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Doran v. United States

United States District Court, W.D. Washington, Seattle

May 5, 2017

TIMOTHY DORAN, Petitioner,

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

          Robert S. Lasnik United States District Judge.


         This 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.


         In 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.

         In 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.

         Petitioner filed this motion under 28 U.S.C. § 2255 in August 2016. Dkt. # 1. The government opposes petitioner's motion. Dkt. # 8.


         Under 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).

         Petitioner 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 turn.

         A. Strickland Standard for Ineffective Assistance of Counsel

         To 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.

         B. Inadequate Assistance by Mr. Marchi

         Petitioner 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 ...

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