United States District Court, W.D. Washington, Seattle
JESSICA L. ASHBY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
C. Coughenour United States District Judge.
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.
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.)
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.)
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.)
Habeas Corpus Legal Standard
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.
Competency During Plea
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.)
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.
Ineffective Assistance of Counsel
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 ...