United States District Court, W.D. Washington, Tacoma
KENNETH P. DESCOTEAUX, Petitioner,
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
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
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
FACTUAL & PROCEDURAL HISTORY
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.
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.
Allegations and Investigation
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.
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., ¶
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.”).
April 22, 2016, Descoteaux was interviewed
again. 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,  the same day that
prosecutors filed a complaint against him in this District,
id., Dkt. 1.
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 (“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,
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.
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.
Sullivan's Role in Plea
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
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.
Hester's Role in Plea Negotiations
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.
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
Change of Plea Hearing
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
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
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 ...