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United States v. Tillman

United States District Court, D. Nevada

June 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARKETTE TILLMAN, Defendant.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE

         There are two motions pending before the Court. First is Markette Tillman's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (#1098). The government timely responded (#1138), and Tillman replied (#1139). Before the Court could decide Tillman's motion to vacate, he moved to amend that motion (#1140). The Court performed an initial review of Tillman's motion to vacate and his motion to amend in late 2018. Following that review, the Court waived the attorney-client privilege between Tillman and his trial counsel, Lance Maningo and James Oronoz. That order directed the attorneys to provide the government with affidavits addressing Tillman's claims, which they did (#1185). The Court also ordered the government to respond to Tillman's motion to amend and to supplement its initial opposition, which it did (##1186, 1187). Tillman has not replied.

         Tillman's initial § 2255 petition brought four causes of action. Three are claims of ineffective assistance of counsel leading up to his trial for charges under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The other is a claim for a violation of Tillman's Sixth Amendment right to the counsel. Tillman seeks to add another ineffective assistance of counsel claim arising out of his attorneys' performance at his sentencing. The parties agree that Tillman's new claim is untimely. His motion to amend therefore turns on whether his new ineffective assistance of counsel claim relates back to his initial claims even though the claim arises out of an entirely different stage in the proceeding than the others. If it does not relate back, Tillman's new claim is time-barred. Tillman's motion to vacate, on the other hand, turns on whether he received ineffective assistance of counsel and whether he knowingly and voluntarily entered into a plea agreement that waived certain appellate rights. As for Tillman's motion to amend, the Court finds that Tillman's new claim arises out of facts that differ in both time and type from the claims in his initial petition. The new claim, therefore, does not relate back. The Court further finds that Tillman has not shown that his trial counsel was constitutionally deficient, and to the extent that Tillman's petition attacks the waiver of his appellate rights, that waiver was knowing and voluntary. Accordingly, the Court denies Tillman's motion to vacate his sentence.

         I. Background

         On January 20, 2004, security guard Brian Wilcox was shot and killed while patrolling “the Jets, ” a housing complex in Las Vegas, Nevada. In the fall of 2008, Markette Tillman and nine others were indicted for the murder and various conspiracy and drug charges under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). See Indictment 2-3, 10, ECF No. 1. The indictment identifies a street gang called the “Playboy Bloods” as the criminal organization under RICO. Id at 2, 27. It alleges that the gang operated an extensive drug ring and engaged in acts of violence to further that enterprise. Id at 3-4. The government brought additional charges against Tillman via a superseding indictment in 2012. Superseding Indictment, ECF No. 650. In all, Tillman faced nineteen charges arising out of his involvement with the Playboy Bloods including conspiracy to engage in an illicit organization, various drug charges, and the use of a firearm during a crime of violence resulting in Wilcox's murder. Id

         The RICO-murder charge against Tillman made this a capital case, which qualified Tillman for learned counsel. Judge Robert Jones, who was originally assigned to this case, appointed California attorney, John Grele, as learned counsel on Tillman's behalf. Order Appointing Counsel, ECF No. 123. Although the government ultimately did not pursue the death penalty against Tillman, Grele continued to represent him until February of 2013 when a dispute arose over delayed payment of Grele's CJA vouchers. Order of Disappointment, ECF No. 807. Judge Jones held a hearing to resolve the dispute over the vouchers. Following that hearing, Judge Jones issued a written order that accused Grele of “extort[ing] the court by delay” and “attempting to manufacture an ineffective assistance of counsel claim on [Tillman's] behalf.” The Judge then disappointed Grele over Tillman's objections and appointed Lance Maningo and James Oronoz in Grele's place. Id

         Tillman rejected various plea offers while Maningo and Oronoz represented him, opting instead to go to trial as quickly as possible. Mot. to Vacate 7-7B, ECF No. 1098. At issue here is an agreement that would have carried an eighteen-year sentence. Id Tillman claims that he rejected that plea deal because he believed he could clear his name of the murder charge at trial. Id at 7B. After opening statements, however, Tillman had a change of heart and entered into a plea agreement. Tillman agreed to plead guilty to two of the nineteen counts of the indictment and waived his appellate rights except for the unwaivable right to appeal ineffective assistance of counsel. Plea Agreement 2-3, ECF No. 1018. In exchange, the government recommended a twenty-three-year sentence. Id at 11. The Court accepted the agreement and sentenced Tillman to twenty-three years. Judgment of Conviction 2, ECF No. 1046.

