Beauchman v. United States of America, No. 2:2008cv01462 - Document 37 (W.D. Wash. 2010)
Court Description: REPORT AND RECOMMENDATIONS re 5 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by James H Beauchman, 1 Motion to Vacate/Set Aside/Correct Sentence (2255), Motion to Vacate/Set Aside/Correct Sentence (2255) filed by James H Beauchman. Objections to R&R due by 2/3/2010, Response due by 2/17/2010, Noting Date 2/19/2010, by Hon. Brian A Tsuchida. (Attachments: # 1 Cover Letter, # 2 Proposed Order Denying Section 2255 Motion, # 3 Proposed Judgment Order)(GS)
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Beauchman v. United States of America Doc. 37 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JAMES H. BEAUCHMAN, 10 11 12 Petitioner, Case No. C08-1462-JLR-BAT v. UNITED STATES OF AMERICA, REPORT AND RECOMMENDATION 13 Respondent. 14 15 16 INTRODUCTION AND SUMMARY CONCLUSION Petitioner James Beauchman is a federal prisoner who is currently confined pursuant to a 17 18 19 2005 judgment of this court. He has filed a motion under 28 U.S.C. § 2255 seeking relief from his confinement on the grounds that his counsel rendered constitutionally ineffective assistance 20 during plea negotiations when he failed to adequately explain to petitioner the sentencing 21 consequences of being convicted at trial. An evidentiary hearing was held with respect to that 22 claim after which the parties were invited to submit post-hearing briefs and were permitted to 23 submit supplemental exhibits. 24 This Court, having considered the evidence and arguments presented by the parties at the 25 26 evidentiary hearing, the briefs of counsel, and the balance of the record, recommends the district court find that petitioner’s counsel adequately explained the sentencing consequences of being REPORT AND RECOMMENDATION - 1 Dockets.Justia.com 1 convicted at trial. This Court further recommends, on the basis of this finding, that the district 2 court conclude that petitioner was not denied the effective assistance of counsel during plea 3 negotiations and that the district court therefore deny petitioner’s § 2255 motion. 4 BACKGROUND 5 On December 22, 2004, a federal grand jury in the Western District of Washington 6 7 returned a five count indictment against petitioner and three others -- Michael Roberts, 8 Christopher Knight, and Lorelei Clark -- charging drug and firearms offenses. (CR04-572-JLR, 9 Dkt. No. 31.) Specifically, the indictment charged all four defendants with conspiracy to 10 manufacture methamphetamine (Count I). (Id., Dkt. No. 31 at 1.) The indictment also charged 11 petitioner and co-defendant Clark with possession with intent to distribute methamphetamine 12 (Count 2), and with possession of firearms in furtherance of a drug trafficking crime; i.e., 13 conspiracy to manufacture methamphetamine. (Counts 4 and 5). (Id. at 2 and 3.) Finally, the 14 15 16 indictment charged petitioner and co-defendants Roberts and Clark with maintaining a drug involved premises (Count 3).1 (Id. at 2.) 17 On March 21, 2005, petitioner appeared before the Honorable Mary Alice Theiler, United 18 States Magistrate Judge, for arraignment on the charges set forth in the indictment. (Id., Dkt. No. 19 20 94.) At that hearing, petitioner was advised of the charges against him and of the possible penalties for those charges. (Id.) Petitioner entered a not guilty plea to all charges. (Id.) 21 22 23 24 On March 22, 2005, petitioner, through counsel Robert Leen, filed a motion seeking to have the Honorable J. Kelly Arnold, United States Magistrate Judge, appointed to conduct a settlement conference. (Id., Dkt. No. 98.) In that motion, Mr. Leen represented to the Court that 25 26 1 On August 3, 2005, the grand jury returned a superseding indictment which merely corrected a scrivener’s error in Count 1 of the original indictment. The substance of the charges was unchanged. (See Dkt. No.132.) REPORT AND RECOMMENDATION - 2 1 “[t]he defendant will admit guilt to criminal conduct for which he is responsible but not to the 2 degree of culpability the government would seek to hold him accountable.” (CR04-572-JLR, 3 Dkt. No. 98.) Mr. Leen also noted that “[a] settlement judge could help the parties agree on the 4 disposition of charges and agree on some relevant advisory guideline calculations.” (Id.) 5 Shortly after filing the motion for a settlement conference, Mr. Leen filed a motion to withdraw 6 7 as petitioner’s attorney and to have substitute counsel appointed. (Id., Dkt. No. 103.) In his 8 motion, Mr. Leen indicated