ORDER RE SECTION 2255 PETITION

SHARON L. GLEASON, District Judge.

Before the Court at Docket 48 is Defendant Antonio D. Washington's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed on July 3, 2017.1 The Government responded at Docket 69; Defendant's reply was filed thereafter at Docket 71. Oral argument was not requested and was not necessary to the Court's determination.

BACKGROUND

On December 16, 2015, a Grand Jury indicted Mr. Washington on two counts of Distribution of Methamphetamine (Counts One and Two), one count of Distribution of 50 Grams or More of Actual Methamphetamine (Count Three), and one count of Distribution of 5 Grams or More of Actual Methamphetamine (Count Four).2 On March 16, 2016, Mr. Washington pleaded guilty to Count Three.3 Mr. Washington waived most of his rights to collaterally attack the conviction, except he retained the right to assert that his plea was involuntary and that his trial counsel was ineffective.4 Count Three carried a minimum sentence of 120 months imprisonment and a maximum sentence of life imprisonment.5 On July 5, 2016, the Court sentenced Mr. Washington to 162 months on Count Three. The remaining counts were dismissed at that time.6 Mr. Washington timely filed this motion seeking relief on July 3, 2017.7

LEGAL STANDARD

1. Ineffective Assistance of Counsel

In order to succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, which requires him to show both deficient performance and prejudice.8 Deficient performance requires a showing that trial counsel's representation "fell below an objective standard of reasonableness" as measured by prevailing professional norms.9 There is a "strong presumption that counsel's conduct falls within the wide range of professional assistance."10 To establish prejudice, a petitioner must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different."11 "Where ineffective assistance leads a petitioner to accept a plea bargain, a different result means that `but for counsel's errors, [the petitioner] would either have gone to trial or received a better plea bargain."12 Failure to meet either prong is fatal to a petitioner's claim.13

2. Voluntariness of Plea

To determine the voluntariness of a plea, the Court considers "the totality of the circumstances."14 The plea must "represent[] a voluntary and intelligent choice among the alternative courses of action open to the defendant."15 A "guilty plea is void if it was `induced by promises or threats which deprive it of the character of a voluntary act.'"16

3. Evidentiary Hearing

"Unless the [§ 2255] motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."17 "In determining whether a hearing and findings of fact and conclusions of law are required, `[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.'"18 To "summarily dismiss a § 2255 motion," a court must find that "the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are `palpably incredible or patently frivolous.'"19

"Solemn declarations in open court carry a strong presumption of verity."20 In United States v. Espinoza,21 the Ninth Circuit held that although a court must hold an evidentiary hearing "when a prisoner's allegations of a coerced plea are based on alleged occurrences entirely outside the record,"22 a "court may expand the record with other documentary evidence prior to determining the need for an evidentiary hearing."23 "In Espinoza, [the Ninth Circuit] recognized the principle . . . that no evidentiary hearing is necessary when the issue of credibility can be `conclusively decided on the basis of documentary testimony and evidence in the record.'"24 Although Espinoza found the record in that case to be insufficient for summary dismissal of the § 2255 claim, "[s]ince Espinoza provides no description of this insufficient record, it cannot guide us as to what constitutes a `conclusive' record. Espinoza does instruct us that even where the record before the district court is insufficient, the court is not automatically required to conduct an evidentiary hearing."25

DISCUSSION

Mr. Washington seeks relief on two grounds. First, he claims that he received ineffective assistance of trial counsel.26 Second, he asserts that his guilty plea was involuntary.27 The Government argues these claims are "patently false."28

1. Ineffective Assistance of Counsel

Mr. Washington claims that his trial counsel was ineffective in two respects. First, he alleges that his trial counsel "ignored readily available information tending to indicate that [Mr. Washington] was under severe emotional duress after being assaulted by the arresting officers and another inmate at the jail, and that [Mr. Washington] was detoxing from narcotics: heroin, methamphetamines and cocaine."29 Second, Mr. Washington states that his "[c]ounsel proceeded to intentionally mislead [Mr. Washington] into a non-binding plea-agreement, resulting in a sentence of 42 months beyond the scope of the plea-agreement [Mr. Washington] believed he accepted."30 Mr. Washington alleges that his trial counsel had guaranteed that Mr. Washington would receive a 120-month sentence ("minimum sentence promise").

