RICHARD SEEBORG, District Judge.
Federal prisoner Alik Ilyin moves to vacate his sentence under 28 U.S.C. § 2255. His petition asserted initially three distinct claims for ineffective assistance of counsel; namely, that his attorneys acquiesced to a violation of his rights under the Speedy Trial Act, failed to pursue an outrageous government conduct claim, and failed to inform the court about a post-sentencing prison attack. In his plea agreement with the government, however, Ilyin expressly waived his right to bring claims for putative constitutional injuries unrelated to the entry of his guilty plea.
Thus, after requesting and receiving three extensions of the deadline to reply to the government's opposition brief—which raises pointedly the waiver—Ilyin moved to amend his original § 2255 petition. Ilyin now asserts two additional claims for ineffective assistance of counsel on the theory his plea was neither knowingly nor voluntarily entered. Ilyin contends his attorney did not explain adequately the meaning of the collateral appeal waiver, and maintains he was under the influence of methamphetamine when his plea was taken. Ilyin's added claims effectively are futile. In recognition of his status as a pro se litigant, however, his request to amend will be granted.
On the merits, the recent claims must be denied as untimely because the grounds that Ilyin asserts do not relate back to the grounds of his initial § 2255 petition. Even if they were not time-barred, however, the record evinces that they are baseless. Ilyin's original three claims fall squarely within the teeth of the collateral appeal waiver, and setting that aside once again, they nevertheless are devoid of substantive merit. In sum, Ilyin fails to articulate any colorable theory under which he might be entitled to § 2255 relief. His motion to vacate his sentence is therefore denied.
On June 3, 2013, pursuant to a plea agreement with the government, Ilyin pled guilty in this court to one count of distribution of 5 grams or more of methamphetamine and one count of possession with intent to distribute 50 grams or more of methamphetamine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(viii). After he was sentenced to a 120-month term of imprisonment, Ilyin filed a direct appeal with the Ninth Circuit. On March 10, 2014, he elected voluntarily to dismiss that appeal and, on November 17, 2014, he filed the instant motion for § 2255 relief. After requesting and receiving three extensions of the deadline to reply to the government's opposition, on October 1, 2015, Ilyin moved to amend his petition. Ilyin did not elect to file a reply in support of his original petition.
As the claims alleged in Ilyin's motion to amend question the constitutional footing of his guilty plea, it is best to begin by addressing the propriety of those allegations.
As a preliminary matter, Ilyin's submission raises the question of whether the October filing should be treated as a motion to amend or a "second or successive" petition.
Federal Rule of Civil Procedure 15(a) "applies to habeas corpus actions with the same force that it applies to garden-variety civil cases." James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000) (quotation marks and citation omitted). Under that rule, when a party seeks leave to amend a pleading, "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Denial of a motion for leave to amend a pleading is proper only when "there is strong evidence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment, etc." Sonoma Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (internal quotation marks and alterations omitted).
If leave to amend is appropriate under Rule 15(a), the Court next must assess whether the amended claims are timely under the applicable statute of limitations. Federal Rule of Procedure 15(c) governs the timeliness of a motion to amend submitted after the AEDPA's statute of limitations has expired. See Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). Under Rule 15(c), an amendment is timely if it "relates back" to the original habeas motion. Fed. R. Civ. P. 15(c)(2) ("[An amendment] relates back to the date of the original pleading when the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.").
Though Ilyin's new claims border on futility, his pro se status warrants the utmost solicitude. See, e.g., United States v. Seesing, 234 F.3d 456, 462 (9th Cir.2001). Leave to amend will therefore be granted in this case. Ilyin's claims are time-barred, however, because they do not relate back to his original petition. The record also demonstrates thoroughly that they are unmeritorious.
Ilyin advances two new claims in his motion to amend. First, he argues his plea was not entered knowingly because his counsel did not explain adequately the collateral appeal waiver, nor voluntarily because his attorney coerced him into waiving his right to challenge his conviction on collateral review. Second, Ilyin maintains he was under the influence of gabapentin and methamphetamine during the explanation of the plea, the plea colloquy, and the signing of the plea agreement. Ilyin further insists his counsel was ineffective for failing adequately to explain the waiver, and permitting him to enter a plea while under the influence of medication and narcotics.
