United States v. Turner

1

UNITED STATES OF AMERICA, v. TRAVIS TURNER, Defendant.

No. 3:23-cr-189-SI-2

United States District Court, D. Oregon

August 22, 2023

Natalie K. Wight, United States Attorney, Ryan W. Bounds Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Of Attorneys for United States of America.

Sarah M. Hall, EPSTEIN, BECKER & GREEN PC, and Kristen L Winemiller, PACIFIC NORTHWEST LAW LLP, Of Attorneys for Defendant Travis Turner.

OPINION AND ORDER

MICHAEL H. SIMON, DISTRICT JUDGE

Defendant Travis Turner has moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his judgment and sentence based on ineffective assistance of counsel. On June 20, 2023, Pure Addiction Diesel Performance, LLC (Pure Addiction) pleaded guilty to the felony crime of tampering with a monitoring device, in violation of the Clean Air Act (CAA), 42 U.S.C. § 7413(c)(2)(C). Turner is the sole owner and manager of Pure Addiction. On that same day, Turner pleaded guilty to the misdemeanor offense of accessory after the fact to tampering with a monitoring device, in violation of 18 U.S.C. § 3. Pure Addiction and Turner requested, without objection by the government, that the Court waive the preparation of presentence reports and proceed immediately to sentencing under their plea agreements made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. After a thorough plea colloquy, the Court accepted the guilty pleas from both Defendants, agreed to waive presentence reports, and sentenced both Defendants as provided in their plea agreements. The Court sentenced Turner to six months' incarceration, consistent with his plea agreement.

Turner now argues that one of his factual admissions, made both in his signed plea agreement and confirmed orally during his plea colloquy under oath, is inaccurate. The government does not dispute Turner's point but argues that, among other things, there is more than enough record evidence to show that Turner is guilty not only of the misdemeanor offense to which he pleaded guilty (accessory after the fact to tampering with a monitoring device) but also of the felony offense of tampering with a monitoring device. The government also argues that the misdemeanor offense to which Turner pleaded guilty, as well as the specific factual description of Turner's culpable actions, were agreed upon during plea negotiations at the request of Turner, through counsel, after the government had proposed that Turner plead guilty to a felony offense with the government's recommendation of probation in exchange for an early plea of guilty. During plea negotiations, Turner's counsel told the government that Turner would rather plead guilty to a misdemeanor and receive a sentence of six months' incarceration than plead guilty to a felony offense with probation. It appears that Turner has now changed his mind. The Court has reviewed Turner's motion and exhibits (ECF 38, 41), the Government's response and exhibit (ECF 47, 47-1), Turner's reply (ECF 48), and other relevant documents in the record.

The Court held oral argument on August 21, 2023. For the reasons explained below, the Court denies Turner's motion.

STANDARDS

A. a Motions Under § 2255

Section 2255 of Title 28 of the United States Code permits a person in federal custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground 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 ....

28 U.S.C. § 2255(a).

A person in federal custody seeking relief under § 2255 also must file this motion within a one-year statute of limitations. The limitations period begins to run on the latest of four dates:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Id. § 2255(f). A judgment of conviction becomes final when the period for filing a direct appeal of that judgment lapses. United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015).

Under § 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting § 2255(b)); see also United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022) (“[A] hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's claims.” (quoting Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982))). In determining whether a § 2255 motion requires a hearing, “[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quotation marks omitted) (alteration in original). A district court may summarily dismiss a § 2255 motion based on a facial review of the record “only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” Id. at 1063 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Conclusory statements in a § 2255 motion do not require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

If a court denies a § 2255 motion, similar to when a court denies a habeas petition, the court may issue a certificate of appealability if “jurists of reason could disagree with the district court's resolution of [the prisoner's] constitutional claims or [if] jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see 28 U.S.C. § 2253(c)(2). Although the person in federal custody need not prove the merits of his case for the court to issue a certificate of appealability, the person must show “something more than the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El, 537 U.S. at 338 (quotation marks omitted).

B. Ineffective Assistance of Counsel

The leading federal case governing claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a challenger must prove: (1) that counsel's performance was deficient; and (2) that there is a reasonable probability that, but for the deficient performance, “the result of the proceeding would have been different.” Id. at 688, 694.

Under the first Strickland prong, for counsel's performance to be constitutionally deficient, it must fall below an objective standard of reasonableness. Id. at 688. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

“Strickland held that ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'” Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010) (quoting Strickland, 466 U.S. at 691).^[1] As explained by the Supreme Court:

[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. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant....And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

Strickland, 466 U.S. at 690-91. The Strickland standard governing counsel's obligations “to investigate and to present mitigating evidence [applies] at...