United States District Court, D. Nevada
ORDER DENYING MOTION TO VACATE SENTENCE [ECF NO.
P. GORDON UNITED STATES DISTRICT JUDGE.
Defendant Deondre Williams moves to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. He contends
a study regarding “stash house” cases in the
Northern District of Illinois (Fagan study) constitutes new
evidence demonstrating that the government's actions were
outrageous. He also contends his counsel was ineffective
because counsel intentionally misled Williams and coerced him
into pleading guilty by advising him his co-defendant was
planning to testify at trial. Because Williams is
procedurally barred from challenging his sentence and waived
his right to bring his challenge, I deny his motion.
is foreclosed from challenging his sentence except for
non-waivable claims of ineffective assistance of counsel. He
signed a plea agreement in which he waived his right to
challenge his sentence. ECF No. 73. The right to collaterally
challenge a conviction or sentence is statutory, and a
knowing and voluntary waiver of a statutory right is
enforceable. United States v. Abarca, 985 F.2d 1012,
1014 (9th Cir. 1993).
aside his express waiver, Williams is procedurally barred
from challenging his sentence. Motions under § 2255 must
comply with the statutory one-year deadline, which generally
runs from the date the judgment of conviction becomes final.
28 U.S.C. § 2255(f). Judgment in this case was entered
on July 9, 2015. ECF No. 95. Because he did not file a direct
appeal within fourteen days, Williams' initial filing
deadline was July 24, 2016. Williams filed this motion on
September 21, 2017. Williams argues his motion is timely
under § 2255(f)(2) or § 2255(f)(4) because of (1) a
lockdown at his facility, and (2) the publication of the
Fagan study on September 23, 2016.
§ 2255(f)(2), the limitation period begins to run from
“the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed.”
Although Williams appears to argue that the lockdown at his
facility tolled the limitation period, he also states he is
not asserting “any bad faith or illegality with respect
to the lockdown.” ECF No. 137 at 2. Moreover, his
motion was still filed more than a year after the lockdown
ceased. Thus, Williams has not shown that the lockdown tolled
the limitation period.
also contends that the limitation period began to run from
the publication of the Fagan study on September 23, 2016.
Under § 2255(f)(4), the limitation period begins to run
from “the date on which the facts supporting the claim
or claims presented could have been discovered through the
exercise of due diligence.” Williams argues the study,
finding a pattern of racially selective enforcement of stash
house defendants in the Northern District of Illinois from
2006-2013, constitutes “new facts” that tolled
the limitation period.
Williams does not argue the study's publication has any
bearing on his ineffective assistance of counsel claim.
Second, Williams does not allege any new facts regarding his
case. Instead, he argues the Fagan study's finding of
selective enforcement in the Northern District of Illinois
means it is likely his own arrest was similarly tainted.
However, Williams points to no newly discovered facts about
the events leading up to his arrest that could not have been
previously discovered with due diligence. The study instead
alerted Williams to a legal theory he failed to pursue
earlier in his case or on direct appeal. Thus, Williams has
not shown that his motion is timely.
setting aside his waiver and procedural default, Williams has
not shown he can surmount § 2255's substantive
requirements. After a defendant exhausts or forgoes his
direct appeal, his ability to challenge his sentence under
§ 2255 is severely limited. Williams must show that his
sentence is unconstitutional-establishing that a mistake was
made is not enough. Hamilton v. United States, 67
F.3d 761, 763 (9th Cir. 1995) (holding that a § 2255
challenge can be based only on claims of lack of
jurisdiction, constitutional error, an error resulting in a
“complete miscarriage of justice, ” or “a
proceeding inconsistent with the rudimentary demands of fair
prevail on an equal protection claim under the Fourteenth
Amendment, a plaintiff must demonstrate that enforcement had
a discriminatory effect and the police were motivated by a
discriminatory purpose.” Lacey v. Maricopa
Cty., 693 F.3d 896, 920 (9th Cir. 2012) (quotation
omitted). To meet the “demanding” standard for
proving discriminatory effect, “the claimant must show
that similarly situated individuals . . . were not
prosecuted.” Id. To show discriminatory
intent, the claimant must show “the government
undertook a particular course of action at least in part
because of, not merely in spite of its adverse effects upon
an identifiable group.” United States v.
Turner, 104 F.3d 1180, 1184 (9th Cir. 1997) (quotation
omitted). To obtain discovery or an evidentiary hearing,
Williams must produce “some evidence that similarly
situated defendants of other races could have been
prosecuted, but were not.” Id. (quotation
has not shown how the Fagan study, with data specific to the
Northern District of Illinois, provides some evidence that
similarly situated defendants in this district could have
been prosecuted in stash house reverse stings but were not.
Nor has he argued or shown that the government acted with
discriminatory intent. Therefore, Williams has not shown any
evidence that he was the victim of selective enforcement.
to prevail on a claim of ineffective assistance of counsel,
Williams must show both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
I “must apply a strong presumption that counsel's
representation was within the wide range of reasonable
professional assistance, ” and Williams must show that
his “counsel made errors so serious that counsel was
not functioning as the counsel guaranteed the defendant by
the Sixth Amendment.” Harrington v. Richter,
562 U.S. 86, 104 (2011) (citations and quotations omitted).
“[T]he standard for judging counsel's
representation is a most deferential one” because
“the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with the
client, with opposing counsel, and with the judge.”
Id. at 105. “A reasonable tactical choice
based on adequate inquiry is immune from attack . . .
.” Gerlaugh v. Stewart, 129 F.3d 1027, 1033
(9th Cir. 1997); see also United States v.
Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1996).
arguments fail on both the performance and prejudice prongs:
he has not shown that his counsel was deficient, and he has
not explained how any alleged deficiency prejudiced him.
Williams claims his counsel intentionally misled him and
coerced him into pleading guilty by advising him his
co-defendant was intending to testify at trial. Williams
provides no explanation of his claim that he was
intentionally misled as to the likelihood of his co-defendant
testifying, and he presents no evidence showing his
counsel's prediction was incorrect. Moreover, the
correspondence between Williams and his counsel do not
support a finding of coercion. While making clear that a
guilty plea would be his advised strategy, Williams'
counsel repeatedly stressed that the choice whether to plead
was Williams' alone. See ECF No. 153-1 at 12-14.
Disagreement “with trial counsel's tactical
decision cannot form the basis for a claim of ineffective
assistance of counsel.” Wildman v. Johnson,
261 F.3d 832, 839 (9th Cir. 2001).
Williams does not explain how he was prejudiced by his
counsel's advice. He takes issue with his “long
prison term, ” but received 70 months in comparison to
a possible 28 years had he gone to trial. See ECF
No. 153-1 at 14. Williams has not shown a reasonable
probability that, but for his counsel's advice, the
result of his plea negotiations or trial would have been
different. See United States v. McMullen, 98 F.3d
1155, 1157 (9th Cir. 1996).
Williams waived his right to challenge his sentence except as
to ineffective assistance of counsel claims, is procedurally
barred from bringing his claims under § 2255, and even
if he could ...