Ilyin is correct that due process requires a guilty plea be both knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). A guilty plea induced by promises or threats which deprive it of the character of a voluntary act is void. See Machibroda v. United States, 368 U.S. 487, 493 (1962). Additionally, a petitioner challenging his guilty plea on an ineffective assistance of counsel theory must show (1) his "`counsel's representation fell below an objective standard of reasonableness,'" and (2) "`there is a reasonable probability that, but for [his] counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 56-57 (1985)). Upon inspection, Ilyin's bare allegations will not prove capable of withstanding scrutiny. Leave to amend will be granted under Rule 15(a), however, in recognition of Ilyin's status as a pro se petitioner.
Ilyin's new claims are nevertheless time-barred. The statute of limitations applicable under the AEDPA requires that Ilyin's claims be filed on or before one year from the date on which his judgment of conviction became final. 28 U.S.C. § 2255(f)(1). As explained below, that date is February 7, 2015, yet Ilyin submitted the motion to amend roughly eight months later.
As a consequence, Ilyin's new claims are timely only if they "relate back" to his original petition, which requires that they contain a "common core of operative facts" with the initial claims. Mayle v. Felix, 545 U.S. 644, 664 (2005); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009). Stated differently, an amended petition "does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle, 545 U.S. at 650, 657.
Here, Ilyin's new claims—that his plea was not knowing and voluntary because his lawyer did not explain adequately the waiver, and allegedly permitted the entry of his plea even though he was under the influence—do not share a common core of operative facts with his original claims; namely, that his attorneys acquiesced to a violation of his rights under the Speedy Trial Act, failed to pursue an outrageous government conduct claim, and failed to inform the court about a post-sentencing prison attack.
Even setting that conclusion aside, the record demonstrates Ilyin's plea was knowingly and voluntarily entered, and his counsel was not ineffective. To begin, in his plea agreement, Ilyin confirmed his attorney, a skilled and experienced practitioner, provided him with all the legal advice he requested, and his decision to plead guilty was made voluntarily, without coercion, and with knowledge of both the charges and risks of trial.
At the hearing, Ilyin was responsive throughout the plea colloquy and able to follow the questions of the Court. He was asked under oath, "has anyone threatened you or coerced you in any way to enter a guilty plea," to which he answered, "no, sir." Plea Hearing Transcript at 8:17-19. The Court inquired whether he understood he was giving up his direct and collateral appeal rights, to which he responded, "I read that, yes. Yes." Id. at 8:20-9:2. Ilyin indicated he was frustrated because his lawyer had encouraged him to plead guilty, but he also admitted his attorney had "been professional," Id. at 5:22, and "done more than any other attorney has," id. at 5:12-13. When asked if he had taken any drugs, alcohol, or prescription medication in the last twenty-four hours, Ilyin responded: "I take gabapentin for my neuropathy." Id. at 6:3. That answer prompted the Court to inquire if the medication affected his "cognitive ability to understand what's going on." Id. at 6:6-7. Ilyin responded "[n]o, I guess it doesn't."
In sum, other than the self-serving statements offered in Ilyin's motion to amend, there is no evidence he was coerced by his attorney or under the influence of methamphetamine at any time. See Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (asserting that statements made by a "defendant contemporaneously with his plea should be accorded great weight"). Ilyin's allegations are belied by the statements he made under oath in open court, and by the contents of his signed plea agreement. All told, Ilyin entered his plea voluntarily, after proper advice, and with full understanding of the consequences. He was advised by competent counsel and did not suffer any identifiable prejudice.
The government claims that Ilyin's original motion is barred by the statute of limitations. Ilyin was required to file his § 2255 motion no later than one year from the date on which his judgment of conviction became final. 28 U.S.C. § 2255(f)(1). As the government acknowledges, because Ilyin pursued a direct appeal of his conviction, the one-year clock did not begin to run until those appellate proceedings were terminated. Pursuant to Ilyin's motion for voluntary dismissal, the Ninth Circuit issued a mandate dismissing his appeal on February 27, 2014. Ilyin therefore had until at least one year from that date to seek relief under § 2255.
Although his original motion was timely, by entering a voluntary and intelligent guilty plea pursuant to an agreement with the government, Ilyin forfeited his right to seek redress for putative ineffective assistance of counsel of the kind he initially alleged.
