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United States v. Richardson

United States District Court, D. Kansas

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff / Respondent,
v.
JUSTIN RICHARDSON Defendant / Petitioner.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         This matter is presently before the Court on defendant Justin Richardson's pro se petition to vacate his sentence pursuant to 28 U.S.C. § 2255 (Doc. # 112). For the reasons set forth below, the Court concludes that defendant is not entitled to relief, and his petition is therefore denied.[1]

         I. Background

         On March 25, 2013, defendant pleaded guilty to one count of a conspiracy with intent to distribute methamphetamine. On June 8, 2015, the Court sentenced defendant to a term of imprisonment of 262 months. Defendant filed an appeal, but the Tenth Circuit dismissed the appeal on the basis of the waiver contained in defendant's plea agreement. Defendant now seeks to vacate his sentence pursuant to 28 U.S.C. § 2255.

         II. Analysis

         A. Filing of Motion for Departure at Sentencing

         In the first claim asserted in his Section 2255 petition, defendant claims that his counsel's performance was constitutionally deficient because counsel filed an unsuccessful motion prior to sentencing for a downward departure pursuant to U.S.S.G. § 4A1.3. Section 2255 entitles a prisoner to relief “[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” See 28 U.S.C. § 2255(b). “To establish ineffective assistance of counsel, [a] [d]efendant must show ‘that counsel's representation fell below an objective standard of reasonableness' and that he was prejudiced by the deficient performance.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).

         In opposing this claim, the Government does not dispute that defendant suffered the requisite prejudice from the filing of the motion for a downward departure. The Court ruled at sentencing that the request for a departure constituted a breach by defendant of his plea agreement and that such breach relieved the Government of its obligation not to seek any enhancement beyond the sentencing guideline range recommended by the probation office. The Government then requested and received a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, based on defendant's leaving the state without the permission of probation officials in violation of the terms of his release. Thus, defendant argues that his counsel's filing of the motion resulted in a longer sentence based on a higher guidelines offense level and a longer recommended sentencing range.[2]

         The Court concludes, however, that defendant has not met his burden to show that his counsel acted unreasonably in filing the motion. While defendant has noted the adverse effect from the filing of the motion, he has not addressed the content of that motion, and thus he has not addressed the reasonableness of making the arguments contained therein. As set forth in the motion, the argument for a downward departure was made to account for the possible passage of certainn legislation that had been introduced in Congress, which legislation might have affected defendant's mandatory minimum sentence. Moreover, although defendant focuses on the enhancement made possible by the breach of the plea agreement, defendant had not yet committed the act (leaving the state without permission) that was ultimately deemed an obstruction of justice for purposes of the guidelines, and thus there is no basis to believe that counsel should have expected that a breach of plea agreement would affect the guidelines range.[3]

Most importantly, the evidence reveals that the motion was filed at the insistence of defendant himself, even after he was warned of the possible implications. Counsel submitted an affidavit in which he stated that he “prepar[ed] the motion at [defendant's] request despite Counsel advising him that the Government, if the Court found a breach of the agreement, would no longer be bound by or constrained in its arguments at [defendant's] sentencing hearing.” In his reply brief, defendant does not dispute this statement by counsel concerning how he adivsed defendant; instead, defendant merely notes that counsel stopped short of stating in the affidavit that he advised defendant that the Court would find a breach. Defendant has not asserted, however, that counsel indeed failed to advise him that a breach would likely be found, and it is defendant's burden to establish his claim.[4] Moreover, there is uncontroverted evidence that defendant was advised that the motion would likely result in a breach, as his subsequent counsel stated in his affidavit that he discussed with defendant the ramifications of filing the motion in violation of the plea agreement (a statement that defendant has not disputed).[5]

         Defendant argues that counsel should have refused to file the motion despite defendant's insistence that it be filed, but he has cited no relevant authority in support of that argument. To the contrary, courts have noted that an attorney generally has an ethical obligation to comply with his client's wishes concerning the representation, see, e.g., Foster v. Strickland, 707 F.2d 1339, 1343 & n.3 (11th Cir. 1983) (citing Ethical Consideration 7-7 of the ABA Code of Prof. Resp.), and that the client is the master of his own defense, see, e.g., United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992). In Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994), the Tenth Circuit cited with approval a Ninth Circuit holding that counsel's acquiescence in the client's informed strategic decision did not constitute ineffective assistance. See Id. at 1371 (citing Jeffries v. Blodgett, 5 F.3d 1180, 1198 (9th Cir. 1993)). In its case, the Ninth Circuit quoted the Supreme Court in recognizing that the “reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” See Jeffries, 5 F.3d at 1198 (quoting Strickland, 466 U.S. at 691). The Ninth Circuit further noted the Eleventh Circuit's holding that “when a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” See Id. (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985)).

         In this case, the uncontroverted evidence is that counsel filed the departure motion at defendant's insistence, after defendant was informed of the possible ramifications of such a violation of the plea agreement. In addition, defendant has not shown that such acquiescence was unreasonable in light of the potential benefits and risks of such a motion. Accordingly, the Court denies this claim of ineffective assistance of counsel.

         B. Appeal Brief

         For his second claim, defendant claims that his appellate counsel rendered ineffective assistance with respect to defendant's brief in response to the Government's motion to the Tenth Circuit to enforce the plea agreement's appeal waiver. In that response brief, counsel effectively conceded that the appeal fell within the scope of the waiver. Defendant argues that, although the Tenth Circuit deemed the brief to be an Anders filing, the brief did not in fact comply with Anders because counsel did not determine ...


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