DERRICK K. WATSON, District Judge.
On March 12, 2015, Petitioner Michael Steven Wright pled guilty, without a plea agreement, to possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine, in violation of Title 21 of the United States Code Sections 841(a)(1) and (b)(1)(C). Thereafter, Wright was sentenced to 24 months imprisonment for that offense with the Court finding, among other things, that Wright was responsible for 1333 grams of methamphetamine. On appeal, Wright challenged his sentence, and the Ninth Circuit Court of Appeals affirmed, finding that Wright was merely held responsible for his own conduct. Relying on Section 2255 of Title 28 of the United States Code ("Section 2255"), Wright again challenges his sentence, this time alleging ineffective assistance of counsel. To the extent the sentencing argument Wright raises in this proceeding was not raised and decided during his direct appeal, the Court rejects Wright's request for collateral relief because his sentencing counsel was not ineffective.
The uncontroverted Presentence Investigation Report provided the following explanation of Wright's offense conduct and arrest:
Presentence Investigation Report, Dkt. No. 35.
Following his arrest and the initiation of a criminal proceeding against Wright, the Office of the Federal Public Defender ("FPD") was appointed to represent Wright. Although the Government moved for Wright to be detained without bail, Wright was released subject to various conditions. Three days after Wright's initial appearance in this case, Assistant Federal Public Defender Alexander Silvert appeared as counsel for Wright.
Thereafter, on March 12, 2015, at a hearing before this Court, Wright waived indictment and pled guilty, without a plea agreement, to the only charge in the Government's Information-knowingly and intentionally possessing with intent to distribute some quantity of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers. 3/12/15 Transcript of Hearing at 20:23-27:18, Dkt. No. 26. Among other things, at the plea hearing, the Government acknowledged that Wright thought the package with which he was arrested contained marijuana rather than methamphetamine. Despite his plea, the Court permitted Wright to remain out on bail, subject to the previously imposed conditions.
Prior to sentencing, the U.S. Probation Office prepared a PSR. Therein, the Probation Officer recommended that, in calculating Wright's base offense level, he be held responsible for 1.3 kilograms (or 1,333 grams) of methamphetamine. Wright objected to this recommendation on the ground that he thought the package with which he was arrested contained marijuana.
At sentencing, the Court overruled Wright's objection based upon its review of precedent from the Ninth Circuit and held him responsible for 1.3 kilograms (or 1,333 grams) of methamphetamine in calculating his base offense level. After various reductions to the base offense level that the Court found to be applicable, Wright's total offense level was calculated as 22, which, with a criminal history category of I, resulted in a guideline sentencing range of 41 to 51 months.
The Court then heard argument from counsel as to an appropriate sentence for Wright. Mr. Silvert, still representing Wright, asserted that, although the Court had held Wright responsible for methamphetamine, Wright should be sentenced within the guideline range that would have been produced had he been held responsible for marijuana. In other words, zero to six months imprisonment, with Wright requesting a sentence of probation. Mr. Silvert argued such a sentence was appropriate for many reasons, including the undisputed fact that Wright thought the package with which he was arrested contained marijuana.
After taking into consideration the arguments of counsel, Wright's allocution, and each of the 18 U.S.C. Section 3553(a) sentencing factors, the Court varied below the guideline range, sentencing Wright to 24 months imprisonment. In addition, the Court permitted Wright to self-surrender by March 17, 2016.
Shortly thereafter, Wright filed a notice of appeal and a motion for bail and to stay mittimus pending his appeal. Prior to his self-surrender date, the Court granted Wright's motion. The Court found that unusual circumstances existed making it inappropriate for Wright to be detained during his appeal. Those unusual circumstances included the Government acknowledging that Wright believed the package with which he was arrested contained marijuana. Wright, therefore, remained on release during his appeal.