that he was seeking to withdraw at petitioner’s request. (Id.) The 9 motion was granted and, on April 20, 2005, James Vonasch was appointed to represent 10 11 12 petitioner. (See id., Dkt. Nos. 109 and 112.) On June 9, 2005, petitioner and co-defendant Clark, together with their attorneys and attorneys for the government, participated in a settlement conference conducted by Judge 13 Arnold. (See id., Dkt. No. 117.) At that conference, the government offered to recommend a 15 14 15 16 17 18 19 20 year sentence in exchange for petitioner’s guilty plea. (See Dkt. No. 11, Ex. 1 at 1.) Petitioner declined the government’s offer and elected to proceed to trial.2 (Id.) Petitioner’s trial began on August 8, 2005, and on August 11, 2005, a jury found petitioner guilty on all five counts of the superseding indictment. (CR04-572-JLR, Dkt. No. 156.) The Court subsequently dismissed Count 5 of the superseding indictment after concluding that Counts 4 and 5 merged because both were firearms offenses based on the same underlying 21 22 23 24 predicate offense. (Id., Dkt. No. 164.) On November 28, 2005, petitioner was sentenced to a term of 240 months confinement on Counts 1 through 3, and to a consecutive term of 60 months on Count 4, for a total term of 300 months confinement. (CR04-572-JLR, Dkt. Nos. 175-176.) 25 26 2 Petitioner’s co-defendants all entered guilty pleas and all received sentences of eight years or less. (See CR04-572-JLR, Dkt. Nos. 84, 89, 119, 125, 167, and 184.) REPORT AND RECOMMENDATION - 3 1 This sentence, though substantially higher than the sentence the government offered during plea 2 negotiations, was well below the applicable guideline range of 360 months to life.3 3 4 5 Following petitioner’s sentencing, Mr. Vonasch filed a notice of appeal on petitioner’s behalf. (CR04-572-JLR, Dkt. No. 177.) Mr. Vonasch subsequently withdrew from the case and Jeffrey Ellis was appointed to represent petitioner on appeal.4 On November 30, 2006, the 6 7 United States Court of Appeals for the Ninth Circuit filed an unpublished opinion affirming 8 petitioner’s convictions. United States v. Beauchman, 208 Fed.Appx. 587 (9th Cir. 2006). The 9 Ninth Circuit denied a petition for rehearing and for rehearing en banc on January 25, 2007, and 10 the United States Supreme Court denied a petition for writ of certiorari on October 1, 2007. (See 11 Dkt. No. 1 at 3.) 12 On October 1, 2008, petitioner, through counsel, filed the instant § 2255 motion, and on 13 March 12, 2009, the government filed a response thereto. (Dkt. Nos. 1 and 11.) After reviewing 14 15 the briefs of the parties, this Court concluded that an evidentiary hearing would be necessary in 16 order to resolve petitioner’s claim that Mr. Vonasch rendered constitutionally ineffective 17 assistance during plea negotiations. (See Dkt. No. 13.) An evidentiary hearing was held on 18 October 5, 2009. (See Dkt. No. 24.) At that hearing, petitioner testified on his own behalf. (Id.) 19 20 Petitioner also called his mother, Patricia Murray, and his friend, Michael Moran, to testify on his behalf. (See id.) The government called attorney James Vonasch and Assistant United States 21 22 Attorney Jill Otake to testify at the hearing. (See id.) 23 24 3 25 26 The Court, at sentencing, made a finding that petitioner’s total offense level was 38 and that his criminal history category was 5. 4 While the record reflects that Jeffrey Ellis was the attorney appointed to represent petitioner on appeal, Steven Witchley, the attorney appointed to represent petitioner in these proceedings, was apparently the attorney who handled all of the briefing and oral argument on petitioner’s appeal. (See Dkt. No. 14 at 2.) REPORT AND RECOMMENDATION - 4 1 On October 8, 2009, the government moved to supplement the evidentiary hearing 2 exhibits with recordings and transcripts of two telephone conversations that took place on 3 October 2, 2009, between petitioner and his two witnesses, Ms. Murray and Mr. Moran. (Dkt. 4 No. 25.) On October 26, 2009, petitioner moved to supplement the evidentiary hearing exhibits 5 with recordings of telephone conversations that took place on October 6, 2009, between 6 7 petitioner and his two witnesses, and with a letter from petitioner to Mr. Vonasch dated January 8 21, 2009. (See Dkt. Nos. 29 and 30.) The parties’ motions to supplement were granted. (Dkt. 9 No. 34.) The parties thereafter submitted their post-hearing briefs. (Dkt. Nos. 35 and 36.) The 10 11 12 briefing is now complete and this matter is ripe for review. DISCUSSION Petitioner asserts in his § 2255 motion that his trial counsel, Mr. Vonasch, rendered 13 ineffective assistance when he failed to accurately explain the possible sentencing consequences 14 15 of being convicted at trial and, thus, left petitioner with the understanding that he had nothing to 16 lose by going to trial; i.e., that if he were convicted at trial he would receive the same 15 year 17 sentence that was offered by the government during plea negotiations. (Dkt. No. 1 at 1.) 