United States District Court, D. Nevada
ORDER GRANTING IN PART § 2255 MOTIONAND
GRANTINGMOTION TO APPOINT COUNSEL (ECF Nos. 34, 40)
P. GORDON UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
raises four 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.
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.
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).
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.
“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.
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
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.
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 ...