As a threshold matter, the Government points to Mr. Washington's waiver of most collateral attacks in the plea agreement.31 In his plea agreement, Mr. Washington retained his right to make an ineffective assistance challenge "based on information not now known to the defendant and which, in the exercise of reasonable diligence, could not be known by the defendant at the time the Court imposes [the] sentence . . . ."32 Mr. Washington does not specify the date of the alleged assault(s), but Mr. Washington's reference to an "arresting officer"33 suggests that an assault(s) may have occurred at the time of his December 2015 arrest.34 Mr. Washington signed his plea agreement on March 15, 2016.35 His change of plea hearing took place nearly two weeks later, on March 28, 2016.36 Over three more months passed before Mr. Washington's July 6, 2016 sentencing hearing.37 Although Mr. Washington alleges that his trial counsel continued his minimum-sentence assurances through the sentencing hearing, Mr. Washington's trial counsel had allegedly been making those assurances for months, beginning in March 2016.38 Similarly, the alleged assault(s) and detoxification were known to Mr. Washington for several months in advance of sentencing.39 These allegations fail because they were "known by the defendant at the time the Court impose[d the] sentence."40 Nevertheless, the Court addresses the merits of Mr. Washington's allegations below.

a. Emotional distress allegation

First, Mr. Washington alleges that his trial counsel "ignored readily available information tending to indicate that [Mr. Washington] was under severe emotional duress after being assaulted by the arresting officers and another inmate at the jail, and that [Mr. Washington] was detoxing from narcotics: heroin, methamphetamines and cocaine."41 He provides no dates for the alleged assault(s) or detoxification;42 however, he had been in custody since December 2015.43 Mr. Washington alleges his trial counsel "advised [him] that the US Attorney's Office had offered a sentence of `no more than 120 months,' for only a short period of time (3/11/16 — 3/16/16) . . . ."44 At the time that trial counsel "brought this plea-agreement to [Mr. Washington]," however, Mr. Washington alleges he "was being housed in the `Intensive Management Unit' of the Anchorage Jail, from 3/10/16 to 4/1/16; as a result of having been assaulted by the arresting officer and another prisoner, as well as detoxing from narcotics: heroin, methamphetamine and cocaine."45

Mr. Washington's June 26, 201746 declaration makes no reference to an alleged assault(s).47 Regarding the alleged assault(s), Mr. Washington's trial counsel asserts that "I have no idea what Mr. Washington is referring to here. I had no information that any such alleged assaults had occurred."48 Even if Mr. Washington was under some distress due to detoxification and an alleged assault(s) when he signed his plea agreement on March 15, 2016,49 another 13 days passed before his March 28, 2016 change of plea hearing.50 At this hearing, Mr. Washington stated that he was not under the influence of alcohol or drugs, his thinking was not impaired by any prescription medication, he was in a sufficient mental and emotional state to proceed with his plea, and no other issues affected his ability to change his plea.51 The Court finds that, "when viewed against the record," Mr. Washington's emotional distress claim is "`palpably incredible or patently frivolous.'"52 Accordingly, relief on this basis will be denied. An evidentiary hearing was not necessary to the Court's determination.

b. Minimum-sentence promise allegations

Second, Mr. Washington states that his "[c]ounsel proceeded to intentionally mislead [Mr. Washington] into a non-binding plea-agreement, resulting in a sentence of 42 months beyond the scope of the plea-agreement [that Mr. Washington] believed he accepted."53 After the issuance of the presentence report, trial "counsel again reassured [Mr. Washington] that he would receive a sentence of `no more than 120 months' based on the plea-agreement he allegedly negotiated with the US Attorney's Office."54 Mr. Washington claims that, at sentencing, trial counsel again "stated that he, `would take care of it,' again assuring [Mr. Washington] that he should have received the 120 months sentence according to plea-agreement he advised [Mr. Washington] to sign."55 Mr. Washington also asserts in the declaration, but not in the appendix to his motion, that at sentencing he "stood up and stated [his] objection" to a 162-month sentence.56

In his reply to the Government's opposition, Mr. Washington states that the Government's submission with its brief of a declaration by Mr. Washington's trial counsel "would seem to be a concession by the government that movant has made a prima facie case of trial counsel's deficient performance and a prima [facie] case of prejudice, in which case an evidentiary hearing is required."57 Mr. Washington concedes that his trial counsel "did an excellent job" in avoiding the career offender designation, but he argues that "the fact trial counsel had to work as hard as he did to get back to even . . . renders it more than likely he was taken . . . aback that [the career offender guidelines] might apply in the first place."58

The plea agreement does not state that the parties agreed on a 10-year sentence. To the contrary, the parties' agreement clearly sets forth "[t]he statutory penalties applicable to the charge to which [Mr. Washington] is pleading guilty," including "[a] mandatory minimum sentence of 10 years up to life imprisonment."59 The "parties [were] free to recommend to the Court their respective positions on the appropriate sentence to be imposed. . . ."60 Later in the agreement, Mr. Washington affirmed his "understand[ing] that no one, including my attorney, can guarantee the outcome of my case or what sentence the Court may impose if I plead guilty."61 He also acknowledged that "[t]here are no other promises, assurances, or agreements the United States has made or entered into with me that have affected my decision to enter any plea of guilty or to enter into this agreement."62

