United States District Court, D. Nevada
Lester Roger Decker (“Decker”) has filed a motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 (ECF No. 163). The government has
responded (ECF No. 167), and Decker has replied (ECF No.
173). On September 5, 2017, pursuant to court order, the
government submitted the affidavits and declarations of
Decker's prior attorneys Julie Cavanaugh-Bill, John Neil
Stephenson, and Karena K. Dunn. (ECF No. 175). Decker has
responded (ECF No. 177).
April 15, 2013, a criminal complaint was filed alleging that
Decker had violated 18 U.S.C. §§ 2241(a), 1151 and
1153 by using force to engage in a sexual act with an
unwilling victim. (ECF No. 1). Decker made his initial
appearance with retained counsel John Neil Stephenson the
following day. (ECF No. 2). At the time, Stephenson was
employed by Cavanaugh-Bill Law Offices with Julie
Cavanaugh-Bill, who also appeared on Decker's behalf.
(See ECF No. 7). On May 1, 2013, the grand jury
returned an indictment charging Decker with engaging in and
attempting to engage in aggravated sexual abuse in violation
of 18 U.S.C. §§ 2241(a), 1151 and 1153. (ECF No.
7, 2013, the government offered Decker a plea agreement that
would have allowed Decker to plead guilty to abusive sexual
contact in violation of 18 U.S.C. § 2244(a). (ECF No.
175-1 (Cavanaugh-Bill Aff. Ex. A); ECF No. 175-2 (Stephenson
Decl. ¶ 4 & Ex. 1)). Stephenson emailed the proposed
agreement to Decker's wife, describing it as a
“very, very good plea bargain deal” and
thereafter met with Decker to discuss it. (ECF No. 175-2
(Stephenson Decl. ¶ 5)). Decker rejected the plea. (ECF
2013, Stephenson left Cavanaugh-Bill's law firm and was
removed from the case. (ECF No. 30; ECF No. 175-2 (Stephenson
Decl. ¶ 7)). A few days later, attorney Martin Wiener
entered an appearance on Decker's behalf as co-counsel
with Cavanaugh-Bill. (ECF No. 31). Sometime later,
Cavanaugh-Bill and Wiener presented Decker with a plea offer
substantially similar to the one he had already rejected.
(ECF No. 177). In mid-August 2013, Decker decided to accept
the offer, and a change of plea hearing was scheduled for
September 25, 2013. (ECF No. 39; ECF No. 175-1
(Cavanaugh-Bill Aff. ¶ 6)). Shortly before the hearing,
however, Decker decided he did not want to plead and told
Cavanaugh-Bill and Wiener that he no longer wanted them
representing him and that he would be retaining Stephenson as
counsel. (ECF No. 175-1 (Cavanaugh-Bill Aff. ¶ 6)).
Cavanaugh-Bill and Wiener filed motions to withdraw, which
the court approved, and on September 19, 2013, Stephenson
re-appeared on Decker's behalf. (ECF Nos. 43, 48, 51, 52
& 55). On September 25, 2013, Karena K. Dunn also entered
an appearance on Decker's behalf. (ECF No. 57). Pursuant
to defense counsel's request, trial was continued to
December 16, 2013. (ECF Nos. 55 & 58).
November 18, 2013, Decker filed a motion to suppress
statements he made to agents William Coochyouma and David
Elkington on April 16, 2013, allegedly in violation of
Miranda. (ECF No. 62). Specifically, Decker admitted
to striking and engaging in sexual contact with the victim.
(ECF No. 123 (Tr. Evid. Hr'g 30-31); ECF No. 68-1). At an
evidentiary hearing on November 26, 2013, Decker testified
that before he made these admissions the agents had told him
his statements would be “off the record.” (ECF
No. 123 (Tr. Evid. Hr'g 19)). Although the agents denied
telling Decker his statements would be “off the record,
” Elkington admitted that after Decker invoked his
right to an attorney, Elkington asked: “Before we go,
do you have anything you want to talk about?”
