United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
S. Lasnik, United States District Judge.
matter comes before the Court on petitioner Dwight Anthony
Weems's pro se motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence. Dkt. #1.
For the reasons set forth below, the Court DENIES
January and February 2015, Kent Police Department detectives
working with a confidential informant conducted two
controlled buys of crack cocaine from petitioner and one
controlled buy from his girlfriend, Mozelle Frazier-Dubois.
In February 2015, detectives executed a warrant on the
residence and vehicle that petitioner shared with
Frazier-Dubois, and located over five kilograms of cocaine,
over one kilogram of heroin, and three firearms. Petitioner
was on federal supervised release for prior drug-related
offenses at the time. Case No. CR15-89RSL, Dkt. #44.
September 21, 2015, petitioner pleaded guilty to conspiracy
to distribute cocaine and heroin (in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A)) and possession of a firearm
in furtherance of a drug trafficking crime (18 U.S.C. §
924(c)(1)(A)(i)). As part of the plea, petitioner agreed that
he would not request a period of incarceration of less than
fifteen years. The plea agreement also included a limited
appeal waiver: if petitioner received a sentence within or
below the Sentencing Guidelines range as determined by the
Court at the time of his sentencing, he would waive his
rights to directly appeal and collaterally attack his
conviction and sentence, except as relating to the
effectiveness of legal representation. The government
committed that it would seek a term of imprisonment of no
greater than eighteen years and that it would not file an
enhanced penalty information alleging petitioner's prior
felony drug convictions pursuant to 21 U.S.C. § 851.
Case No. CR15-89RSL, Dkt. #44.
January 8, 2016, the Court sentenced petitioner to 192
months' imprisonment, including a 60-month mandatory
minimum sentence for possession of a firearm to run
consecutive to his sentence for the drug offense. This
sentence was below the government's total recommendation
of 216 months, U.S. Probation's total recommendation of
248 months, and his Guidelines range. The drug offense carried a
mandatory minimum of ten years. 21 U.S.C. §
841(b)(1)(A). The firearms offense carried a mandatory
minimum of five years. 18 U.S.C. § 924(c)(1)(A)(i). The
Court noted during sentencing that the additional year above
the plea agreement floor of fifteen years reflected twelve
months for a supervised release violation. See Case.
No. CR04-127RSL, Dkt. #68. Petitioner did not appeal.
28, 2017, petitioner filed this motion. Petitioner claims
that he received ineffective assistance of counsel and that
his guilty plea was not knowing and intelligent. Petitioner
also raises a separate claim to reduce his sentence under
Dean v. United States, 137 S.Ct. 1170 (2017).
Ineffective Assistance of Counsel Claims
ineffective assistance of counsel claims, though not
waivable, remain subject to § 2255(f)'s one-year
period of limitation. See United States v. Scruggs,
691 F.3d 660, 669 (5th Cir. 2012). Petitioners have one year
to bring a § 2255 motion, which runs from the latest of:
(1) the date on which the judgment of the 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 . . .;
(3) the date on which the right asserted was initially
recognized by the Supreme Court . . .; or (4) the date on
which the facts supporting the claim or claims presented
could have been discovered through the exercise of due
diligence. 28 U.S.C. § 2255(f). The applicable run date
of petitioner's one-year limitations period is the date
on which the judgment of his conviction became final.
Petitioner did not pursue a direct appeal to the Court of
Appeals, so his conviction became final when the time to file
a direct appeal expired. See United States v.
Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015). The Court
entered judgment on January 8, 2016, and petitioner had
fourteen days to file a notice of appeal. Fed. R. App. P.
4(b)(1)(A). Therefore, the judgment became final on January
22, 2016. Petitioner's period to bring this motion
expired on January 22, 2017, more than five months before
petitioner filed the instant motion.
argues he is entitled to equitable tolling of the time bar.