         Shortly after sentencing, Tillman appealed his conviction to the Ninth Circuit. The Ninth Circuit dismissed the appeal, citing the valid appeal waiver in Tillman's plea agreement. Order Dismissing Appeal, ECF No. 1073. Having lost his appeal, Tillman now moves to set aside his conviction under 28 U.S.C. § 2255, claiming that the Court violated his Sixth Amendment right to counsel when it dismissed attorney John Grele against Tillman's wishes. Relatedly, Tillman argues that Maningo and Oronoz provided constitutionally deficient counsel.

         II. Legal Standard

         28 U.S.C. § 2255 allows a custodial defendant to challenge his conviction on the grounds that it “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Each of Tillman's claims arise out of his Sixth Amendment right to counsel, which guarantees effective assistance of counsel at all “critical stages of a criminal proceeding.” Lafler v. Cooper, 566 U.S. 156, 165 (2012). A defendant's right to counsel is violated where he is deprived of counsel entirely or where his counsel's performance was constitutionally defective. Strickland v. Washington, 466 U.S. 668, 686 (1984). To demonstrate that counsel was constitutionally inadequate, the defendant must show two things: (1) that counsel's representation “fell below an objective standard of reasonableness;” and (2) that the defendant suffered prejudice as a result. Id; Lee v. United States, 137 S.Ct. 1958, 1964 (2017). In essence, Tillman must demonstrate that his trial counsel made errors so serious that his conviction is not reliable. Strickland, 466 U.S. at 687.

         Section 2255 requires an evidentiary hearing unless the record “conclusively show[s] that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). If the petition is based upon conduct that happened outside the courtroom and off the record, the Court must hold an evidentiary hearing. Burrows, 872 F.2d at 917. However, the Court may summarily dismiss the petition if the movant does not state a claim for relief or if his claims are frivolous or palpably incredible. Id. citing Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Finally, because the Court presided over Tillman's trial, it may supplement the record with its own recollection of the disputed events and summarily dismiss the petition. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).

         III. Analysis

         Tillman's motion to vacate alleges four constitutional deprivations that he claims warrant overturning his conviction. There are three ineffective assistance of counsel claims and one claim for a violation of his Sixth Amendment right to counsel. Each claim arises out of Tillman's representation leading up to trial and his change of plea. Tillman also seeks leave to amend his petition to add another ineffective assistance of counsel claim stemming from of his representation at sentencing. The Court turns first to Tillman's motion to amend.

         A. Motion to Amend

         Tillman's new claim alleges that he received ineffective assistance of counsel at sentencing because his attorneys did not request that Tillman receive credit for time served in state custody. Tillman's claim is untimely. Section 2255 imposes a one-year limitations period on petitions to vacate a sentence. 28 U.S.C. § 2255(f). That one-year period began on the date Tillman's judgment of conviction became final. Id § 2255(f)(1). Here, the clock started on May 18, 2015, when the Ninth Circuit dismissed Tillman's appeal. Order of Dismissal, ECF No. 1065. Tillman did not bring his additional claim until February 28, 2017-well outside the statutory period to do so.

         Tillman does not dispute that the claim is untimely. Rather, he argues that amendment is appropriate because the claim relates back to the events in his original petition, which was timely. A petitioner may amend its petition once as a matter of course prior to a responsive pleading. Fed.R.Civ.P. 15(a); Mayle v. Felix, 545 U.S. 644, 655 (2005). Once the government has responded, however, the movant may only amend with the government's consent or with the Court's permission. Mayle, 545 U.S. at 663-64. When, as here, the movant is no longer eligible to amend as a matter of course, the Court applies the Federal Rules of Civil Procedure to determine whether the proposed amendment is appropriate. See Rules Governing § 2255 Proceedings, R. 12, 28 U.S.C. § 2255 (applying the Federal Rules of Civil Procedure to § 2255 proceedings). Whether amendment is ...


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