(Id. at 8; ECF No. 97 at 11, 17-18)). Decker's
incriminatory statements then followed. Finding
Elkington's question the functional equivalent of
interrogation, the court granted Decker's motion and
precluded the government's use of Decker's statements
during its case in chief. (ECF No. 96). The court noted,
however, that it was not ruling as to whether the statements
could come in for other purposes during trial. (ECF No. 151
(Trial Tr. 2-6)).
December 11, 2013, the government submitted proposed jury
instructions, which included separate instructions for
aggravated sexual abuse and attempted aggravated sexual
abuse. (ECF No. 88).
commenced on December 16, 2013. On December 17, 2013, the
court discussed with counsel, in Decker's presence, how
to instruct the jury with respect to the attempt charge and
what type of verdict forms to use. (ECF No. 152 (Trial Tr.
354-58)). The next morning, counsel advised the court that
Decker did not wish to testify, and the court canvassed
Decker about that decision. (ECF No. 153 (Trial Tr. 432-34)).
Decker also filed a motion for judgment of acquittal on the
attempt charge, arguing that the evidence was insufficient to
support such a conviction. (See ECF No. 104). The
court denied the motion before instructing the jury.
(See ECF No. 105). On December 19, 2013, the jury
found Decker guilty of attempted aggravated sexual abuse but
not guilty of aggravated sexual abuse. (See ECF Nos.
trial, counsel filed a second motion for acquittal on the
attempt conviction, which the court denied. (ECF Nos. 119
& 122). In a motion for reconsideration of the
court's order, counsel represented that they were not
reasonably on notice of the attempt charge before trial.
(See ECF No. 130 at 2-3). In fact, counsel asserted
in the motion that it was not clear Decker “would be
prosecuted on the attempt charge until the very end of
trial.” (Id. at 7).
to sentencing, the government moved for a two-level
enhancement for obstruction of justice, arguing that Decker
lied at the November 26, 2013, evidentiary hearing when,
among other things, he testified that the agents told him his
statements would be “off the record.” (ECF No.
125). Defense counsel opposed the government's motion,
arguing that the court had not found Decker had perjured
himself. (ECF No. 126). At sentencing on March 19, 2014, the
court found that Decker testified falsely when he said that
the agents told him the conversation would be “off the
record” and concluded the two-level obstruction
enhancement should therefore apply. (ECF No. 150 (Sent. Tr.
27-32)). The court accordingly sentenced Decker to a period
of 190 months. Judgment of conviction was entered on March
21, 2014. (ECF No. 144).
appealed the conviction, and the Ninth Circuit affirmed. (ECF
Nos. 146 & 157). Decker then filed a petition for writ of
certiorari, which the Supreme Court denied on January 11,
2016. (ECF Nos. 161 & 162). On January 3, 2017, Decker
filed the instant verified petition to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. (ECF Nos.
163 & 164).
to § 2255, a federal inmate may move to vacate, set
aside, or correct his sentence if: (1) the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose the sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. Id. § 2255.
Decker advances six grounds for relief in his petition, all
of which allege ineffective assistance of counsel.
assistance of counsel is a cognizable claim under §
2255. Baumann v. United States, 692 F.2d 565, 581
(9th Cir. 1982). In order to prevail on a such a claim, the
defendant must meet a two-prong test. Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, the
defendant must show that his counsel's performance fell
below an objective standard of reasonableness. Id.
at 687-88. “Review of counsel's performance is
highly deferential and there is a strong presumption that
counsel's conduct fell within the wide range of
reasonable representation.” United States v.
Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986).
Second, the defendant must show that the deficient
performance prejudiced his defense. Strickland, 466
U.S. at 687. This requires showing that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694.
first ground for relief, Decker asserts that Cavanaugh-Bill
had represented one of the government's trial witnesses -
Cecilia Baldazo - in an unrelated case. Decker asserts that
this conflict prevented Cavanaugh-Bill and Stephenson from
vigorously defending Decker by pursuing evidence to impeach
Baldazo and prevented Stephenson from ...