On appeal, in his opening arguments before the Ninth Circuit, Wright argued that this Court plainly erred in holding him responsible for methamphetamine because, pursuant to Section 1B1.3(a)(1)(B) of the Sentencing Guidelines ("Section 1B1.3(a)(1)(B)"), he should not have been held responsible for the conduct of others-the packing of the package with methamphetamine-when he only agreed that the package would contain marijuana. Wright acknowledged that he did not make this argument at sentencing, hence his reason for arguing plain error. Wright also stated that drug quantity was not at issue in his appeal. Throughout his appeal, Wright remained represented by Mr. Silvert.
On June 29, 2017, the Ninth Circuit affirmed Wright's sentence. The Ninth Circuit concluded that this Court did not plainly err in holding Wright responsible for methamphetamine because, in doing so, Wright was "merely held responsible for his own conduct" in personally possessing the package containing methamphetamine. 6/29/17 Memorandum of the Ninth Circuit Court of Appeals at 2, Dkt. No. 54. The Ninth Circuit further concluded that this Court correctly used methamphetamine to calculate Wright's sentencing guideline range, even though Wright believed the package contained marijuana, because "a defendant's knowledge of drug type and quantity is not a fact that must be admitted or proved beyond a reasonable doubt." Id. (emphasis in original).
Wright then petitioned the Ninth Circuit for panel and en banc rehearing. In his opening arguments for rehearing, Wright argued that, in affirming his sentence, the Ninth Circuit had overlooked that the package he personally possessed did not contain 1.3 kilograms of methamphetamine-it only contained 0.84 grams after interdiction and replacement by law enforcement. Wright argued that, as a result, the only way to hold him responsible for the remaining 1299.16 grams of methamphetamine would be to apply Section 1B1.3(a)(1)(B), which he again argued was impossible given that he had not agreed to receive a package containing methamphetamine.
On March 13, 2018, the Ninth Circuit denied Wright's petition for panel and en banc rehearing without further explanation. The Mandate issued shortly thereafter. Wright then headed to the U.S. Supreme Court, filing a petition for a writ of certiorari. Wright's certiorari petition was denied on October 1, 2018.
The same day as the Supreme Court's denial of certiorari was docketed with this Court, Wright moved under Section 2255 to vacate, set aside, or correct his sentence ("the Section 2255 Motion"). The only ground upon which Wright moves for relief under Section 2255 is the ineffective assistance of counsel at sentencing, i.e. Mr. Silvert. Essentially, Wright makes the same argument he made in petitioning for rehearing before the Ninth Circuit-he should only have been held responsible for 0.84 grams of methamphetamine because that is all the package with which he was arrested contained-only, in the Section 2255 Motion, he adds the wrinkle that Mr. Silvert's alleged failure to spot this issue was prejudicial.
At the same time as filing the Section 2255 Motion, Wright also filed a Waiver of Conflict of Interest as to the Section 2255 Motion ("the Section 2255 Waiver"), Dkt. No. 63. The reason for the Section 2255 Waiver is the fact that the Section 2255 Motion was filed by Mr. Silvert. That is, although Wright argues that Mr. Silvert was ineffective at sentencing, Mr. Silvert still represents him in this proceeding. To the extent it has any meaning or relevance, the Section 2255 Waiver states that Wright waives any right he may have to contest in this case or any future litigation Mr. Silvert's conflict of interest in continuing to represent Wright.
Also at the same time as filing his Section 2255 Motion, Wright filed a motion for bail during the pendency of the Section 2255 Motion, Dkt. No. 64. This Court denied the motion for bail on October 30, 2018, and subsequently set November 9, 2018 as the date for Wright to self-surrender. On October 31, 2018, Wright filed a petition for writ of mandamus before the Ninth Circuit, challenging the Court's Order denying his motion for bail. With this Court, he then moved to stay mittimus and/or for release on bail pending resolution of his petition for writ of mandamus ("the motion to stay"), Dkt. No. 73. Thereafter, Wright also filed a motion for a temporary stay of mittimus pending an application for similar relief he intended to file with the Ninth Circuit ("the motion for a temporary stay"), Dkt. No. 75. The Court granted the motion for a temporary stay to the extent that mittimus was stayed until the Ninth Circuit ruled on any application for a stay Wright filed with the Court of Appeals. Wright then filed a request for clarification on the status of the motion to stay ("the request for clarification"), Dkt. No. 77. Wright also moved to stay mittimus of sentence in the Ninth Circuit.
