ORDER DISMISSING § 2255 MOTION WITH LEAVE TO AMEND
Re: Dkt. No. 411
PHYLLIS J. HAMILTON, District Judge.
Before the court is the motion of defendant Purvis Lamar Ellis, appearing pro se, for an order under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. For the reasons set forth below, defendant's § 2255 motion is DISMISSED WITH LEAVE TO AMEND pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255.
BACKGROUND
Mr. Ellis is currently serving a sentence imposed by this court. On December 19, 2013, Mr. Ellis was charged in the following counts of an eight-count indictment: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); Attempted Murder in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(5) and 2 (Count Two); Assault with a Dangerous Weapon/Resulting in Serious Bodily Injury in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(3) and 2 (Count Three); Maiming in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(2) and 2 (Count Four); and Use/Possession/Brandish/Discharge of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (Count Five).
Counsel for Mr. Ellis and his co-defendants jointly filed several pretrial motions, including motions for a bill of particulars; motion to dismiss, or, in the alternative, for a bill of particulars; motion for discovery and disclosure of FRE 404(b) evidence and disclosure of identity of confidential informant; motion for search and disclosure of electronic surveillance; motion to suppress pretrial and in-court identifications; motion to suppress evidence seized from search on residential curtilage; motion to suppress evidence from an apartment search and for a Franks hearing; motion to suppress evidence seized pursuant to arrest; and motion to suppress evidence seized from digital devices. After ruling on defendants' pretrial motions, the court referred the case to a United States Magistrate Judge for discovery disputes. Dkt. nos. 127, 143, 147. Defendants litigated several discovery matters before the Magistrate Judge, including disclosures about the use of cell-site simulators. See dkt. no. 215. Counsel for Mr. Ellis subsequently filed motions on behalf of all defendants to suppress evidence obtained from cell-site simulators and evidence seized during an apartment search, which the court denied by order entered August 24, 2017. Dkt. no. 337.
On September 21, 2017, Mr. Ellis entered a guilty plea to Counts One, Two and Five pursuant to a written plea agreement under Rule 11(c)(1)(A) and 11(c)(1)(C) of the Federal Rules of Criminal Procedure. On February 28, 2018, the court sentenced Mr. Ellis to a total term of 240 months of imprisonment, consisting of 120 months on Count One and Two, to be served concurrently, and 120 months on Count Five to be served consecutively to all other counts; 5 years of supervised release; and a $300 special assessment. Counts Three and Four were dismissed on the government's motion.
On August 19, 2019, Mr. Ellis filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence, asserting a claim of ineffective assistance of counsel for failing to file a notice of appeal at petitioner's request. Dkt. no. 411. Because Mr. Ellis was convicted of Count Five for use/possession/brandish/discharge of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A), the court notified the Office of the Federal Public Defender ("FPD") of his pro se § 2255 motion pursuant to Miscellaneous Order 2019.08.05, in which the court presumptively appointed the FPD to represent any defendant previously determined to have been entitled to appointment of counsel to determine whether that defendant may qualify for relief under § 2255 in light of the Supreme Court's holding in United States v. Davis, 139 S.Ct. 2319 (2019), that the residual clause defining a "crime of violence" in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. On September 9, 2019, the FPD filed a notice of non-intervention stating that it will not seek appointment to represent Mr. Ellis on any Davis claim, without taking a position on the merits of any potential Davis claim. Dkt. no. 414. Having been so notified by the FPD, the court proceeds with a preliminary review of the § 2255 motion.
DISCUSSION
I. Legal Standard
Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside, or correct a sentence on the grounds that "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(a). A prisoner filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).
The Sixth Amendment right to counsel guarantees effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A successful claim of ineffective assistance has two components. First, a defendant must show that counsel's performance was deficient. Id. at 687. Deficient performance is representation that falls below an objective standard of reasonableness. Id. at 688. Second, having established deficient performance, the defendant must show he was prejudiced by counsel's errors; that is, there must be a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
In order to demonstrate deficient performance, a habeas petitioner is required to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. The relevant query is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.
II. Initial Review of Section 2255 Motion
The court conducts an initial review of this motion to determine whether it presents a cognizable claim for relief and requires a response by the government. A district court must summarily dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
The § 2255 motion alleges that counsel was ineffective in failing to file an appeal at his request. Mr. Ellis offers the following facts in support of that claim: "After sentencing on February 28, 2018, Petitioner had requested counsel to file a notice of appeal. Counsel failed to file the appeal." Dkt. no. 411. Mr. Ellis also indicates "no appeal filed — plea waiver of appeal rights." The court construes this statement to refer to the express waiver provision of the plea agreement agreeing to "give up my right to appeal my conviction, the judgment, and orders of the Court, as well as any aspect of my sentence, . . . except that I reserve my right to claim that my counsel was ineffective." Dkt. no. 352 ¶ 4.
Under Ninth Circuit authority, an appeal waiver contained in a plea agreement is enforceable if "the language of the waiver encompasses [the defendant's] right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made." United States v. Torres, 828 F.3d 1113, 1124 (9th Cir. 2016) (citation and marks omitted). Mr. Ellis does not allege that his entry into the plea agreement was not knowing or voluntary, nor does he challenge the sufficiency of the plea colloquy, to show that the appeal waiver was not knowing, voluntary, and intelligent. See United States v. Pollard, 850 F.3d 1038, 1043 (9th Cir.), cert. denied, 138 S.Ct. 568 (2017).
The Supreme Court has held that a written plea agreement waiving the right to appeal the sentence does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. Class v. United States, 138 S.Ct. 798, 804-05 (2018). See also Pollard, 850 F.3d at 1043 (recognizing that an appeal waiver cannot bar a constitutional challenge). Here, Mr. Ellis has not asserted any constitutional challenge to his sentence that he would have raised on appeal. Without an allegation of the grounds he would have raised on appeal to challenge his conviction and sentence, Mr. Ellis fails to allege either that his counsel's performance was deficient or that he was prejudiced by his counsel's alleged errors, as required to establish a cognizable claim of ineffective assistance of counsel.
Though the allegations of ineffective assistance of counsel are merely conclusory, amendment of the § 2255 motion does not appear futile. Accordingly, the court dismisses the § 2255 motion without prejudice and grants Mr. Ellis leave to file an amended § 2255 motion that specifies with particularity "all the grounds for relief available" and to "state the facts supporting each ground." Rule 2(c), Rules Governing Section 2255 Proceedings for the United States District Courts. See Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013) (citing Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam) ("[A] petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted.")). As a point of clarification, the court notifies Mr. Ellis that asserting a claim of ineffective assistance of counsel effectively waives his attorney-client privilege as to his communications with his attorneys that are relevant to his ineffective assistance claims. "In performing their constitutional duties, the federal courts have determined that claims of ineffective assistance of counsel cannot be fairly litigated unless the petitioner waives his [attorney-client] privilege for the purposes of resolving the dispute." Bittaker v. Woodford, 331 F.3d 715, 722 (9th Cir. 2003).
Mr. Ellis is hereby granted leave to amend his motion within thirty (30) days to include a cognizable claim for relief pursuant to § 2255. If he fails to amend or otherwise respond within thirty days of the date of this order, the court will issue a final order dismissing the current § 2255 motion with prejudice for failure to state a cognizable claim for relief.
IT IS SO ORDERED.
