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Gray v. United States

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

August 6, 2019

KIMBERLY B. GRAY, Petitioner,



         This 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.


         In 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.

         Agents 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.

         The Court appointed attorney James B. Feldman (“Feldman” or “Gray's counsel”) to represent Gray.[1] 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).

         Gray's 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.

         On June 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.

         The Court inquired about Gray's preparation for the hearing as follows:

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.[2] 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.” Id.

         Gray 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 18.

         On 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).

         Gray's 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.

         The 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.

         Gray did not pursue a direct appeal.


         On June 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.[3]

         The 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 a ...

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