18 Petitioner contends that if Mr. Vonasch had properly explained the risks of going to trial, he 19 20 would have accepted the plea offer. (Id. at 1-2.) The Sixth Amendment guarantees criminal defendants the right to effective assistance of 21 22 23 counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Claims of ineffective assistance of counsel are evaluated under the two-prong test set forth in Strickland. Under Strickland, a 24 defendant must prove (1) that counsel’s performance fell below an objective standard of 25 reasonableness and, (2) that a reasonable probability exists that, but for counsel’s error, the result 26 of the proceedings would have been different. Id. at 688, 691-92. When considering the first REPORT AND RECOMMENDATION - 5 1 prong of the Strickland test, judicial scrutiny must be highly deferential. Strickland, 466 U.S. at 2 689. There is a strong presumption that counsel's performance fell within the wide range of 3 reasonably effective assistance. Id. 4 The Ninth Circuit has made clear that “[a] fair assessment of attorney performance 5 requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct 6 7 the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s 8 perspective at the time.” Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (quoting Strickland, 9 466 U.S. at 689). The second prong of the Strickland test requires a showing of actual prejudice 10 related to counsel's performance. Strickland, 466 U.S. at 693. The reviewing Court need not 11 address both components of the inquiry if an insufficient showing is made on one component. 12 Id. at 697. Furthermore, if both components are to be considered, there is no prescribed order in 13 which to address them. Id. 14 15 Petitioner testified at the evidentiary hearing that Mr. Vonasch told him on numerous 16 occasions that he could not be punished for exercising his right to go to trial and, thus, that he 17 wouldn’t get any more than the 15 years the government had offered during plea negotiations 18 whether he went to trial or not. (Dkt. No. 28 at 37.) Petitioner further testified that it was never 19 20 discussed with him at the settlement conference what would happen if he turned down the government’s offer and proceeded to trial. (Id.) According to petitioner, he did not think he had 21 22 23 a good case but proceeded to trial because he believed he had nothing to lose. (Id. at 39-40.) Finally, petitioner testified that had he known and understood that the low end of his sentencing 24 range was 360 months, or 30 years, that he “absolutely” would not have proceeded to trial. (Id. 25 at 48-49.) 26 REPORT AND RECOMMENDATION - 6 1 Mr. Vonasch, during his testimony at the evidentiary hearing, emphatically rejected the 2 suggestion that he would ever advise a client to proceed to trial because the sentence would be 3 the same either way. (Dkt. No. 28 at 53.) Mr. Vonasch explained that “especially in federal 4 courts, I just can’t imagine anybody on the [CJA] panel saying anything like that. It is . . . not 5 good advice. It is just not correct. . . . [I]t is understood that generally sentences are better when 6 7 people plead[.]” (Id.) Mr. Vonasch also specifically denied that he ever told petitioner that if he 8 went to trial and was convicted he would receive a sentence of 15 years. (Id. at 54-56. See also 9 Dkt. No. 11, Ex. 1 at 2.) Mr. Vonasch explained that it was impossible to predict what sentence 10 petitioner would ultimately receive, particularly in light of the fact that the case was assigned to a 11 fairly new judge with no “track record” to use to predict. (Dkt. No. 28. at 56; Dkt. No. 11, Ex. 1 12 at 2.) 