On December 18, 2018, the Ninth Circuit granted Wright's motion to stay mittimus of sentence pending the resolution of his petition for writ of mandamus. This Court, therefore, finds that the motion to stay, Dkt. No. 73, and the request for clarification, Dkt. No. 77, are MOOT.
Under Section 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). The statute authorizes the sentencing court to grant relief if it concludes "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[.]" Id.
As set forth above, Wright raises one claim in the Section 2255 Motion: that he received ineffective assistance from his current counsel at the time of sentencing. The Court first sets forth the applicable legal standards for an ineffective assistance of counsel claim, and then addresses Wright's specific arguments.
To prevail on an ineffective assistance of counsel claim, a petitioner must establish two distinct elements. First, he must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In other words, a petitioner must show both that counsel's performance was deficient and that the deficiency was prejudicial. Id. at 692.
Counsel "is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 690-691.
Conclusory allegations of ineffective assistance of counsel made with no factual or legal explanation fall well short of stating a cognizable claim for ineffective assistance of counsel. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("[P]resentation of conclusory allegations unsupported by specifics is subject to summary dismissal.").
Strickland applies to claims of ineffective assistance of counsel in noncapital sentencing proceedings, Daire v. Lattimore, 812 F.3d 766, 767 (9th Cir. 2016), such as the one challenged in this case. To establish Strickland prejudice in the sentencing context, the Supreme Court has suggested that any increase in a defendant's sentence caused by a particular decision of counsel is prejudicial. See Glover v. United States, 531 U.S. 198, 204 (2001) (explaining that the amount by which a sentence is increased "cannot serve as a bar to a showing of prejudice" under the Sentencing Guidelines).
Before beginning with the Strickland analysis, the Court makes the following initial observation. In his memorandum in support of the Section 2255 Motion ("memorandum"), Dkt. No. 62, Wright asserts that his counsel was ineffective in failing to raise a relevant conduct issue as to drug quantity as opposed to the issue that was raised at sentencing of drug type. Wright acknowledges, however, that the quantity issue was raised before the Ninth Circuit, albeit in his motion for panel and en banc rehearing. Wright contends that his raising of the quantity issue before the Ninth Circuit should not stop this Court from addressing whether his counsel provided ineffective assistance because "the only reasonable inference to make is that the Ninth Circuit denied rehearing as a matter of discretion under the fourth plain error prong, rather than because there was no error at all." Dkt. No. 62 at 7. That speculation is meritless.
Nonetheless, because the Government has failed to address whether the Ninth Circuit has rejected Wright's underlying argument with respect to the quantity of drugs he should be held responsible, and, to the extent the Ninth Circuit has considered the argument, it is not clear on what basis the Court of Appeals rejected it,
Wright's claim of ineffective assistance cannot clear this first hurdle. Simply put, Wright makes no meaningful attempt to argue that his counsel's performance fell below or was unreasonable under prevailing professional norms. The only statement Wright makes in this regard in either his memorandum or reply brief is: "Missing an issue and making a mistake of law is deficient performance." Dkt. No. 62 at 3. Wright, though, provides no factual or legal explanation for that statement.
Factually, Wright provides no context for the assertion that counsel missed an issue. Notably, in the context of counsel's performance, "counsel is strongly presumed to have. . .made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690 (emphasis added). The Court sees no reason, and Wright provides none, why counsel's bald assertion in briefing papers that he missed an issue should overcome the strong presumption that counsel, instead, exercised reasonable professional judgment in deciding to forego contesting the quantity of drugs for which Wright was responsible.
