United States v. Aguilera (In re CCA Recordings 2255 Litig.)

1

In re CCA Recordings 2255 Litigation, Petitioners, This Document Relates to Case No. 15-cr-20043-JAR-2 United States v. Aguilera, 20-cv-02027-JAR

Aguilera v. United States; 14-cr-20096-JAR-5

United States v. Alvarez, 19-cv-2227- JAR

Alvarez v. United States; 15-cr- 20045-JAR-1

United States v. Birdsong, 19-cv-02406-JAR

Birdsong v. United States, 15-cr-20086-DDC-1

United States v. Blakney, 18-cv-02454- JAR

Blakney v. United States; 14-cr- 20096-JAR-3

United States v. Chinchilla, 19-cv-02392-JAR

Chinchilla v. United States; 14-cr- 20130-JAR-2

United States v. Clark, 19-cv-02410-JAR

Clark v. United States; 14-cr-20096-JAR-6

United States v. Faulkner, 18-cv-02452-AR

Faulkner v. United States; 15-cr-20042- JAR-2

United States v. Felix-Gamez, 18-cv-02487-JAR

Felix-Gamez v. United States; 14-cr-20068-DDC-2

United States v. Galvan-Campos, 19-cv- 02055-JAR

Galvan-Campos v. United States; 14-cr-20134-JAR-1

United States v. Harssfell, 19-cv-02722-JAR

Harssfell v. United States; 15-cr-20019- JAR-1

United States v. Haupt, 18-cv- 02423-JAR

Haupt v. United States; 15- cr-20100-JAR-1

United States v. Hollins, 18-cv-02465-JAR

Hollins v. United States; 15-cr-20032-DDC-2

United States v. Hurtado; 18-cv-2463-JAR-JPO

Hurtado v. United States; 15-cr-40064-DDC-1

United States v. Johnson, 18-cv-04099-JAR

Johnson v. United States; 14-cr-20138-DDC-1

United States v. Jones; 18-cv-2554-JARJPO

Jones v. United States; 16-cr-20022-JAR-2

United States v. Gary Jordan, 19-cv-2015-JAR-JPO

Gary Jordan v. United States; 15-cr-40078- DDC-1

United States v. Krites, 18-cv- 04096-JAR

Krites v. United States; 14- cr-20068-DDC-5

United States v. Lougee, 19-cv-02226-JAR

Lougee v. United States; 15-cr-20098-JAR-1

United States v. Love; 19-cv-2732-JARJPO

Love v. United States; 16-20003- DDC-1

United States v. McCambry; 19-2394-JAR-JPO

McCambry v. United States; 15-cr-20050-JAR-1, United States v. McDaniel, 19-cv-02145- JAR

McDaniel v. United States; 14-cr- 20035-JAR-1

United States v. Meinert, 18-cv-02455-JAR

Meinert v. United States; 14-cr-20068-JAR-9

United States v. Murphy, 19-cv-02365-JAR

Murphy v. United States; 14-cr-20096- JAR-1

United States v. Olea-Monarez; 20-cv-2051-JAR-JPO

Olea-Monarez v. United States; 14-cr-20096-JAR-7

United States v. Orduno-Ramirez, 19- cv-02166-JAR

Orduno-Ramirez v. United States; 15-cr-20019-JAR-2

United States v. Pavone; 20-cv-02400- JAR

Pavone v. United States; 14-cr- 20014-JWL-13, 15-cr-20006-JAR-1, 15- cr-20020-JAR-5

United States v. Phommaseng, 18-cv-02477-JAR, 18-cv- 02478-JAR, 18-cv-02479

Phommaseng v. United States; 15-cr-40059-DDC-2

United States v. Ramirez, 19-cv-04059- JAR

Ramirez v. United States; 14-cr- 20067-JAR-1

United States v. Rapp, 18-cv-02117-JAR

Rapp v. United States; 12-cr-20003-JAR-10

United States v. Redifer, 19-cv-02594-JAR

Redifer v. United States; 15-cr-20042- JAR-1

United States v. Roark, 19-cv- 02405-JAR

Roark v. United States; 15- cr-20099-DDC-1

United States v. Shevlin; 18-cv-2501-JAR-JPO

Shevlin v. United States; 13-cr-40123-JAR-1

United States v. Sneed, 19-cv-04008-JAR, Sneed v. United States; 13-cr- 20070-JAR-4, United States v. Tillman, 19-cv-02083-JAR

Tillman v. United States; 14-cr-20096-JAR-8, United States v. Valdez, 19-cv-02254-JAR, Valdez v. United States; 13-cr-20081- JAR-1

United States v. Warren, 19-cv- 02220-JAR-1

Warren v. United States; 15-cr-20081-DDC-2

United States v. Wilson, 18-cv-02499-JAR

Wilson v. United States

No. 19-cv-2491

United States District Court, D. Kansas

December 10, 2021

MEMORANDUM AND ORDER

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the above-captioned consolidated petitioners' Motions to Vacate and Discharge with Prejudice under 28 U.S.C. § 2255. These petitioners allege that the government violated the Sixth Amendment by intentionally and unjustifiably intruding into their attorney-client relationships by becoming privy to their attorney-client communications after their guilty pleas or convictions, but before they were sentenced. Petitioners ask the Court to reject the government's request to dismiss their motions on procedural grounds and find that they have made a sufficient showing to warrant an evidentiary hearing. As a remedy, petitioners ask the Court to vacate their judgments with prejudice to refiling or alternatively, to reduce their custodial sentence by 50% and vacate any term of supervised release.

