United States District Court, W.D. Washington, Tacoma
KIMBERLY B. GRAY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING IN PART PETITIONER'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE AND GRANTING
EVIDENTIARY HEARING ON GROUND TWO
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Kimberly
Gray's (“Gray”) motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. Dkt. 1. The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby denies the motion in part, grants an evidentiary
hearing on ground two, and reserves ruling on the merits of
ground two for the reasons stated herein. The Court further
orders Gray to show cause why the remaining grounds for
relief should not be dismissed for failure to prosecute.
December 2016, federal agents investigating drug trafficking
arrested Gray at her home in Port Orchard, Washington.
United States v. Gray, Cause No. 3:16-cr-5600-BHS
(“CR”), Dkt. 372 ¶ 9. When agents entered
the home, they discovered Gray in a bathroom attempting to
flush methamphetamine down the toilet. Id. Agents
recovered 304.1 grams of methamphetamine from the bathroom.
Id. Agents also discovered 364.3 grams of
methamphetamine in a bedroom closet. Id.
searched Gray's home as part of an investigation into a
drug trafficking organization (“DTO”) led by Jose
Mozqueda Vasquez. Id. Gray “served as a
redistributor for the Mozqueda Vasquez DTO.”
Id. “As a DTO redistributor, [Gray] regularly
obtained methamphetamine from Mozqueda Vasquez, or another
DTO member, and distributed it to others in the community on
behalf of the DTO.” Id. “More
specifically, [Gray] would typically obtain five to ten
pounds of methamphetamine per month. [Gray] then
redistributed the methamphetamine to approximately 15 other
individuals in the community.” Id.
Court appointed attorney James B. Feldman
(“Feldman” or “Gray's counsel”)
to represent Gray. CR, Dkt. 49. On April 13, 2017, the grand
jury returned a superseding indictment charging Gray with
conspiracy to distribute a controlled substance, distribution
of a controlled substance, and possession of a controlled
substance with intent to distribute. Id., Dkt. 273.
The latter two charges each carried a mandatory minimum
sentence of ten years. 21 U.S.C. § 846(b)(1)(A).
counsel negotiated a plea agreement on her behalf. Under the
terms of the agreement, Gray agreed to plead guilty to the
lesser-included offense of conspiracy to distribute a
controlled substance which had a mandatory minimum sentence
of five years. CR, Dkt. 372; 21 U.S.C. § 841(b)(1)(B).
In exchange for Gray's plea the Government agreed to
dismiss the remaining counts, each of which carried mandatory
ten-year sentences. CR, Dkt. 273. The Government agreed to
recommend a sentence no longer than 96 months on the
conspiracy charge. Id.
14, 2017, the Court held a change of plea hearing and
conducted a guilty plea colloquy in accordance with
Fed.R.Civ.P. 11. Id., Dkt. 371.
Court inquired about Gray's preparation for the hearing
THE COURT: Have you had time, then, to prepare for this
hearing by going over with [counsel] in detail the plea
agreement and go over your case thoroughly enough so that you
think you are fully prepared to enter a plea here?
THE DEFENDANT: Yes, Your Honor.
Dkt. 20-5, Transcript of Change of Plea Hearing (“Plea
Tr.”) at 5. The Court further advised Gray she could
have “whatever time you want and need [with counsel] in
order to be confident that you are ready to proceed.”
admitted that she redistributed a minimum of 5 kilograms of
methamphetamine during her participation in the conspiracy.
CR, Dkt. 372 ¶ 9. The Court found a factual basis for
the plea, found that Gray entered the plea knowingly,
intelligently, and voluntarily, and found her guilty of
conspiracy to distribute a controlled substance. Plea Tr. at
September 25, 2017, the Court sentenced Gray to 72 months of
imprisonment and four years of supervised release. CR, Dkt.
514. The Court accepted the parties' stipulations to a
base offense level of 34 and to a 3-level reduction for
acceptance of responsibility, resulting in a net offense
level of 31. Dkt. 17-1, Transcript of Sentencing Hearing
(“Sent. Tr.”) at 4. However, Gray objected to the
probation officer's conclusion that her prior convictions
placed her in criminal history category III. Id. at
6. The Court sustained Gray's objection and reduced her
criminal history category to II, thereby determining the
applicable guideline sentencing range to be 121-151 months.
Id.; see also United States Sentencing
Commission, Guidelines Manual (“USSG”),
Ch. 5, Part A (Nov. 2016) (showing sentencing range for
offender with net offense level of 31 and criminal history
category of II).
counsel advocated for the minimum sentence under law, 60
months, while the Government asked the Court to impose 96
months. Sent. Tr. at 11-12. Gray's counsel supported his
60-month request by arguing that (1) Gray had successfully
completed treatment for alcoholism at the pretrial stage, (2)
Gray's criminal history was limited and non-violent, and
(3) a 60-month sentence would sufficiently deter Gray from
future criminal conduct due to the lengthy separation from
her children. Id. at 11-13.
Government filed an exhibit prior to sentencing summarizing
the roles of the members of the DTO. Dkt. 20-3. The exhibit
characterized Gray as a “redistributor” of
methamphetamine. Id. Gray's counsel did not
request a two-level reduction under USSG § 3B1.2(b) for
her being a minor participant in the DTO at sentencing. When
imposing the sentence, the Court referred to Gray as a
“significant redistributor” of methamphetamine,
Sent. Tr. at 15, and noted that “the amount of drugs
that were involved here could clearly have lead [sic] to a
much longer prison sentence than is the one that is being
recommended here, ” id. at 16.
did not pursue a direct appeal.
4, 2018, the Court received a motion for minor role reduction
from Gray acting pro se. CR, Dkt. 719. The Court forwarded
the motion to Gray's counsel. Id. On June 7,
2018, Gray's counsel wrote to her advising that if she
wished to pursue the minor role claim, it was his belief she
“would have to file a Writ under 28 U.S.C. § 2255
and allege ineffective assistance of counsel for my not
arguing that you were deserving of a minor role
adjustment.” Dkt. 20-4. On June 11, 2018, Gray filed a
pro se § 2255 petition asserting ineffective assistance
of counsel based on ten grounds. Dkt. 1.
Court allowed Gray's counsel to withdraw, CR, Dkt. 733,
and appointed attorney Suzanne Elliott
(“Elliott”) to represent Gray. Dkt. 10. After her
appointment, Elliott prepared all of Gray's submissions
to the court. On October 23, 2018, the parties filed a
stipulated motion amending the petition. Dkt. 14. The
stipulation addressed only three of the ten grounds in the
original petition; ground ten was withdrawn, and ground one
and ground nine were amended as follows:
Ground One: Gray asks to amend her petition
to clarify and allege that trial counsel's failure to
review and discuss the discovery materials with her
prejudicially impacted her sentencing presentation.
Ground Nine: Gray asks to amend her petition
to clarify that trial counsel did not meet with her enough to
properly discuss the case against her and benefits of making