Legally, Wright provides no explanation for the contention that counsel made a mistake of law. Indeed, Wright does not even identify the mistake of law counsel purportedly made. Presuming that it is the amount of drugs for which Wright should have been held responsible, at best, this is a mixed question of law and fact. See United States v. Laurienti, 611 F.3d 530, 552 (9th Cir. 2010) (explaining that, while it may be unclear what the standard of review is of a district court's application of the guidelines to the facts of a case, "typically" such application is "viewed as a mixed question of fact and law"). In other words, the quantity issue here requires interpreting a sentencing guideline, making factual findings, and then determining the amount of drugs for which Wright should be held responsible based upon the facts of this case. Unlike the only case to which Wright cites to support his contention that counsel acted deficiently, which is discussed below, it is not simply a question of knowing whether a law says X or Y.
In Hinton v. Alabama, 571 U.S. 263 (2014), the Supreme Court was faced with counsel who hired an expert based purely on counsel's belief that Alabama law capped funding for an expert at $1,000 and the expert in question being the only person counsel could find who would work for that amount of money. Id. at 267-268. As the Supreme Court explained, though, Alabama law had been amended a year prior to the defendant's arrest such that there was no longer any dollar-specific cap on funding for an expert at the time counsel was searching for one. Id. at 267. The Supreme Court concluded that counsel's failure to "make even the cursory investigation of the state statute providing for defense funding for indigent defendants," combined with counsel's "failure to request additional funding in order to replace an expert he knew to be inadequate," constituted deficient performance. Id. at 274. Those are simply not even remotely the circumstances at play here, and Wright makes no contention that they are. Unlike in Hinton, a cursory investigation of the relevant sentencing guideline here would not have revealed to counsel the purported error of his ways. Wright's conclusory assertion that counsel made a mistake of law, therefore, is not only unhelpful but wrong.
The Court notes that, although Wright failed to adequately address whether his counsel performed deficiently at sentencing, the Government addressed this issue in its response brief. More specifically, the Government argued that counsel's performance did not fall below prevailing professional norms because, in Hawaii, defense counsel "routinely choose not to challenge drug quantity in cases involving controlled deliveries of trace amounts of methamphetamine." Dkt. No. 70 at 7. In his reply brief, Wright dedicates just one sentence in response to this seemingly important contention, asserting that the Government's argument "elides" what makes this case anything other than routine-the Government's concession that Wright believed the package contained marijuana. Dkt. No. 79 at 11. Contrary to Wright's assertion, however, the Government's argument does not omit any facts. The Government's argument is simple: counsel in Hawaii routinely do not challenge drug quantity in cases involving controlled deliveries of small amounts of methamphetamine. Wright makes no argument to the contrary, nor does Wright present any evidence (or even argument) contesting the cases on which the Government relies. Thus, although it is Wright's burden to show that his counsel's performance fell below prevailing professional norms, the Government has done far more in opposition.
In summary, Wright makes no meaningful, non-conclusory attempt to show that his counsel performed deficiently at sentencing. Wright presents no evidence supporting that counsel performed deficiently and cites no law supporting any such contention. In effect, Wright simply makes an unordained assertion that counsel's performance was deficient. Strickland, however, requires far more than that-something which Wright ignores. As a result, the Court finds that Wright's claim of ineffective assistance of counsel at sentencing fails to satisfy the first prong of Strickland and can be denied on that basis alone.
In light of the Court's finding that Wright has failed to satisfy the performance prong of Strickland, it is not necessary to address whether counsel's performance at sentencing was prejudicial. See Strickland, 466 U.S. at 697. Nonetheless, the Court chooses to do exactly that.
