Everhart v. United States

KYLE ANDREW EVERHART, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. C16-5405 BHS

CASE NO. CR13-5512BHS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

November 1, 2016

ORDER DENYING PETITION IN PART, RESERVING RULING IN PART, GRANTING LEAVE TO AMEND, AND APPOINTING COUNSEL

This matter comes before the Court on Kyle Andrew Everhart's ("Petitioner") motion under 28 U.S.C. § 2255 (Dkt. 1), his motion to amend and to appoint counsel (Dkt. 11), and his motion for extension of time to file a supplemental reply brief (Dkt. 15). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby (1) denies in part and reserves ruling in part on Petitioner's motion under 28 U.S.C. § 2255, (2) grants Petitioner's motion to amend and appoint counsel, and (3) grants Petitioner's motion for an extension.

I. PROCEDURAL HISTORY

On September 24, 2014, a jury found Petitioner guilty of Possession of Methamphetamine with Intent to Distribute under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Cause No. CR13-5512, Dkt. 120. On December 15, 2014, the Court entered judgment in Petitioner's case. Id., Dkt. 139. On December 17, 2014, Petitioner gave notice of appeal. Id., Dkt. 140. On February 11, 2016, the Court of Appeals for the Ninth Circuit affirmed Petitioner's conviction. Id., Dkts. 216, 218.

On May 26, 2016, Petitioner filed his petition under 28 U.S.C. § 2255. Dkt. 1. On May 31, 2016, the Court entered an order requiring the Government to answer. Dkt. 3. On June 14, 2016, the Government requested an extension to answer. Dkt. 5. The Court granted the Government's request, extending the response deadline to July 8, 2016. Dkt. 6. On July 8, 2016, the Government responded. Dkt. 7.

On August 1, 2016, Petitioner filed a reply to the Government's response to his § 2255 petition. Dkt. 10. On August 9, 2016, he moved to appoint counsel and for leave to amend his petition. Dkt. 11. On August 16, 2016, the Government responded to Petitioner's motion for counsel and leave to amend. Dkt. 12.

On September 13, 2016, the Court requested additional briefing on whether Petitioner had selectively waived his Miranda and presentment rights prior to being questioned about his involvement with suspected drug trafficking in Washington. Dkt. 13. On September 23, 2016, the Government filed their supplemental brief. Dkt. 14. On October 3, 2016, Petitioner moved to extend to his supplemental briefing deadline. Dkt. 15. On October 5, the Government responded, expressing no opposition to an extension. Dkt. 16. On October 17, 2016, Petitioner filed his supplemental brief. Dkt. 17.

II. FACTUAL BACKGROUND

The Government's case against Petitioner was based on Petitioner's confession that he owned two plastic bags of methamphetamine (containing approximately 10,000 pills) that he intended to distribute. Dkt. 1 at 22-23. On April 22, 2014 at approximately 9:00 am, law enforcement arrested Petitioner pursuant to a warrant at a hotel room in the Hampton Inn in Tacoma, Washington. Dkt. 7-1 at 17, 20. Packaged drugs were found in the room. Dkt. 1 at 15-23.

When Petitioner was placed in a police car and informed of his Miranda rights, he initially stated that he did not want to talk. Dkt. 7-1 at 27-29. He was then taken to the Pierce County Jail. Dkt. 7-1 at 18, 21. During transport, Petitioner told the officer transporting him that he wished to speak with the case officer on his arrest, Agent Brady, regarding a murder investigation being conducted in Louisiana. Dkt. 7-1 at 18, 30-31. Shortly after 9:30 am, Petitioner arrived at the County Jail. Dkt 7-1 at 18. Petitioner was then transported several blocks to the FBI office in Tacoma to await an interview with Agent Brady. Dkt. 7-1 at 31.

Before the interview, Petitioner was provided a written waiver describing his Miranda rights and his right to a timely initial appearance under Fed. R. Crim. P. 5. Dkt. 7-1 at 2-3, 7-10. The waiver included the following language:

I also understand that, because of my arrest, I have a right under Rule 5, Federal Rules of Criminal Procedure, to be brought before a U.S. Magistrate Judge without undue delay to be advised about the reason for my arrest, to be advised about my constitutional rights, and for consideration of bail issues.

These rights have been explained to me orally and I have read this form. I understand those rights and wish to waive them for the purpose of voluntarily cooperating in a Federal investigation into suspected narcotics trafficking. I understand that I can tell the agents, at any time, that I have changed my mind and no longer wish to cooperate and that I will then be provided an appearance before a Magistrate Judge as soon as possible.

Id. at 2-3.