Even assuming for the sake of argument that Ilyin's claims are not barred, he has failed to state a cognizable claim for ineffective assistance of counsel. The proper standard for attorney performance is reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of the Strickland test requires the petitioner to demonstrate that his counsel's representation fell "below an objective standard of reasonableness." Id. at 688. Courts presume "that counsel's conduct was within the wide range of reasonable assistance, and that [he or she] exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). The other prong requires the petitioner to demonstrate a reasonable probability that the outcome of the proceeding would have been different if not for the errors of his counsel. Strickland, 466 U.S. at 694. To state a viable claim for ineffective assistance, a petitioner must satisfy both elements of the Strickland test. If either is absent, the claim must be dismissed. Id. at 697. Each of Ilyin's claims fails this test.
As mentioned above, Ilyin has entered into a valid plea agreement which serves to waive his rights. The following discussion addresses the substantive ineffective assistance of counsel claim in the alternative, assuming arguendo that Ilyin had not waived his rights. In the claim, Ilyin contends that his attorneys unreasonably acquiesced in violations of his rights under the Speedy Trial Act. 18 U.S.C. § 3161. The Speedy Trial Act ensures that a criminal defendant who pleads not guilty will begin trial "within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). Continuances, however, may be excluded from the speedy trial clock if "the ends of justice . . . outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A).
Ilyin was represented by three different attorneys while his case was pending in the Northern District of California. He confines his claim of ineffective assistance of counsel to the 111-day period from May 22, 2012 (the date of his arrest)
The bulk of the continuances and speedy trial exclusions at issue were entered to allow Ilyin's first two attorneys time to become familiar with the case. Dkt. Nos. 9, 10, 15, 18, 36. It is reasonable—and, indeed, often necessary—for defense attorneys to seek continuances and corresponding exclusions to gain time to prepare a zealous defense. United States v. Lam, 251 F.3d 852, 858 (9th Cir. 2001) (speedy trial claim cannot be predicated on "legitimate delays" related to preparation of counsel which were "necessary for and beneficial" to defense). Exclusions are also "necessarily required" when a substitution of counsel takes place in the midst of proceedings. United States v. King, 483 F.3d 969, 976 (9th Cir. 2007). It was not unreasonable for Ilyin's attorneys to seek brief continuances and exclusions for preparatory purposes.
Moreover, contrary to Ilyin's assertions, his second attorney dutifully entered into the record his objections to speedy trial exclusions on at least two occasions. Dkt. Nos. 120, 177. It is also worth noting that Ilyin's third attorney brought a motion to dismiss the indictment on speedy trial grounds. Dkt. No. 117.
Liberally construed, Ilyin's motion also alleges that his attorneys provided ineffective assistance by acquiescing in a violation of his Sixth Amendment right to a speedy trial. "[I]t will be an unusual case," however, "in which the time limits of the Speedy Trial Act have been met but the sixth amendment right to speedy trial has been violated." King, 483 F.3d at 977. This is not such a case. Ilyin alleges an unwarranted delay of approximately three and a half months, well below the threshold which might possibly give rise to a claim under the Sixth Amendment. Id. at 976 (citing cases finding 15, 17, 20, and 22 month delays insufficient to state Sixth Amendment claim and holding that postponement of nearly two years was likewise inadequate).
Ilyin next asserts that his counsel provided ineffective assistance by failing to pursue an outrageous government conduct claim against the San Francisco Police Department and the Drug Enforcement Agency. In fact, at Ilyin's "insistence," his third attorney did pursue such a claim. Dkt. No. 194. In response to Ilyin's requests, counsel engaged two private investigators and instructed his office to review relevant records. According to counsel, the investigation uncovered no support for Ilyin's allegations of a government conspiracy. Id. Nonetheless, the attorney filed a motion to dismiss the indictment predicated on "precisely the same factual allegations" as those contained in Ilyin's present ineffective assistance claim. Dkt. No. 113.
Finally, Ilyin maintains that a departure in his sentence is warranted because counsel failed to inform the court about a post-sentencing prison attack. Assuming that such an attack occurred as Ilyin has recounted, his present claim nonetheless still lacks merit. At bottom, the alleged attack (and his counsel's response, or lack thereof, to that event)
Ilyin fails to articulate any colorable theory under which he might be entitled to § 2255 relief. His motion for leave to amend his original petition is granted, but his motion to vacate his sentence under § 2255 is denied.