13 At the evidentiary hearing, Mr. Vonasch agreed that he thought petitioner’s case was bad 14 15 on the merits, but he also made clear that the decision of whether or not to go to trial was 16 petitioner’s to make. (See id. at 60-61.) Mr. Vonasch conceded that he did not remember 17 exactly what he had advised petitioner to do with respect to the question of whether or not to 18 proceed to trial, but he was unequivocal in his testimony that he had advised petitioner of all of 19 20 the guideline factors and of the fact that the guidelines were going to be much higher than 15 years if he were convicted after a trial. (See id. at 61-62.) Mr. Vonasch also made clear his 21 22 23 belief that petitioner understood the weaknesses in his case and the risks of going to trial, but was simply unwilling to accept the 15 year offer made by the government.5 (See id. at 55 and 61-62.) 24 25 26 5 Mr. Vonasch also stated in a declaration which was submitted in conjunction with the government’s response to petitioner’s motion, and which was admitted at the evidentiary hearing, that “[d]uring the settlement conference, all of Mr. Beauchman’s options were discussed, including pleading guilty … I was convinced that Mr. Beauchman understood the risks of going to trial and he decided not to accept the offer.” (Dkt. No. 11, Ex. 1.) REPORT AND RECOMMENDATION - 7 As noted above, petitioner called two other witnesses at the evidentiary hearing to offer 1 2 testimony in support of his ineffective assistance of counsel claim. The two individuals were 3 petitioner’s long-time friend Michael Moran, and petitioner’s mother Patricia Murray, both of 4 whom petitioner purportedly spoke to in 2005 regarding his case and his decision to proceed to 5 trial rather than to plead guilty. And, in fact, Mr. Moran and Ms. Murray both testified at the 6 7 evidentiary hearing that they had had telephone conversations with petitioner prior to his trial 8 during which he explained to them that the government had offered him 15 years, but that he was 9 proceeding to trial on the advice of his attorney because he understood that he had nothing to 10 lose by doing so because he would get only 15 years regardless of whether he took the plea or 11 not. (See Dkt. No. 28 at 14 and 25.) 12 While Mr. Moran and Ms. Murray both offered favorable testimony, petitioner managed 13 to effectively undermine the credibility of both of his witnesses, and of himself, by coaching his 14 15 witnesses prior to the evidentiary hearing on what to say. Evidence of petitioner’s apparent 16 tampering came to light following the evidentiary hearing when the government provided the 17 Court with copies of taped telephone conversations between petitioner and Moran, and between 18 petitioner and Murray, which took place on October 2, 2009, the Friday preceding the 19 evidentiary hearing.6 20 When petitioner spoke with Mr. Moran on October 2, 2009, the following exchange took 21 22 place: 24 Beauchman: Now this is really important, what you are going to tell him. And what it is that you are going to tell them, which is already the truth … is that I talked to you a couple of times before I went to trial. And… 25 Moran: Right. 23 26 6 Petitioner was confined at the Federal Detention Center at SeaTac, Washington at the time these calls were made. REPORT AND RECOMMENDATION - 8 1 2 3 4 5 6 7 Beauchman: Last time I talked to you, I told you that I was going, that I was going to go to trial and you asked me why was I going to trial and I told you because my lawyer told me I couldn’t get anymore than the 15 years they offered me. Moran: Right, because you had nothing more to lose, and you have everything to gain, there was nothing more to lose, by going to trial. Beauchman: Right, right, right, and that I couldn’t be punished for exercising my rights. 8 Moran: Ok. 9 Beauchman: Ok, now that is what he is going to ask you. Ok, because you are going to be our most credible witness. 10 11 12 13 Moran: Ok. (Dkt. No. 25, Ex. B at 8.) The fact that petitioner felt the need to provide Mr. Moran with such precise instructions 14 on what to say raises serious questions about whether petitioner and Moran actually did speak 15 prior to petitioner’s trial about his decision to proceed to trial. 16 Petitioner also spoke with his mother by telephone on October 2, 2009. During that 17 conversation, Ms. Murray expressed her concern that her testimony would not be deemed 18 19 credible and then the following exchange occurred: 20 Murray: Man, she’s gonna tear me apart. 21 Beauchman: No, you just don’t start panicking or anything, alright? Uh, but just make sure to tell her that you know, were still living in Federal Way when I talked to you the couple of times. 22 23 24 Murray: Yeah. 25 Beauchman: Which you were, you know what I mean? I talked to you a couple of times before you moved but you were in the process of moving and whatnot. 