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Abell v. United States

United States District Court, D. Nevada

November 13, 2019

JOHN ABELL, Petitioner,



         Pending before the Court is Petitioner John Abell's (“Petitioner's”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF No. 141). Respondent United States of America (“the Government”) filed a Response, (ECF No. 150), and Petitioner filed a Reply, (ECF No. 151). Also pending before the Court is Petitioner's Ex Parte Motion for Appointment of Counsel, (ECF No. 143), to which Petitioner filed a Supplement, (ECF No. 149). For the reasons discussed below, the Court DENIES Petitioner's 2255 Motion and DENIES Petitioners Ex Parte Motion for Appointment of Counsel.[1]

         I. BACKGROUND

         On September 28, 2011, a grand jury indicted Petitioner with Attempted Coercion and Enticement of a Minor in violation of 18 U.S.C. § 2422(b). The Government sought to prove that Petitioner used on-line communications to persuade a 13-year-old girl named Tina, who was undercover officer Taun Yurek, to meet him for sex. (Tr. Tran. at 30-31, ECF No. 126).

         Trial began on May 21, 2013, but the jury dead-locked after deliberating. The Court thus declared a mistrial. (Mins. Proceedings, ECF No. 70). The Government re-tried Petitioner, and a jury returned a guilty verdict on September 13, 2013. (Jury Verdict, ECF No. 98). The Court then sentenced Petitioner to 120 months imprisonment, twenty years of supervised release to follow, $100 in special assessments, and a fine of $12, 500. (J., ECF No. 114).

         Petitioner appealed the jury's verdict and his sentence on April 3, 2014, to the Ninth Circuit Court of Appeals. (Not. Appeal, ECF No. 116). In an unpublished Memorandum, the Circuit affirmed Petitioner's conviction and sentence, though it mentioned that, “to the extent [Petitioner] may have a colorable claim [for ineffective assistance of counsel under 28 U.S.C. § 2255], he may pursue it on petition for habeas corpus and a properly developed evidentiary record.” (Mem. at 4, ECF No. 136). Petitioner thereafter filed his 2255 Motion with this Court, asserting six grounds for habeas relief.


         Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). Motions pursuant to § 2255 must be filed within one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).


         Petitioner's six grounds for habeas relief fall into three categories. The first category contains claims for ineffective assistance of trial counsel. (2255 Motion at 5-9, ECF No. 141). The second category relates to the Government allegedly withholding evidence. (Id. at 6). Last is Petitioner's argument that his sentence violates the Eighth Amendment's prohibition of cruel and unusual punishment. (Id. at 10). The below discussion addresses each category in turn.

         A. Ineffective Assistance of Counsel

         To establish ineffective assistance of counsel, a petitioner must first show that his counsel's conduct was not “within the range of competence demanded of attorneys in criminal cases.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, a petitioner must show that he was prejudiced by his counsel's deficient performance. See id. at 692. Under this analysis, the question is whether “counsel's representation fell below an objective standard of reasonableness”; and the Court's inquiry begins with a “strong presumption that counsel's conduct [falls] within the wide range of reasonable representation.” United States v. Ferreira- Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987) (as amended). “[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.” Harrington v. Richter, 562 U.S. 86, 105 (2011). “The benchmark for judging any claim of ineffectiveness must be whether counsel's actions so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

         1. Plea Agreement

         Petitioner's several claims based on ineffective assistance of counsel begin with the allegation that his trial counsel failed to adequately explain the terms and potential sentence associated with a plea deal offered by the Government. (2255 Motion at 5). Petitioner states the proposed deal was that he would plead guilty to perjury; and if he did, his other charge “would be dropped.” (Id.). Petitioner complains that his trial counsel did not provide ...

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