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Descoteaux v. United States

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

November 22, 2019

KENNETH P. DESCOTEAUX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE IN PART, GRANTING EVIDENTIARY HEARING AND RESERVING RULING IN PART, AND APPOINTING COUNSEL

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Kenneth Descoteaux's (“Descoteaux”) 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 files and hereby denies the motion in part, grants an evidentiary hearing reserving ruling on the merits in part, and appoints counsel for Descoteaux for the reasons stated herein.

         I. FACTUAL & PROCEDURAL HISTORY

         A. Factual Background

         On April 28, 2016, Descoteaux was charged by complaint in the Western District of Washington with one count of aggravated sexual abuse of a minor. United States v. Descoteaux, No. 16-cr-5246-BHS (“2016 Case”), Dkt. 1. He was arrested in Wyoming the same day. Id., Dkt. 4. On May 25, 2016, Descoteaux was charged by indictment in this district with three counts of aggravated sexual abuse of a minor, abusive sexual contact with a minor, and assault. Id., Dkt. 6.

         On June 9, 2016, Descoteaux was also indicted by a grand jury sitting in the Western District of Louisiana, Lake Charles Division. See United States v. Descoteaux, No. 16-cr-0141-PM-KK. The Louisiana indictment charged Descoteaux with two counts of aggravated sexual abuse of a minor, two counts of indecent behavior with a juvenile, and assault. Id.

         1. Allegations and Investigation

         The charges in each indictment were based on allegations that Descoteaux subjected his minor stepdaughter (“MV”) to repeated acts of sexual abuse occurring between 2011 and 2015 in Louisiana and Washington. 2016 Case, Dkt. 1. During this period, Descoteaux was married to MV's mother, Jayme Howard (“Howard”), and the family lived at Fort Polk in Louisiana and at Joint Base Lewis-McChord in Washington. Id., Dkt. 43. From 2014 to 2015, Howard was deployed overseas, leaving MV alone with Descoteaux as her sole caretaker. Id., Dkt. 1. By 2016, the family had moved to Cheyenne, Wyoming.

         In February 2016, a social worker at MV's elementary school contacted law enforcement after MV told a classmate about the abuse. Id. An investigation ensued, and in mid-February MV “disclosed to the [child forensic interviewer]” that Descoteaux “had sexually abused her over a period of 3 years . . . and that the abuse started when she was 8-years-old.” Id., ¶ 9.

         Investigators interviewed Descoteaux several times. Initially, he denied having any sexual contact with MV when questioned by law enforcement but in a later interview told police that it was possible sexual contact had occurred if MV had initiated that contact while he was extremely intoxicated. Id., ¶¶ 7, 15-17 (“I'm not denying it happened, I'm admitting that if she's saying this, then I'm guilty.”).

         On April 22, 2016, Descoteaux was interviewed again.[1] Id., ¶ 18. Although the record contains only scant documentation of the conditions of that interview, the complaint provides that after receiving a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Descoteaux “freely and voluntarily” waived his rights. 2016 Case, Dkt. 1, ¶ 18. He then provided a statement to a FBI agent acknowledging “that he engaged in 65 instances of sexual acts with [MV] while they were living in Louisiana and Washington.” Id. After he confessed, the FBI agent allowed Descoteaux to leave. He was arrested six days later on April 28, 2016, id., Dkt. 4 at 7, [2] the same day that prosecutors filed a complaint against him in this District, id., Dkt. 1.

         After his arrest, Descoteaux contacted Howard from a recorded phone line. One conversation was as follows:

MS. HOWARD: Why'd you do this to us, Ken?
MR. DESCOTEAUX: I don't know. I mean, like at the time, when it was happening, I knew it was wrong. But at the same time, it was like -- I knew it was wrong, but it was like (Inaudible). So it felt wrong, but it just didn't feel that wrong, you know.
MS. HOWARD: Yeah.
MR. DESCOTEAUX: So it's like, oh, yeah, hey. She -- she wants it; she likes it, too. Okay. You know what I mean? It's one of those things where -- just poor judgment, lack of -- you know, [MV] really did give me all the love and attention that I craved in our marriage. What you didn't give me, [MV] gave me. And that's -- you know, I know it's wrong.

Id., Dkt. 14-3 at 8-9. In another conversation with his mother, Linda Morin[3] (“Morin”), Descoteaux acknowledged abusing MV as follows:

MR. DESCOTEAUX: . . . [Howard] was . . . you know, she would ignore me and stuff like that. [MV] is -- I'm not saying it's her fault. But [MV] is the one that actually came on me to me and stuff like that. So I should have known better, but that's what happened, so.
MS. MORIN: Yes, you should have known better.
MR. DESCOTEAUX: Yep, I'm not -- but anyway, so that's what happened. And, um, I was honest with Jayme about it. And [MV] forgiven me. And we've talked about it. And she's not like a bit -- least bit disturbed, or you know, damaged at all, you know. So -- and we've -
MS. MORIN: Oh.
MR. DESCOTEAUX: -- all talked about it. And - and things were going straight. And then, you know - and that's when the -- the government got involved. And you know how the government screws everything up in my life. So that's what they're doing now.

