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United States v. Loisel

United States District Court, D. Nevada

January 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL DANIEL LOISEL, Defendant.

ORDER GRANTING IN PART § 2255 MOTIONAND GRANTINGMOTION TO APPOINT COUNSEL (ECF Nos. 34, 40)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Defendant Paul Daniel Loisel moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 34. Loisel was charged in a 34-count indictment with multiple counts of interference with commerce by robbery under 18 U.S.C. § 1951 and possession of a firearm during, in relation to, and in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A). ECF No. 1. He also was charged with one count of discharge of a firearm during, in relation to, and in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A). Id. Loisel faced a mandatory minimum sentence of 407 years if convicted on all charges. ECF No. 24 at 11.

         The parties entered into a binding plea agreement under Federal Rule of Criminal Procedure 11(c). ECF No. 24. Under the plea agreement, Loisel pleaded guilty to counts one, three, eleven, sixteen, nineteen, and twenty-one of the indictment, and the parties stipulated to a 300-month sentence. Id. (five counts of interference with commerce by robbery and one count of discharge of a firearm). The Government agreed to dismiss the remaining charges. Id. Loisel agreed not to request a sentence below 300 months. Id. at 12.

         At Loisel's change of plea hearing, he denied that he had recently been diagnosed with any mental illness. ECF No. 32 at 10. Neither counsel for the Government nor Loisel's counsel doubted Loisel's competency to plead guilty. Id. I did not observe any basis to question Loisel's competency. Id. at 11. Loisel stated under oath that he understood the charges against him, the rights he was waiving by pleading guilty, and that if I accepted the parties' binding plea agreement, I would sentence him to 300 months' imprisonment. Id. at 14-18, 32. Loisel also stated he was knowingly and voluntarily waiving his appeal rights. Id. at 28-29.

         Prior to sentencing, Loisel's counsel filed a sentencing memorandum, in which he conceded he could not seek a downward departure or variance. ECF No. 26 at 2. Counsel attached to that memorandum a report by Dr. John Paglini, a licensed clinical psychologist. ECF No. 26 at 3, 8-21. Dr. Paglini concluded Loisel met the criteria for schizoid personality disorder. Id. at 15. The sentencing memorandum also pointed out several mitigating factors, including that Loisel had no criminal history, no history of substance abuse, and was remorseful. Id. at 4. I accepted the parties' plea agreement and sentenced Loisel to a term of 300 months' imprisonment. ECF Nos. 31 at 3; 33.

         Loisel raises four[1] grounds in his § 2255 motion: (1) counsel was ineffective for failing to raise a bona fide doubt as to Loisel's competency to enter a guilty plea, (2) the court should have sua sponte ordered a competency hearing, (3) counsel was ineffective for failing to move for a downward departure based on Loisel's schizoid personality disorder, and (4) counsel was ineffective for failing to file a notice of appeal as Loisel requested. Loisel also moves for appointment of counsel to assist him with filing an appeal.

         The Government responds that counsel cannot be ineffective for failing to raise meritless arguments, and Loisel's mental disorder does not suggest his plea was involuntary. The Government also notes the parties stipulated to a sentence of 300 months, which bound the court under Federal Rule of Criminal Procedure 11(c)(1)(C). Finally, the Government concedes that Loisel is entitled to file an appeal and it recommends that I vacate the original sentence and re-impose it, thus retriggering the 14-day appeal deadline.

         A. Competency Hearing

         “A defendant has a due process right not to be tried while incompetent.” Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011). “Competence is defined as the ability to understand the proceedings and to assist counsel in preparing a defense.” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (citing Dusky v. United States, 362 U.S. 402 (1960)); see also McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008) (stating that competency means the defendant had “an ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him” (quotation omitted)). The defendant must be competent throughout the proceedings, including sentencing. United States v. Dreyer, 705 F.3d 951, 961 (9th Cir. 2013).

         A district court has a statutory duty to “order . . . a [competency] hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). When all of the evidence before the court “raises a bona fide doubt about the defendant's competence to stand trial, a trial judge must sua sponte conduct an evidentiary hearing.” McMurtrey, 539 F.3d at 1118 (quotation omitted). “The record raises a question as to the defendant's competence if there is substantial evidence that, due to a mental disease or defect, the defendant is either unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Dreyer, 705 F.3d at 961 (quotation omitted). The court may consider factors such as the defendant's behavior; his past mental health history; whether he is taking medication; expert opinions; defense counsel's evaluation of his client; and the judge's own observations, including the defendant's ability to intelligently answer questions. See, e.g., Stanley, 633 F.3d at 860-61; McMurtrey, 539 F.3d at 1125-26.

         The “level of competency mandated by due process does not vary based on the specific stage of the criminal proceeding, ” but “the defendant's ability to participate or assist his counsel must be evaluated in light of the type of participation required.” Dreyer, 705 F.3d at 961. Thus, a “defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature and consequences of his plea.” de Kaplany, 540 F.2d at 985. Competence at sentencing requires that the defendant, “among other things, ” is “able to understand the nature of the proceedings and participate intelligently to the extent participation is called for, ” including his right to allocute. Dreyer, 705 F.3d at 961.

         Here, the record did not raise a bona fide doubt about Loisel's competence, either when he pleaded guilty or at sentencing. The record contains no evidence that Loisel acted in a manner that suggested he did not understand the nature of the proceedings or that he could not assist in his defense. He has no significant mental health history. ECF No. 26 at 14, 19. Although he had suicidal ideation when he was in middle school due to poor performance in school, he denied any suicidal thoughts later in life. Id. at 9-10, 14, 16. There is no evidence he has ever been prescribed medication, hospitalized, or treated for a mental health disorder.

         Dr. Paglini's diagnosis of schizoid personality disorder does not raise doubt about Loisel's competence. The diagnosis refers to Loisel's social detachment, but Dr. Paglini specifically mentioned that Loisel was not delusional, paranoid, or depressed, and there was “[n]o evidence of antisocial personality disorder or sociopathy.” Id. at 10-11, 15-16, 19-20. Dr. Paglini does not suggest Loisel is unable to understand the nature of the charges or to assist his attorneys. To the contrary, Dr. Paglini notes that Loisel explained why he committed the robberies and that he expressed remorse for his conduct. Id. at 13, 21.

         Moreover, my own observations of Loisel indicate that he was competent. At his change of plea hearing, Loisel responded appropriately to a number of questions I asked, including his age, his level of education, and his employment history. ECF No. 32 at 9-10. His counsel assured the court that Loisel was competent to plead guilty and that he understood the charges against him. Id. at 10, 14; see also Stanley, 633 F.3d at 861 (“Trial counsel's assurances to the court are relevant because a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.” (quotation omitted)). Loisel indicated he understood the charges against him, the nature of the rights he was waiving by pleading guilty, as well as the binding nature of the parties' plea agreement. ECF No. 32 at 12, 14-18. He stated his attorney had fully explained the plea agreement to him, and he affirmed that he was knowingly and voluntarily waiving his appeal rights. Id. at 20, 28-29. When asked if he had any questions, he responded he did not. Id. at 29. When I asked whether Loisel had any further questions before entering his plea, he took that opportunity to discuss something with his attorney. Id. at 34. His attorney then stated that his only question was related to a recommendation as to the facility where he would serve his sentence. Id. I explained that I could not ...


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