct. 31 (2013) (dismissing McBride's appeal based upon appeal waiver).
c. Evidentiary Hearing
"The district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). "No evidentiary hearing is necessary when the issue of credibility can be conclusively decided on the basis of documentary testimony and evidence in the record." Shah v. United States, 878 F.2d 1156, 1160 (9th Cir. 1989).
d. When a Firearm is "Brandished"
Title 18 of the United States Code § 924(c)(1)(D)(4) provides a five-year mandatory minimum term of custody as punishment unless a firearm was brandished in which case a seven-year mandatory minimum applies. Section 924(c)(1)(D)(4) defines brandishing as follows:
For purposes of this subsection, the term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.
The Defendant initially intended to enter a plea of guilty without a written plea agreement and the canvass during the plea hearing proceeded accordingly. (ECF Nos. 51, 80.) However, when the Court began asking counsel questions designed to explore whether the Defendant has received effective assistance of counsel during plea negotiations, pursuant to Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399 (2012), counsel for the Government misspoke and represented that the rejected plea offer included a promise from the Government that they would recommend the low end of the guideline range at sentencing. Id. Upon hearing this option, the Defendant who was previously going to plead guilty without any promises, suddenly indicated he was willing to accept the written plea offer. Id. Upon review of the previously rejected written plea agreement, the Government realized that the promise to recommend the low end of the guidelines was a new term and never was part of the initial offer. Id. However, the Government ultimately determined the new term was actually a reasonable one, and the Court continued the plea hearing until later in the afternoon so that the Government could attempt to obtain permission to add the new term to the previous plea offer. Id.
Later that same afternoon, the Defendant pled guilty to a new written plea agreement, which included the additional promise by the Government to recommend the low end of the guideline range. (ECF No. 51.) The written Plea Agreement also included the previous standard waiver of appeal.
a. Guilty Plea Waiver
The Defendant claims that the Court did not make clear at his Plea Hearing which of the two mandatory minimum sentences applied and that the Court failed to inform him of the elements of "brandishing" a firearm. The Defendant also claims that because "brandishing a firearm" constituted a new aggravated crime, each element should have been charged in the Indictment and the Government violated the Plea Agreement by requesting a sentence outside the scope of the Indictment. He explains that the resulting sentence is a miscarriage of justice. However, the Defendant has failed to demonstrate that the Court was required to provide such information, that the Indictment was deficient or that the Government violated the Plea Agreement.
Furthermore, the Defendant waived his right to appeal his conviction pursuant to 18 U.S.C. § 924(c). The Defendant signed a written Plea Agreement which included a waiver of appeal:
In exchange for the concessions made by the United States in this plea agreement, Defendant knowingly and expressly waives the right to appeal the conviction and any sentence that is imposed within the applicable sentencing guideline range as contemplated by the parties, further waives the right to appeal the manner in which that sentence was determined on the grounds set forth in Title 18, United States Code, Section 3742, waives all collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence and the procedure by which the court adjudicated guilt and imposed ...