To qualify for equitable tolling, petitioner has the burden
of establishing: (1) “that he has been pursuing his
rights diligently; and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); see United
States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004)
(holding that the equitable tolling standard applies to
§ 2255 petitions). Petitioner asserts “due
diligence on the part of Dwight Weems, ” but explains
no further. He addresses the second prong by stating that his
counsel did not effectuate an appeal or advise him of his
ability to file a motion under § 2255. Petitioner does
not explain how his claim that counsel did not effectuate an
appeal relates to his request for equitable tolling. That
claim therefore fails the “extraordinary
circumstances” test because, even assuming his counsel
was unjustified in failing to appeal, he does not explain how
failure to make a direct appeal later stood in his way in
bringing a separate collateral attack. His claim that counsel
did not advise him of his ability to file this petition
likewise fails the “extraordinary circumstance”
test. Petitioner has no right to counsel in this proceeding.
See Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). This means his court-appointed counsel from the
underlying criminal proceeding owed him no information
surrounding a collateral attack. See Miranda v.
Castro, 292 F.3d 1063, 1066-67 (9th Cir. 2002)
(explaining that counsel's negligent calculation of
§ 2255 limitations period did not rise to the level of
“extraordinary circumstances”). Petitioner's
ignorance of the law is not alone considered an extraordinary
circumstance. Ford v. Pliler, 590 F.3d 782, 789 (9th
Cir. 2009). Petitioner, therefore, fails to establish his own
due diligence or an extraordinary circumstance that caused
the lateness of this petition. He is accordingly not entitled
to equitable tolling.
petitioner's ineffective-assistance claims are not time
barred, they fail on the merits. Petitioner claims that
counsel was unconstitutionally ineffective for failing to
challenge an allegedly defective indictment, failing to file
a pretrial entrapment defense, allowing petitioner to waive
his right to appeal, and allowing petitioner to receive a
substantially longer term of incarceration than his
codefendant. He appears to allege that because of these
failures of counsel, his plea was unintelligently and
involuntarily given. Petitioner also appears to claim counsel
was unconstitutionally ineffective for failing to file a
assistance of counsel requires showing that: (1)
counsel's performance was deficient to the point that it
fell below an objective standard of reasonableness; and (2)
counsel's deficient performance prejudiced defendant.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). To prevail on an ineffective assistance of counsel
claim challenging the intelligent and voluntary nature of his
guilty plea, petitioner must show that: “(1)
counsel's representation fell below the range of
competence demanded of attorneys in criminal cases; and (2)
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Washington v.
Lampert, 422 F.3d 864, 873 (9th Cir. 2005) (citing
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)).
Counsel's objectively unreasonable failure to file an
appeal or to consult the defendant about appealing may amount
to constitutionally deficient performance. Roe v.
Flores-Ortega, 528 U.S. 470, 479-80 (2000).
Counsel's failure to consult about or file an appeal is
more likely to be objectively unreasonable if the defendant
indicated he wanted to appeal or if nonfrivolous appeal
grounds would have made an appeal rational. Id. at
480. Petitioner must make this showing by a preponderance of
the evidence. See Simmons v. Blodgett, 110 F.3d 39,
42 (9th Cir. 1997).
fails to make this showing. Petitioner's
ineffective-assistance claims for failing to challenge the
indictment, failing to file a pretrial entrapment defense,
and allowing petitioner to receive a substantially longer
term of incarceration than his codefendant fail because
counsel's failure to raise unmeritorious claims cannot
show that counsel was deficient or that petitioner was
prejudiced. Petitioner's challenges to his plea agreement
and its component appeal waiver fail because, even taking
petitioner's claim that counsel's representation fell
below an objective standard of reasonableness at face value,
he fails to allege that he otherwise would have insisted on
going to trial or show any other type of specific prejudice.
Petitioner's ineffective-assistance claim for failure to
file a direct appeal fails because petitioner does not raise
any nonfrivolous grounds for appeal, indicate that he had a
desire to file an appeal at the time, or indicate ...