As mentioned earlier, the Supreme Court has suggested that any amount of additional imprisonment time caused by counsel's performance can be prejudicial under Strickland. See Glover, 531 U.S. at 203. The initial question, here, therefore, is whether counsel's performance at sentencing-as Wright frames it, counsel's failure to argue at sentencing that the relevant conduct guideline did not capture the methamphetamine removed from the package prior to its delivery-resulted in Wright being sentenced to more time than he would have been had counsel performed as Wright now says he should have. The answer to this question begins with the pertinent sentencing guideline-Section 1B1.3(a)(1) of the U.S. Sentencing Guidelines ("Section 1B1.3(a)(1)").
Section 1B1.3(a)(1) provides as follows:
In addition, the commentary to Section 1B1.3 explains that, "[w]ith respect to offenses involving contraband (including controlled substances), the defendant is accountable under subsection (a)(1)(A) for all quantities of contraband with which he was directly involved. . . ." U.S.S.G. § 1B1.3 cmt. n.3(D) (2015).
Wright argues that, when Section 1B1.3(a)(1) is applied to the facts of this case, he can only be held responsible for 0.84 grams of methamphetamine under Section 1B1.3(a)(1)(A) and no amount of methamphetamine under Section 1B1.3(a)(1)(B). He further argues that, if held responsible for only 0.84 grams of methamphetamine, his base offense level would have been 14, which, after taking into account other adjustments and his criminal history category, would have produced a guideline sentencing range of 0 to 6 months, which is less than the 24-month sentence he actually received. Wright argues, therefore, that counsel's failure to argue that he should be held responsible for only 0.84 grams of methamphetamine-i.e., to challenge the quantity of methamphetamine for which he was held responsible-resulted in Wright receiving more imprisonment time than he should have.
The Court has no quibble with Wright's calculation of his guideline sentencing range if he were to be held responsible for only 0.84 grams of methamphetamine. The Court disagrees, however, with Wright's assertion that he can only be held responsible for 0.84 grams.
The Court begins with what Wright does not dispute-he is responsible for at least 0.84 grams of methamphetamine under Section 1B1.3(a)(1)(A). This is because, as Wright concedes, he possessed the package containing that amount of methamphetamine at the time of his arrest. See Dkt. No. 62 at 4.
But Wright is also responsible for the methamphetamine that was removed from the package by law enforcement prior to its delivery, which is approximately 1,300 grams. Wright spends the vast majority of his argument explaining why he purportedly cannot be found responsible for this amount of methamphetamine under Section 1B1.3(a)(1)(B). Reliance on Section 1B1.3(a)(1)(B), however, is unnecessary. Wright is responsible for this methamphetamine under Section 1B1.3(a)(1)(A).
Wright spends little time contending otherwise. All Wright asserts, without any explanation, is that he did not commit any act with respect to the removed methamphetamine, and, in a conclusory regurgitation of the language of the guideline, he did not aid, abet, counsel, command, induce, procure, or willfully cause the removed methamphetamine to be packed into the package. Wright, however, is wrong, as he, in fact, committed many acts with respect to the removed methamphetamine. Most important, he agreed to have packages sent to his address containing a controlled substance, including the package at issue in this case containing all 1.3 kilograms of methamphetamine, and to then deliver the package on arrival to Toma. In addition, Wright went to the post office to check on the package after it did not arrive on the date he had been told it would. Wright also received the package at his address, met with the person for whom he was receiving the package, and drove the package through various city streets in an attempt to take it to its intended destination. All of these acts are relevant conduct for purposes of Section 1B1.3(a)(1)(A), as they are "acts" "committed. . .by the defendant" "during the commission of the offense of conviction [and/or] in preparation for that offense. . . ."
For reasons unknown, Wright fails to mention any of these acts. Instead, he focuses his attention solely upon one-the packing of methamphetamine into the package. That is certainly an act in preparation of the offense of conviction, but, Wright appears to be under the impression that it is the only one for which he can be held responsible under Section 1B1.3(a)(1)(A). That is simply not true. Section 1B1.3(a)(1)(A) concerns all acts committed by a defendant in connection with an offense, not just the acts arguably most responsible for the offense.
