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United States v. Granderson

United States District Court, D. Nevada

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES EARL GRANDERSON, JR., Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is defendant Charles Earl Granderson, Jr.'s (“Granderson”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 85. The United States filed an opposition to the motion (ECF No. 88) to which Granderson replied (ECF No. 90).

         I. Facts and Procedural Background

         On April 29, 2015, Granderson was indicted on two charges: (1) interference with commerce by robbery in violation of 18 U.S.C. § 1951 (“Hobbs Act robbery”); and (2) brandishing a firearm during a robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ECF No. 1. Granderson filed a motion to suppress (ECF No. 35) which was denied by the court after an evidentiary hearing (ECF No. 54).

         On April 5, 2016, Granderson pled guilty to both counts of the indictment without the benefit of a plea agreement. ECF No. 59. He was subsequently sentenced to one hundred and twenty-five (125) months incarceration. ECF No. 67. Granderson appealed his sentence to the Ninth Circuit (ECF No. 68) but his appeal was dismissed on the basis of Granderson's unconditional guilty plea (ECF No. 81). Subsequently, on November 9, 2017, Granderson filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 85.

         II. Discussion

         Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 41.3b (5th ed. 2005).

         In his motion to vacate, Granderson raises three separate challenges to his conviction and sentence: (1) that his unconditional guilty plea was not knowing and voluntary; (2) that both his trial and appellate counsel were constitutionally ineffective; and (3) that Hobbs Act robbery does not qualify as a crime of violence for purposes of 18 U.S.C. § 924(c). ECF No. 85. The court shall address each challenge below.

         A. Unconditional Plea

         In his motion, Granderson contends that his unconditional guilty plea was not made knowingly or voluntary. Granderson raised this exact same argument on direct appeal which was rejected by the Ninth Circuit. Claims raised and disposed of during a previous direct appeal are not reviewable in a subsequent Section 2255 proceeding. See e.g., United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (“When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as a basis for a subsequent § 2255 petition.”); Hammond v. United States, 408 F.2d 481, 483 (9th Cir. 1969) (“Section 2255 may not be invoked to relitigate questions which were or should have been raised on direct appeal from the judgment of conviction.”). Therefore, the court shall deny Granderson's motion as to this challenge.

         B. Ineffective Assistance of Counsel

         The Sixth Amendment to the Constitution provides that a criminal defendant “shall enjoy the right to have the assistance of counsel for his defense.” U.S. Const. Amend. VI. Thus, a criminal defendant is entitled to reasonable effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).

         To establish ineffective assistance of counsel, a petitioner must show that his or her counsel's performance was deficient, and that petitioner was prejudiced as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel's performance was deficient, the court must examine counsel's overall performance and must be highly deferential to the attorney's judgments. United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (citing Strickland, 466 U.S. at 688-89) (internal quotations omitted). Thus, to establish deficient performance under Strickland, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. If a petitioner establishes that counsel's performance was deficient, the petitioner “must then establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Quintero-Barraza, 78 F.3d at 1348. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id.

         In his motion, Granderson contends that both his trial and appellate counsel were constitutionally ineffective. The court has reviewed the documents and pleadings on file in this matter and finds that Granderson's arguments are without merit. As to his trial counsel, Granderson's claim of ineffective assistance fails to allege either deficient performance or prejudice. Granderson's only allegation relating to his trial counsel is that counsel “poorly inform[ed] [Granderson] of his plea agreement rights.” However, ...


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