LONNY R. SUKO, Senior District Judge.
§2255 provides in relevant part:
Here, the motions and the files and records of the cases conclusively show the Defendant is entitled to no relief.
Defendant was ultimately charged in four separate indictments containing a total of eight counts. The two most serious counts related to the conspiracy to rob the fictional stash house: Briggs was charged with conspiracy to possess with intent to distribute cocaine and methamphetamine and conspiracy to possess a firearm in connection with a drug trafficking crime. Of the remaining six counts, four charged Briggs with completed sales of methamphetamine, and two charged him with conspiracy to escape and attempted escape from federal prison. On April 6, 2008, Defendant Briggs pled guilty to a host of drug-related charges. Six months later, with a new lawyer and a change of heart, Defendant Briggs filed a motion to withdraw his plea of guilty. This court denied the motion and eventually sentenced Briggs to 324 months imprisonment. Briggs timely appealed. The Ninth Circuit Court of Appeals affirmed Briggs' convictions, but vacated his sentence and remanded to the district court for re-sentencing based on the court's application of the §2D1.1(b)(1) enhancement found to be in error. The Mandates were filed October 19, 2010. (ECF No. 415 in CR-07-2063-LRS-1; ECF No. 344 in CR-07-2114-LRS-1; ECF No. 262 in CR-07-2066-LRS-2; and ECF No. 140 in CR-07-2065-LRS-1). On December 16, 2011, Defendant was re-sentenced in CR-07-2066-LRS-2 to 240 months on Count 1; 240 months on Count 2, concurrent and concurrent with the sentences imposed in CR-07-02063-LRS-1, CR-07-02065-LRS-2 and CR-07-02114-LRS-1. Defendant was also sentenced in CR-07-2114-LRS-1 to 60 months on Count 1s (Conspiracy to Escape); 60 months on Count 2s (Attempted Escape), concurrent with the sentences imposed in CR-07-02063-LRS-1, CR-07-02065-LRS-2, and CR-07-2066-LRS-2.
The Ninth Circuit Court of Appeals affirmed Defendant's convictions and issued its Mandates on November 9, 2012 (ECF No. 412 in CR-07-2114-LRS-1; ECF No. 502 in CR-07-2063-LRS-1; ECF No. 329 in CR-07-2066-LRS-2; and ECF No. 329 in CR-07-02065-LRS-2).
Defendant states in his §2255 motions that his "petition for a writ of certiorari was denied or expired on January 17, 2014." The court, however, cannot independently ascertain that he has filed a petition for certiorari or that such has been denied. It would appear that on February 7, 2013, Mr. Briggs' convictions became final.
Defendant's §2255 motions are deemed filed as of February 25, 2014.
Defendant's §2255 motions, "Statement of Facts/Affidavits" and exhibits (Defendant included a copy of the plea agreement with his handwritten commentaries inserted) filed in support of his petitions, for the most part, merely reiterate arguments which his counsel presented to this court and to the Ninth Circuit Court of Appeals. See this court's February 2, 2009 "Order Denying Defendant's Motion To Withdraw Plea and Resetting Sentencing Hearing," (ECF No. 216 in CR-07-2066-LRS-2
Defendant Briggs is challenging all four attorneys that provided representation to him for ineffective assistance of counsel at the following stages: preliminary hearing, arraignment and plea, sentencing and appeal.
Defendant asserts that on April 6, 2008 Mr. Gardner misinformed and misadvised him as to the law and mislead him to believe that if he plead guilty to all counts in four separate indictments and waived his rights to challenge those guilty pleas, that he would not be held accountable for any sentencing enhancements for leadership role or drug amounts derived from the fantasy stash house robbery. ECF No. 213 at 15.
Defendant further asserts that Mr. Gardner misinformed, misadvised and mislead him to believe that if he was held accountable to the fantasy stash house amounts that he would ultimately be able to raise the sentencing entrapment defense and would prevail on appeal. Defendant states he thought this meant that his sentence would range be 120 to 210 months. Id. Defendant then states that his new attorney Mr. Alden attempted to withdraw his plea and indicated to Mr. Briggs that it would have been better to proceed to trial because it would have been reasonably probable that a jury would have found that the stash house robbery was outside of Briggs' capability of committing. Id. at 16. Defendant further suggests that he should have had a chance to testify before a jury. Id. Additionally, Defendant complains that his guilty plea foreclosed the sentencing entrapment affirmative defense. Id.
