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Ashby v. United States

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

June 18, 2019

JESSICA L. ASHBY, Petitioner,


          John C. Coughenour United States District Judge.

         This matter comes before the Court on Petitioner Jessica Ashby's motion to vacate her sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 1). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby DENIES the motion in part, and ORDERS an evidentiary hearing in part, for the reasons explained herein.

         I. BACKGROUND

         In April 2017, Petitioner was charged with conspiracy to distribute heroin, distribution of heroin, and possession of heroin with intent to distribute. See United States v. Cota-Muniz, et al., No. CR17-0111-JCC, Dkt. No. 20 (W.D. Wash 2017). In September 2017, Petitioner pled guilty to one count of conspiracy to distribute heroin. United States v. Cota-Muniz, et al., No. CR17-0111-JCC, Dkt. No. 63. Petitioner was represented in her criminal case by Sean Gillespie. (Dkt. No. 13-1.) As part of her plea agreement, Petitioner acknowledged that she was involved in a conspiracy with her co-Defendants to distribute heroin, she was contacted by her co-Defendant in order to provide assistance in completing a sale of heroin, and that she received instructions from undercover Homeland Security Investigations (“HSI”) officers in order to complete a sale of heroin. (Id.) Petitioner alleges that Mr. Gillespie told her that if she agreed to this plea deal, her attorney “couldn't see the judge giving her more than a year and a day in jail”. (Dkt. No. 1.)

         One week prior to her plea hearing, while in custody, Petitioner gave birth to her son via C-section. (Dkt. No. 13-2 at 3.) Due to pain resulting from the C-section procedure, Petitioner was prescribed twice daily doses of 10mg of oxycodone. (Dkt. No. 13-1 at 1.) At 6:00 a.m. the morning of her plea hearing, Petitioner ingested 10mg of oxycodone. (Id.) Petitioner alleges that Mr. Gillespie was aware of her oxycodone use, and advised her not to tell the presiding judge about it, for fear of delaying the proceedings. (Dkt. No. 1 at 7.) Petitioner's plea hearing was presided over by the Honorable Mary Alice Theiler, U.S. Magistrate Judge. (Dkt. No. 11-1 at 1.) During the plea hearing, Petitioner told Judge Theiler that she was not under the influence of any drugs or alcohol. (See Dkt. No. 11-2.) At the end of the plea hearing, Petitioner pled guilty to conspiracy to distribute heroin. (Id.) In December 2017, she was sentenced to 54 months in prison, followed by 3 years of supervised release. (Dkt. No. 1 at 1.)

         In November 2018, Petitioner filed for habeas corpus relief, alleging that her confinement is unconstitutional on several grounds. (See Dkt. No. 1.) First, she alleges that her guilty plea was not freely or voluntarily given, due to her narcotic use several hours before the hearing. (Dkt. No. 1 at 7.) Next, Petitioner alleges that Mr. Gillespie provided ineffective assistance of counsel for three separate reasons: first, that Mr. Gillespie knew that Petitioner was under the influence of narcotics during her plea hearing and failed to inform Judge Theiler or postpone the proceedings; second, that Mr. Gillespie failed to argue for a downward variance in her sentence based on her minimal role in the criminal offense; and finally, that Mr. Gillespie, by representing that she would receive a specific sentence if she took a plea deal, induced Petitioner to enter into the deal. (See Dkt. No. 1.)


         A. Habeas Corpus Legal Standard

         To state a cognizable claim under 28 U.S.C. § 2255, a petitioner must assert that he or she is in custody in violation of the Constitution or laws of the United States, that the district court lacked jurisdiction, that the sentence exceeded the maximum allowed by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall grant a prompt hearing thereon.” 28 U.S.C. § 2255(b). A claim must be “so palpably incredible or patently frivolous as to warrant summary dismissal” in order to justify the refusal of an evidentiary hearing. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Petitioner raises two grounds in support of vacating her sentence: incompetency during her guilty plea, and ineffective assistance of counsel.

         B. Competency During Plea

         Petitioner argues that she did not plead guilty freely and voluntarily, because she was under the influence of the narcotic oxycodone during her plea hearing. (Dkt. No. 1 at 7.) At 6:00 a.m. on the morning of her plea hearing, prison staff gave Petitioner 10mg of oxycodone. (Dkt. No. 13-1 at 1.) During the hearing, which began at 11:00 a.m., Judge Theiler asked Petitioner if she understood the nature of the proceedings and the charges against her. (Dkt. No. 11-2 at 5.) She responded that she did. (Id.) Petitioner was asked if she understood the consequences of pleading guilty to the crimes that she was accused of. (Id. at 6.) She responded in the affirmative. (Id.) She was also asked if she was currently under the influence of any drug, medication, or alcohol. (Id. at 4.) She responded that she was not. (Id.) Petitioner now argues that she was not competent to answer any questions or plead guilty during her plea hearing, due to a combination of the effects of oxycodone and post-partum depression. (Dkt. No. 1 at 7.)

         Competency is defined as the ability to understand the proceedings and to assist counsel in preparing a defense. See Dusky v. United States, 362 U.S. 402, 402 (1960); see also Godinez v. Moran, 509 U.S. 389, 396 (1993). When allegations of intoxication made in a habeas corpus petition are grounded in reason, an evidentiary hearing may be necessary to determine if the petitioner was competent at the time of the plea hearing. United States v. Howard, 381 F.3d 873, 878 (9th Cir. 2004). As long as the allegations move beyond bald, conclusory, or incredible assertions, a hearing is required unless the petition, files, and record conclusively demonstrate that the petitioner was competent to plead guilty. Id. In this case, Respondent does not dispute that Petitioner ingested 10mg of oxycodone approximately five hours before her plea hearing. (Dkt. No. 11 at 4.) Oxycodone is a powerful narcotic that can affect one's ability to process information. Petitioner's assertion that she was under the influence of oxycodone at the time of the plea hearing is more than a bald or incredible assertion. Likewise, the record does not conclusively demonstrate that Petitioner was competent to plead guilty. Because Judge Theiler was unaware of Petitioner's narcotic use, she did not probe into Petitioner's competency other than a series of standard questions. (Dkt. No. 11-2 at 4.) Further, Respondent has not provided medical evidence that conclusively establishes that Petitioner was competent. Respondent only argues that Petitioner affirmatively stated that she was competent to enter a plea, and her statements now contradict the statements she gave under oath during the hearing. (See Dkt. No. 11.) This is evidentiary, but not conclusory. See Lopez v. United States, 439 F.2d 997, 999-1000 (9th Cir. 1971). The Court ORDERS an evidentiary hearing to determine the competency of Petitioner in understanding the nature and consequences of pleading guilty during her plea hearing.

         C. Ineffective Assistance of Counsel

         To allege ineffective assistance of counsel, a petitioner must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Deficient performance” is acts or omissions outside the wide range of professionally competent assistance. Id. at 690. To establish prejudice, a petitioner must allege that but for counsel's errors, she would either have gone to trial or received a better plea bargain. See United States v. Baramdyka, 95 F.3d 840, 846-47 (9th Cir. 1996). Petitioner alleges three grounds of ineffective assistance of counsel: (1) Mr. Gillespie's failure to inform the court that she was under the influence of oxycodone during the plea hearing; (2) his failure to argue for a downward variance ...

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