The waiver was read aloud to Petitioner by Special Agent Wattree, whereupon Petitioner indicated that he understood his rights and that he was waiving them. Id. at 2-3, 7-10. Petitioner then signed the waiver with witnesses present. Id. at 7-10. Prior to 2:30 pm, the FBI sent the executed waiver to the U.S. Attorney's Office. Id. at 10-11.

Agent Brady arrived at around 2:00 pm, informed Petitioner once again of his Miranda rights, and the interview began. Id. at 7-11, 25. During the interview, Petitioner stated that the pills discovered at the scene of his arrest belonged to him and that his fingerprints would be found on them. Dkt. 1 at 22-23; Dkt. 7-2 at 8. However, law enforcement could not find his fingerprints on the packaged drugs. Dkt. 7-2 at 4-7.

On April 9, 2014, Petitioner was indicted on three charges for Conspiracy to Distribute Controlled Substances, Possession of Cocaine with Intent to Distribute, and Possession of MDMA with Intent to Distribute. Cause No. CR13-5512, Dkt. 28. The Government later dismissed the initial indictment of Petitioner after learning he had pled guilty to overlapping charges in state court. Id., Dkt. 53. However, on August 13, 2014, Petitioner was again indicted on a count of Possession of Methamphetamine with Intent to Distribute. Id., Dkt. 60.

Prior to trial, Petitioner's counsel moved to suppress the statements made by Petitioner during the interview with Agent Brady. Id., Dkt. 58. On September 2 and 8, 2014, the Court heard oral argument from Petitioner's counsel and the Government on the motion to suppress. Id., Dkts. 70, 81. At the first hearing, Agent Brady testified that he recalled Petitioner invoking his right to counsel when he was read his Miranda rights. Dkt. 7-1 at 37-38. At the second hearing, Agent Brady corrected his prior statement, explaining that Petitioner did not invoke his right to counsel, but rather, only stated that he did not wish to talk. Id. at 21-22. Petitioner's counsel emphasized Agent Brady's inconsistency on cross-examination. Id. at 26-29.

On September 15, 2014, the Court denied Petitioner's motion to suppress. Cause No. CR13-5512, Dkt. 86. Making its ruling, the Court stated:

[T]he defendant was transported to the Tacoma FBI office where he was again given his Miranda rights twice, first by Agent Wattree and then by Brady. The defendant acknowledged his rights and signed a written waiver and made subsequent statements. In this case the facts before the Court demonstrate that it was the defendant that initiated a request to speak to law enforcement and he was given, again, his Miranda rights and they were waived. There is no evidence that the defendant did not understand the rights or the meaning and effect of the waiver. There is no evidence that the law enforcement officers used any duress, made any threats or made any promises to the defendant. The defendant, by signing the waiver, waived his right to have an attorney present.

Even though there is a presumption against a waiver, a written waiver is strong evidence of a valid waiver. The defendant demonstrated sufficient competence and awareness and appeared to understand the waiver and its effect. Viewing then the totality of the circumstances, the waiver and the statements made were made knowingly, intelligently, and voluntarily, and the motion to suppress his statements is denied.

Dkt. 7-1 at 38-39. The Court considered the fact that Agent Brady needed to correct his initial testimony. Id. at 37-38.

On September 23, 2014, Petitioner's case proceeded to trial. Cause No. CR13-5512, Dkt. 112. At closing arguments, Petitioner's counsel took particular care to highlight the lack of Petitioner's fingerprints on the drugs. Dkt. 7-2 at 12-13.

On September 24, 2014 at 11:20 am, the jury retired to commence deliberations. Cause No. CR13-5512, Dkt. 117. At 11:47 am, the jury sent a note to the Court, asking "Is there documentation of the confession either recorded and/or signed?" and "If there is a record of the confession, may we see it?" Id.; Dkt. 7-2 at 15. At 12:45 pm, after conferring with the attorneys for Petitioner and the Government, the Court answered "All the physical documentary evidence that's been admitted into evidence during trial has been made available for you to review and inspect." Dkt. 7-2 at 15-17; Cause No. CR13-5512, Dkt. 117. At 2:55 pm, the jury returned a unanimous guilty verdict. Cause No. CR13-5512, Dkt. 117.

III. DISCUSSION

A. § 2255 Petition

Pursuant to 28 U.S.C. § 2255 Petitioner moves to vacate, set aside, or correct his sentence. Dkt. 1. Petitioner raises four grounds for relief, all based on ineffective assistance of counsel. "To establish ineffective assistance of counsel 'a defendant must show both deficient performance [by counsel] and prejudice.'" Premo v. Moore, 131 S. Ct. 733, 739 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). The Supreme Court has explained defendant's burden:

To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [Strickland v. Washington, 466 U.S. 668, 688 (1984)]. A court considering a claim of

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