United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Before the Court is defendant Darren Lamont McCoy's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ("Motion"). (Dkt. no. 119.) The Court ordered the government to respond and permitted McCoy to file a reply. The Court has considered the government's response (dkt. no. 123) and McCoy's reply (dkt. no. 125), even though McCoy's reply was untimely. The Court finds that an evidentiary hearing is appropriate on one of the two grounds raised in McCoy's Motion.
II. RELEVANT BACKGROUND
On December 14, 2011, the Grand Jury indicted McCoy on one count of felon in possession of a firearm. On July 3, 2012, the Grand Jury returned a Superseding Criminal Indictment charging McCoy with six counts, including one count of felon in possession of a firearm, two counts of interference with commerce by robbery and two counts of possession of a firearm during, in relation to, and in furtherance of a crime of violence. (Dkt. no. 45.) The Superseding Criminal Indictment alleges that McCoy was involved in two robberies - of a Pizza Hut and a Subway - on November 17, 2011.
On July 6, 2012, at a hearing on pending motions, McCoy's counsel represented that the parties were in the process of negotiating a plea and counsel would refile the motion to suppress within one week if plea negotiations were unsuccessful. (Dkt. no. 53.) The plea negotiation was unsuccessful and on July 20, 2012, the Magistrate Judge heard argument on McCoy's motion to suppress (dkt. no. 57). The Magistrate Judge subsequently issued a Report and Recommendation recommending that McCoy's motion to suppress be denied. (Dkt. no. 61.)
On September 24, 2012, shortly before the scheduled trial, the parties entered into a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (C) ("Plea Agreement"). (Dkt. no. 83.) McCoy changed his plea to Counts 5 and 6 of the Superseding Indictment and the Court accepted his guilty plea on September 24, 2012. (Dkt. nos. 83, 84.) After two hearings, the Court accepted the terms of the binding Plea Agreement and sentenced McCoy to a total sentence of three hundred (300) months on Counts 5 and 6.
McCoy raises two grounds in support of his Motion. First, McCoy contends that his attorney was ineffective in assisting him in connection with a prior plea offer of fifteen (15) years. Second, McCoy argues that the U.S. Probation Office failed to provide the Court with an independent recommendation as to the sentence to be imposed. The second ground is in effect a claim of procedural defect in sentencing.
When considering a motion under 28 U.S.C. § 2255, the court must grant a prompt hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The Ninth Circuit has found that a § 2255 evidentiary hearing is generally required where "the motion states a claim based on matters outside the record or events outside the courtroom." United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (citations omitted). The judge who decides the § 2255 motion may supplement her own recollections of the proceedings if she was the same judge who presided over the challenged proceedings. See Blackledge v. Allison, 431 U.S. 63, 74 n. 4 (1977).
Based on the Court's review of the pertinent records and the Court's recollections of the proceedings, the Court finds that the records conclusively show that McCoy is entitled to no relief on the second ground raised in the Motion, as discussed further below. However, the Court finds that an evidentiary hearing is appropriate on the claim of ineffective assistance of counsel.
A. Claim of Ineffective Assistance of Counsel
1. Pertinent Facts
On December 20, 2012, shortly before the first scheduled sentencing hearing, McCoy sent a letter to the Court where he indicated that he had rejected a previous plea offer of fifteen (15) years because his attorney informed him that the offer was a "joint deal" with the state and he would have to agree to a pair of ten (10) to life sentences consecutive to his federal sentence. (Dkt. 86.) At the sentencing hearing on January 7, 2013, the Court held an ex parte hearing to inquire of McCoy and his counsel as to the circumstances relating to the prior plea offer of fifteen (15) years and McCoy's rejection of that offer. (Dkt. nos. 93, 110, 111.) Apparently, before the evidentiary hearing on McCoy's motion to suppress, the government presented a plea offer of fifteen (15) years which was made available up until the time of the hearing. (Dkt. no. 110 at 24.) The evidentiary hearing was continued to permit McCoy time to consider the government's offer. Because McCoy faced state charges, McCoy's counsel, at McCoy's request and with the assistance of the government's counsel, obtained an offer from the state prosecutor for McCoy to enter into a plea regarding the state offenses for a pair of ten (10) to life sentences consecutive to the sentence in this case. McCoy's counsel represented that McCoy did not want to accept a federal plea until there was a plea in the state offenses that was acceptable to him. ( Id. at 9.) McCoy recalled both offers being presented at the same time and his counsel did not have a clear recollection of when the offer in the state court cases was presented. ( Id. at 12.) McCoy represented that, because of the way the offers were presented and the use of the phrase "global settlement, " he thought that the offer in this case was contingent on his acceptance of the offer in the state cases. (Dkt. no. 4 at 5-6.) That is, he thought that he could only accept the offer of fifteen (15) years in this case if he also accepted the offer of a pair of ten (10) to life sentences in the state cases. McCoy acknowledged that his attorney did not specifically tell him he had to accept both offers, and that he and his attorney did not discuss whether or not he could accept one offer and not the other. (Dkt. no. 111 at 11, 14.) McCoy's counsel represented that she did not inform McCoy that the offer in this case was contingent on his acceptance of the offer in the state court cases and that he had to accept both offers. ( Id. at 8.) She also did not ...