The Ninth Circuit's decision in United States v. Johnson, 357 F.3d 980 (9th Cir. 2004), confirms this. Notably, in Johnson, the Circuit found that the defendant's relevant conduct involved ordering a controlled substance, checking on the package, and receiving it when it was delivered. Id. at 987. The defendant's relevant conduct did not involve packing the package with a controlled substance. Nonetheless, the Circuit concluded that the defendant should be held responsible for the entire amount of drugs shipped to him under Section 1B1.3(a)(1)(A). Id.
Wright attempts to factually distinguish Johnson, but, there is only a single—ultimately unpersuasive—reason to do so. Here, as in Johnson, the defendant checked on the package after delivery was not made, and the defendant received the package at his address. The only difference is that, in Johnson, the defendant ordered the controlled substance, while, here, Wright agreed to receive a controlled substance. While this is a difference, it does not make Wright's agreement to receive a controlled substance any less of an act committed by him or mean that Wright did not cause the package containing a controlled substance to be sent to him. This difference, in other words, does not minimize Johnson's import.
Wright further attempts to distinguish Johnson on the ground that it purportedly stands for the proposition that interdiction of controlled substances should not preclude liability for the "frustrated objective" of an offense. See Dkt. No. 79 at 3-4. As with all of Wright's arguments, that argument focuses upon Wright's knowledge of the type of drug contained in the package. See id. at 4 (arguing that Wright did not agree on the objective of distributing methamphetamine). Wright's continued argument that he did not know the type of drug in the package, however, continues to be irrelevant. As Wright himself concedes, "the fact that he was mistaken about what was in the parcel doesn't matter" with respect to Section 1B1.3(a)(1)(A). See Dkt. No. 62 at 4.
In any event, the logic underpinning Johnson is that a defendant should not benefit from the fortune of having law enforcement remove the vast majority of drugs prior to a delivery, given the difficult choices law enforcement must make in attempting a controlled delivery. See Johnson, 357 F.3d at 987. As the Ninth Circuit explained, "had the agents successfully made a controlled delivery of the original package rather than removing most of the drugs, 83.2 grams would have arrived at Johnson's door." Id. There is no substantive difference here. If investigators had not removed all but 0.84 grams of methamphetamine from the package, 1,333.84 grams of methamphetamine would have arrived in Wright's mailbox. He would also have then possessed that amount of methamphetamine and driven it through various city streets. The only reason this did not happen is because law enforcement decided to remove the vast majority of methamphetamine from the package, rather than risk having that substantial amount in the community. Like in Johnson, Wright should not benefit from this fortuitous happenstance when he engaged in relevant conduct with respect to the entirety of the methamphetamine.
The Court need go no further.
In denying the Section 2255 Motion, the Court must also address whether Wright is entitled to a Certificate of Appealability ("COA"). See R. 11(a), Rules Governing Section 2255 Proceedings. A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is met only when the applicant shows that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). Based on the above analysis, and in particular, Wright's failure to make any attempt to demonstrate that his counsel performed deficiently at sentencing, the Court finds that reasonable jurists would not find the Court's decision herein debatable. Accordingly, the Court DENIES the issuance of a COA.
For the foregoing reasons, the Court DENIES the Section 2255 Motion, Dkt. No. 61. In addition, the Court DENIES a COA. Wright's motion to stay mittimus and/or for release on bail, Dkt. No. 73, and request for clarification on the status of the motion to stay, Dkt. No. 77, are DENIED AS MOOT.
Finally, in light of this denial of the Section 2255 Motion, Wright's petition for writ of mandamus pending before the Ninth Circuit, and the Ninth Circuit's December 18, 2018 stay of mittimus pending resolution of Wright's mandamus petition, the parties are directed to advise the Ninth Circuit of the issuance of this Order within seven (7) days of entry.
The Clerk is directed to enter Judgment in favor of Respondent, the United States of America, and then close Case No. 18-cv-377 DKW-KJM.
IT IS SO ORDERED.