Defendant also suggests that his fourth attorney at sentencing, Mr. Matheson, had to present facts that should have been presented at trial or prior to his plea. In particular, the fact that Mr. Briggs was only stringing the undercover agent along because he didn't want to lose him as a drug buying customer to ensure he could keep getting high. Id. Defendant further argues that in spite of the true facts that were never presented due to the guilty plea that should not have been entered, the court held him accountable to nearly all of the stash house drug amounts or enhancements, which resulted in a sentencing range above 120-210 months, or more specifically, 240 months. Id.
Defendant concludes "that his guilty plea, factual basis, and waiver was, unknowingly, unintelligently and unvoluntarily [sic] obtained based on the misrepresentations, misadvise, and misleadings of Attorney Gardner." Id. at 17. Defendant asserts that had he been counseled properly as to the legal ramifications of his plea he would have elected to just go to trial to properly testify or show that he was incapable of consummating the preposed [sic] robbery or that it was not within his ambition or means to commit . . . and that he was simply entrapped. Id. Defendant argues that had he proceeded to trial, it is reasonably probable that he would not have been found guilty or have been held accountable for the stash house drugs. Defendant further argues that even if he had been convicted at trial, he would have prevailed on appeal and would have been sentenced at a level 26 with no more than 120-210 months. Id.
Defendant did attempt to withdraw his plea before this court and the Ninth Circuit. This court found, with the benefit of a psychological report requested by defense counsel and prepared by Mark Mays, Ph.D., J.D. on January 22, 2009 as well as briefing from both the government and Defendant, that Mr. Briggs failed to meet his burden of persuasion of showing that "fair and just" reasons existed for withdrawal of his plea. The Ninth Circuit affirmed the district court's determination:
ECF No. 139 at 8-9 in CR-07-2065-LRS-1.
Although the Ninth Circuit found some credence to the theory behind Defendant's sentencing entrapment argument, the Ninth Circuit held that Briggs' guilty plea, that was found to be voluntarily and knowingly entered into, foreclosed Briggs from raising such a claim. As to this issue, the Ninth
Circuit explained:
ECF No. 139 at 11 in CR-07-2065-LRS-1.
Finally, Defendant's conclusory opinion that had he proceeded to trial, it is "reasonably probable that he would not have been found guilty" holds little weight given that his brother Michael Briggs was convicted by a jury of identical charges and Defendant was more culpable for the crimes they committed. For instance, the evidence established that Defendant Glen Briggs was the point of contact with the undercover federal agents, that he brought together his brother and co-Defendant Mora, and that, to the extent guns were to be involved, he arranged to acquire them. This court finds that counsel did not render ineffective assistance by allowing the Defendant to enter a guilty plea instead of proceeding to trial.
In a §2255 motion based on ineffective assistance of counsel, the movant must prove: (1) counsel's performance was deficient, and (2) movant was prejudiced by such deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). As to the first prong, there is a strong presumption defense counsel's performance was sufficiently effective. Id. at 689. Petitioner must show his counsels' performance was "outside the wide range of professionally competent assistance." Id. at 690. Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes an informed decision based on investigation; and (3) the decision appears reasonable under the circumstances. Thompson v. Calderon, 86 F.3d 1509, 1515-16 (9th Cir. 1996), citing Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
The issue is whether a reasonable defendant would have insisted on going to trial in these circumstances. Given the overwhelming evidence against Defendant, it is objectively unreasonable to infer that he would have rejected the plea agreement, which conferred a significant benefit on him, and risk instead facing certain prosecution and likely conviction in four separate indictments containing a total of eight counts.
Here, the performance of Defendant's counsel was not deficient. It was not outside the wide range of professionally competent assistance. Counsels' tactical decisions deserve deference because the record indicates they made informed decisions based on investigation which appear reasonable under the circumstances. Defendant Briggs was not prejudiced by his trial counsel's ineffective assistance in failing to inform him that if he pled guilty he would not be eligible to use the sentencing entrapment theory, despite Defendant's contentions. Finally, Defendant has not shown that a reasonable probability exists that the outcome of his cases would have been different if his attorney(s) had given the assistance that Defendant suggests they should have provided. The sentencing judge considered but rejected the entrapment argument raised at sentencing by defense counsel. The sentencing judge found there was no evidence provided to the court suggesting Defendant was reluctant to go forward at any time. ECF No. 242 at 23-24, filed in CR-07-2066-LRS-2. The ineffectiveness claims are without merit.
Accordingly, Defendant's §2255 Motions (
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines to issue a certificate of appealability as Defendant has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
