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United States v. Decker

United States District Court, D. Nevada

October 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LESTER ROGER DECKER, Defendant.

          ORDER

         Defendant 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).

         On 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. 13).

         On June 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 No. 177).

         In July 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).

         On 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)).

         On 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).

         Trial 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. 114-17).

         Following 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).

         Prior 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).

         Decker 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).

         Pursuant 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.

         Ineffective 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.

         I. Ground One

         In his 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 ...


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