26 Murray: Yep, yep. REPORT AND RECOMMENDATION - 9 1 2 3 4 Beauchman: You know. (Dkt. No. 25, Ex. B at 1-2.) Later in the conversation between petitioner and his mother, just before they terminated their call, the following exchange took place: 5 6 Beauchman: So just make sure that you know, you tell Steven that it was Federal Way you were still living at when I, when we talked. 7 Murray: Yeah, Federal Way . . . where . . . 8 Beauchman: I don’t know. 9 Murray: I think (inaudible) 10 11 Beauchman: I think you were at an apartment. 12 Murray: Apartment in Renton, well no . . . 13 Beauchman: I thought you were still in Federal Way. 14 Murray: I don’t think so. Um, well maybe it was at that house in Federal Way, I’ll just say it was a house in Federal Way. 15 16 Beauchman: Yeah. 17 Murray: Yeah, OK. 18 Beauchman: Alright? 19 20 Murray: Alright honey. (Dkt. No. 25, Ex. B at 7.) 21 22 23 These exchanges suggest that Ms. Murray was unclear about where she was residing at the time she claims to have had the pretrial conversations with petitioner and that petitioner was 24 aware he would need to establish at the evidentiary hearing that he knew where his mother was 25 and he knew how to get a hold of her during the pretrial period at issue. This conversation raises 26 serious questions about whether petitioner did, in fact, know how to contact his mother prior to REPORT AND RECOMMENDATION - 10 1 trial. The conversation also reveals that Ms. Murray was apparently willing to adjust her 2 testimony as necessary to support her son’s claims. 3 4 In addition to the credibility concerns raised by these pre-hearing telephone calls, there were additional credibility issues pertaining, in particular, to Mr. Moran. Specifically, the Court 5 notes that petitioner did not make his attorney aware of Mr. Moran, an apparently valuable 6 7 corroborating witness, until days before the evidentiary hearing. Mr. Moran testified that he had 8 known petitioner for 15 or 16 years, that he lived with petitioner between the years 2000 and 9 2002, and that he had had the same cell phone number for 10 years. (Dkt. No. 28 at 13 and 20.) 10 It seems unlikely, given such testimony, that petitioner would have had any difficulty locating 11 Moran well in advance of the hearing to ask him to testify. 12 Petitioner has the burden of demonstrating that he was denied effective assistance of 13 counsel. Petitioner has given the Court no reason to question the credibility of Mr. Vonasch who 14 15 stated in his testimony at the evidentiary hearing, and in his pre-hearing declaration, that 16 petitioner was fully advised of the sentencing guidelines and of the risks of going to trial when 17 he made his decision to reject the government’s offer of 15 years and to proceed to trial. 18 Petitioner, on the other hand, has given the Court every reason to question his credibility and that 19 20 of his corroborating witnesses. This Court is convinced that Mr. Vonasch did, in fact, adequately explain the sentencing consequences of being convicted at trial to petitioner and that petitioner is 21 22 23 solely responsible for the circumstances in which he finds himself now. There is ample evidence in the record that petitioner was unwilling to accept the fact that 24 the government deemed him more culpable than his co-defendants, all of whom received 25 substantially lower sentences than the government offered petitioner during plea negotiations. 26 Petitioner rejected the government’s plea offer not once, but twice. It appears that only in REPORT AND RECOMMENDATION - 11 1 hindsight does petitioner recognize that the 15 years offered by the government during plea 2 negotiations was a very good offer indeed. 3 4 CONCLUSION Based upon the foregoing, this Court recommends the district court find that Mr. 5 Vonasch adequately explained to petitioner the sentencing consequences of being convicted at 6 7 trial, and that at no point did Mr. Vonasch advise petitioner he would receive the same 15 year 8 sentence offered by the government during plea negotiations if he was convicted at trial. The 9 Court further recommends, on the basis of these findings, that the district court conclude 10 petitioner was not denied the effective assistance of counsel during plea negotiations and that the 11 district court therefore deny petitioner’s § 2255 motion. A proposed order accompanies this 12 13 Report and Recommendation. DATED this 20th day of January, 2010. 14 15 16 A 17 BRIAN A. TSUCHIDA United States Magistrate Judge 18 19 20 21 22 23 24 25 26 REPORT AND RECOMMENDATION - 12
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