Most of these petitioners recently requested the Court to set a status conference to determine whether and when their respective habeas motions should be set for evidentiary hearing.^[1] This Court declined to set the matter for a status conference, explaining that it intended to issue orders on the majority of these pending motions after review of and in conjunction with the post-evidentiary briefing in Hohn v. United States, No. 19-2082, where the petitioner alleged a pretrial Sixth Amendment violation.^[2] The Court has now ruled in Hohn clarifying that a pretrial violation alleged under the Tenth Circuit's decision in Shillinger v. Haworth is a per se Sixth Amendment violation that is not subject to harmless-error analysis.^[3] In this Order, the Court addresses whether the Shillinger per se rule categorically applies when the alleged Sixth Amendment violation occurs post-plea or conviction but prior to sentencing.

I. Background

The Court assumes the reader is familiar with its January 18, 2021 Order in the consolidated master case that frames the issue now before the Court (“January 18 Order”).^[4] That Order addressed the governing standard for Sixth Amendment intentional-intrusion claims under Shillinger, which held that a per se violation occurs when the government becomes privy to protected attorney-client communications because of its purposeful, unjustified intrusion into the attorney-client relationship.^[5]

The January 18 Order generally divides over 100 consolidated petitioners' alleged intentional-intrusion Sixth Amendment claims into three temporal categories: (1) violations that occurred before the plea or conviction; (2) violations that occurred after the plea or conviction but before sentencing; and (3) violations that occurred after sentencing.^[6] This temporal categorization was driven in part by the parties' divergent approaches to applying Tenth Circuit precedent in Shillinger. Petitioners seek to apply Shillinger's per se rule to all alleged violations, regardless of timing and circumstance; the government effectively ignores the per se rule or attempts to discount that extant decision as simply bad law.

Given the number of cases affected, the Court endeavored to establish legal standards common to these categories of petitioners, with individualized application to follow for each petitioner. The Court determined that the rule in Tollett v. Henderson^[7] procedurally barred petitioners who alleged pre-plea Sixth Amendment violations from advancing those claims.^[8]The Court dismissed one petitioner's § 2255 motion on these grounds and certified the issue for appeal; thirty-nine petitioners have successfully moved the Court to stay dismissal of their claims pending the appeal of that case.^[9] The Court also determined that approximately twenty petitioners lacked standing to advance their Sixth Amendment claims for various reasons, including: claims that alleged post-sentencing violations; claims where petitioners who had been deported challenged only their sentence; claims where petitioners challenging their sentence had been sentenced to the mandatory-minimum sentence; and claims involving binding pleas that were accepted by the court at the change-of-plea hearing.^[10]

The Court contemporaneously ruled that three petitioners who proceeded to trial in their underlying criminal proceedings are entitled to evidentiary hearings on their Sixth Amendment claims involving audio recordings.^[11] These petitioners, including Hohn, are in the first temporal category of claims asserting pretrial Sixth Amendment violations. Two of those petitioners' motions were resolved by the parties; Hohn's evidentiary hearing was held August 9 and 10, 2021.^[12] The Court ultimately denied Hohn's § 2255 motion on the merits after determining that he did not satisfy the protected-communication element under Shillinger.^[13]

From the outset, the government has argued that each and every petitioner's Sixth Amendment claim in these consolidated proceedings is subject to harmless-error review, under which constitutional error may be disregarded on habeas review unless found to have had “substantial and injurious effect or influence” on the outcome of the underlying proceeding.^[14]The Court addressed the government's harmless-error argument prior to the evidentiary hearing in Hohn.^[15] The Court rejected the government's claim that it needed to review the protected attorney-client communications prior to the evidentiary hearings in order to determine whether any alleged Sixth Amendment violation amounts to harmless error.

The above-captioned petitioners assert or have moved for leave to amend to assert claims in the second temporal category of motions alleging post-plea or conviction, pre-sentencing Sixth Amendment violations. As in Hohn, the government argues that these petitioners' claims are subject to harmless-error analysis.

II. Sixth Amendment Standard

The January 18 Order sought to reaffirm the Court's analysis and legal determinations regarding what is required in the Tenth Circuit to establish a violation of the Sixth Amendment based on the government's alleged intentional intrusion into petitioners' protected attorney-client communications and...