United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION UNDER 28 U.S.C. §
S. Lasnik United States District Judge.
matter comes before the Court on petitioner's
“Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct A Sentence by a Person in Federal Custody,
” Dkt. # 1, and the government's answer, Dkt. # 8.
Having reviewed the parties' briefing and the relevant
record, the Court denies petitioner's motion for the
reasons that follow.
September 2012, petitioner Timothy Doran pled guilty to
failure to register as a sex offender in violation of 18
U.S.C. § 2250. Case No. CR12-1RSL, Dkt. ## 42, 43, 86.
Petitioner's registration requirement arose from his 1992
conviction in Pierce County, Washington, of rape in the
second degree in violation of RCW 9A.44.050. Case No.
CR12-1RSL, Dkt. # 43. After 82 months' imprisonment for
that offense, petitioner was released in April 1999.
Id. In October 2010, petitioner moved to Vietnam and
failed to update his registration. Id. Petitioner
returned to the United States in March 2011 and failed to
comply with his registration requirements. Id. In
December 2011, petitioner self-surrendered. Id.;
Case No. CR12-1RSL, Dkt. # 118. The federal indictment for
failure to register and petitioner's guilty plea
followed. Case No. CR12-1RSL, Dkt. ## 9, 42, 43.
October 2014, after multiple evidentiary hearings at which
the government proved by clear and convincing evidence that
petitioner had murdered a woman while he was living in
Vietnam, the Court sentenced petitioner to 99 months in
custody and five years of supervised release, an upward
departure from the Guidelines advisory range of 27-33 months.
Case No. CR12-1RSL, Dkt. ## 123, 132. On direct appeal, the
Ninth Circuit affirmed both the finding that petitioner had
murdered the woman and the Court's ultimate sentence.
Case No. CR12-1RSL, Dkt. # 148. In April 2016, the Ninth
Circuit denied petitioner's motion for rehearing en banc.
Case No. CR12-1RSL, Dkt. # 154.
filed this motion under 28 U.S.C. § 2255 in August 2016.
Dkt. # 1. The government opposes petitioner's motion.
Dkt. # 8.
28 U.S.C. § 2255, a prisoner in federal custody may move
the sentencing court to vacate, set aside, or correct his
sentence where “the sentence was imposed in violation
of the Constitution or laws of the United States, or [where]
the court was without jurisdiction to impose such sentence,
or [where] the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack . . . .” Because petitioner filed his motion
under 28 U.S.C. § 2255 within one year after his direct
appeal was denied and his conviction became final, it is
timely under that provision's one-year deadline. 28
U.S.C. § 2255(f)(1).
asks the Court to vacate his sentence pursuant to 28 U.S.C.
§ 2255 on the grounds that his sentence is
unconstitutional as the product of ineffective assistance of
counsel (“IAC”). Specifically, petitioner argues
that defense counsel Nicholas Marchi, who represented
petitioner during the plea phase and the early stages of the
sentencing phase, coerced petitioner to plead by giving him
false information and then prevented petitioner from
participating in the preparation of petitioner's
presentence investigation report. Dkt. # 1 at 5. Next,
petitioner argues that Federal Public Defenders Dennis
Carroll and Jay Stansell, who were appointed to represent
petitioner after Magistrate Judge Theiler granted Mr.
Marchi's motion to withdraw, failed to “vehemently
argue” petitioner's theory at sentencing: that
petitioner had killed the woman in self-defense after she
brought gangsters to petitioner's house to assault him.
Dkt. # 1 at 6, 8. Petitioner also argues that Mr. Carroll and
Mr. Stansell failed to impeach various witnesses, failed to
argue for a three-year term of supervised release, and failed
to challenge the Court's upward modification of
petitioner's criminal history category at sentencing.
Dkt. # 1 at 9, 12a. After reviewing the applicable law, this
order addresses the claims against each set of counsel in
Strickland Standard for Ineffective Assistance of
prevail on an IAC claim, petitioner must show both that his
counsel's performance was inadequate and that prejudice
resulted from that inadequate performance. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). In evaluating
the adequacy of counsel's performance, the Court
“indulge[s] a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. As to
the prejudice prong, petitioner “must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
Inadequate Assistance by Mr. Marchi
fails to show both inadequacy and prejudice as to his claims
that Mr. Marchi coerced him to plead guilty and then
prevented him from helping prepare the presentence
investigation report. Petitioner claims that the
“records of the District Court clearly show defense
counsel Marchi was found to be ineffective, ” and that
Mr. Marchi “gave erroneous information coer[c]ing
defendant to plead guilty.” Dkt. # 1 at 5. Petitioner
does not specify what erroneous information Mr. Marchi
provided, or how that information coerced Petitioner into
pleading guilty. As the government points out,
“conclusory allegations which are not ...