Id. at 12.[4]

         The District of Wyoming issued an order prohibiting Descoteaux from contacting MV and Howard in May 2016. Id., Dkt. 22, Ex. A. This Court appointed Assistant Federal Public Defender Linda Sullivan (“Sullivan”) to represent Descoteaux on the charges pending in the Washington indictment. Id., Dkt. 11.

         2. Sullivan's Role in Plea Negotiations[5]

         Sullivan began negotiating a plea agreement on Descoteaux's behalf. By January 2017, the parties had reached an agreement to transfer the Louisiana indictment to this district pursuant to Fed. R. Crim. P. 20 in anticipation of a joint resolution of the charges then pending in two districts. 2016 Case, Dkt. 27. In February 2017 the Louisiana charges were transferred to this District and opened in a new case as United States v. Descoteaux, No. 17-cr-5074-BHS (“2017 Case”).

         Less than a month after transfer of the Louisiana indictment, Sullivan moved to withdraw as Descoteaux's attorney “due to a breakdown in the attorney-client relationship.” 2016 Case, Dkts. 30, 31. In February 2017, the Court granted the motion and terminated Sullivan's representation. Id., Dkt. 34.

         3. Hester's Role in Plea Negotiations

         On March 3, 2017, the Court appointed attorney Lance Hester (“Hester”) to represent Descoteaux. Id., Dkt. 36. Descoteaux alleges that Hester advised him that he was bound by Sullivan's plea negotiations. Dkt. 1 at 13. The Government asserts that Hester's plea agreement was “similar to [Sullivan's agreement] in nearly all respects.” Dkt. 7. Ultimately, Hester negotiated a plea agreement that allowed Descoteaux to plead guilty to one count from each indictment, specifically, abusive sexual contact with a child in violation of 18 U.S.C. §§ 2244(a)(5), 2246(3), and 7 (count 4 of the Washington indictment) and indecent behavior with a juvenile in violation of 18 U.S.C. §§ 7 and 13, and Louisiana Revised Statute §§ 14.81(A)(1) and (H)(2) (count 3 of the Louisiana indictment) (collectively, the “charged offenses”). 2016 Case, Dkt. 43, ¶ 1. In exchange, the Government agreed to dismiss the remaining counts from both indictments. Id.

         The parties stipulated to the factual basis for the plea agreement. Id., ¶ 6. Within the stipulated statement of facts, Descoteaux admitted to multiple acts of sexual abuse against MV. Id. Descoteaux further forfeited his right to appeal and to collaterally attack the conviction, “except as it may relate to the effectiveness of legal representation.” Id. at 11-12.

         4. Change of Plea Hearing

         On April 27, 2017, Descoteaux pled guilty to both charges under the terms of Hester's plea agreement. 2016 Case, Dkt. 42; 2017 Case, Dkt. 9. The undersigned presided over the hearing and conducted a plea colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure (“Rule 11”). 2016 Case, Dkt. 42; 2017 Case, Dkt. 9. The Court placed Descoteaux under oath for the hearing. Dkt. 7-1 at 7. The prosecutor read the elements and penalties of each offense aloud into the record. Id. at 9-12. The Court then inquired as follows:

THE COURT: . . . Now, Mr. Descoteaux, do you have any questions about what the charges are that are set out in the plea agreement that you are intending to plead guilty to or what the elements of those charges are or what the penalties are that can be imposed here?
THE DEFENDANT: No questions, Your Honor.

Id. at 12. The prosecutor then read the detailed stipulated offense conduct facts into the record. Id. at 13-16. The Court then inquired as follows:

THE COURT: All right. Mr. Descoteaux, first I will note in the original plea agreement on page 5, line 20, there was a partial deletion there and the date of that deletion. So with that change, now, you've been through, you've read through this statement of facts and you've heard them re-read here, I think almost verbatim; are these facts true and accurate?
THE DEFENDANT: Yes, Your Honor.

Id. at 16. Descoteaux later affirmed under oath that he was guilty of the charged offenses. Id. at 24. The Court found that Descoteaux “fully underst[ood] this plea agreement and all the rights that are set out in this plea agreement that we've gone over this morning.” Id. at 25. The Court also found “a factual basis for each of the elements of the two charges that you have pled guilty to . . .” Id. The Court further concluded that Descoteaux's plea of guilty was knowing, intelligent, and voluntary. Id.

         5. Sentencing Hearing

         On September 5, 2017, the Court held a sentencing hearing and determined that Descoteaux's net offense level was 39 and that his criminal history category was I. Based on these findings, Descoteaux faced a guideline sentencing range of 262 to 327 months. Dkt. 7-1 at 34; see also United States Sentencing Commission, Guidelines Manual, Ch. 5, Part A (Nov. 2016) (showing sentencing guideline for offender with net offense level of 39 and criminal ...


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