During the plea colloquy, Mr. Washington confirmed with the Court that he had "been able to talk to [his] lawyer, Mr. Wells, about the charge — all these charges against [him.]"63 When asked if his trial counsel was "aware of all the facts that would be important to defend [him] against the charges," Mr. Washington replied, "Yes, I guess so."64 The Court asked whether Mr. Washington's trial counsel had "answered any questions that [Mr. Washington had] asked."65 Mr. Washington said, "Yes, ma'am."66 And when asked if he was "satisfied with the legal representation and advice that [he had] received from [his trial counsel,]" Mr. Washington replied, "Yes, I am."67 Mr. Washington's trial counsel confirmed that he and Mr. Washington had "gone through every page and every word in this plea agreement,"68 and Mr. Washington confirmed that he had "read through every page of" it.69 The Court then confirmed that it "did not see other terms regarding agreements for sentencing. So essentially, open sentencing."70 The Court expressly confirmed with Mr. Washington that he understood that he faced a sentencing range "of ten years, up to a term of life imprisonment."71 Mr. Washington, when asked whether he had spoken to his attorney about the Guidelines, responded, "I've done a lot of research on my own, so I'm well aware of what's going on."72 The Court subsequently asked trial counsel whether he had "been able to talk some with Mr. Washington about the guidelines, as well?," to which trial counsel responded, "Absolutely."73 Mr. Washington had no questions about the § 3553(a) factors.74 The Court then asked Mr. Washington if "anyone [had] promised or guaranteed [him] anything that's not in this plea agreement to get [him] to change [his] plea," to which Mr. Washington responded in the negative.75

Mr. Washington's trial counsel has filed a declaration attesting that he "never told Mr. Washington that he would only be sentenced to 10 years."76 Nor, he says, did he ever tell "Mr. Washington that the government had agreed to recommend only 10 years. Before he entered his guilty plea, Mr. Washington was well aware . . . that the court . . . could sentence him to more than 10 years."77

The Revised Presentence Investigation Report lists Count Three as having a sentencing range of: "Minimum ten years imprisonment, maximum life imprisonment."78 At sentencing, the Court asked Mr. Washington and his trial counsel whether they had "both had the opportunity to look at the presentence report and read that through?"79 Trial counsel responded, "Yes."80 When the Court sought to confirm with Mr. Washington that he had read the presentence report, Mr. Washington's response was not audible.81 However, the Court responded, "All right,"82 which suggests that Mr. Washington had answered in the affirmative. The Court later addressed Mr. Washington, "[I]t's your turn, sir. If you had anything you wanted to say, today's the day and the time to say it, so go right ahead."83 Mr. Washington said that he would "like to take responsibility for the crime and events, Your Honor."84 He later repeated, "I want to apologize for my behalf and take responsibility."85 Mr. Washington never asserted that he had ever understood that the Government had agreed he would receive a 120-month sentence.86 The sentencing transcript does not reflect Mr. Washington's alleged standing up in court to object to his 162-month sentence.87 Rather, that transcript reveals that Mr. Washington's trial counsel was an exemplary advocate on his client's behalf.88

Mr. Washington's factual claim highlights the Ninth Circuit's holdings that "[s]olemn declarations in open court carry a strong presumption of verity,"89 and that a "court may expand the record with other documentary evidence prior to determining the need for an evidentiary hearing."90 No evidence from 2016 supports Mr. Washington's recent sworn assertion that there was a 120-month minimum-sentence guarantee. Every other statement in the record refutes his claim. His trial counsel's declaration refutes his claim.91 The sentencing transcript refutes his claim.92 Based on the foregoing, Mr. Washington's minimum-sentence promise claim, first raised in June 2017, nearly one year after sentencing, is "`palpably incredible or patently frivolous.'"93 No evidentiary hearing is warranted on this claim. Because Mr. Washington's deficiency allegation fails, the Court declines to consider his prejudice allegation.94 Accordingly, relief on this basis will be denied.

2. Voluntariness of Plea

Mr. Washington asserts that he entered "into a plea-agreement that was non-binding at a time when [he] was under severe [emotional] duress from being assaulted by the arresting officer and another prisoner, and detoxing from narcotics: heroin, methamphetamine and cocaine."95 Mr. Washington provides no specific information in either his motion or his declaration that would support these claims.96 For much the same reasoning that the Court has denied the ineffective assistance claim, and upon review of the entire record, particularly the transcripts of the change of plea and sentencing hearings,97 the Court finds the involuntary plea claim to be "`palpably incredible or patently frivolous.'"98

CONCLUSION

In light of the foregoing, IT IS ORDERED that Mr. Washington's Motion at Docket 48 is hereby DENIED.

The Court further finds that Mr. Washington has not made the requisite substantial showing of the denial of a constitutional right, and therefore a certificate of appealability will not be issued by this Court.99 Mr. Washington may request a certificate of appealability from the Ninth Circuit Court of Appeals.

The Clerk of Court is directed to enter a final judgment accordingly.