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Gray v. United States

United States District Court, W.D. Texas, El Paso Division

July 23, 2019

RICHARD GRAY, Fed. Reg. No. 22708-380, Movant,



         On this day, the Court considered Movant Richard Gray's [hereinafter “Movant”] pro se “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody” (ECF No. 735) [hereinafter “Motion to Vacate”], filed on March 26, 2018; Movant's “Memorandum in Support of Section 2255 Motion” (ECF No. 750) [hereinafter “Memorandum in Support”], filed on May 18, 2018; and the Government's “Response to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody” (ECF No. 774) [hereinafter “Response”], filed on September 14, 2018, in the above-captioned cause. After due consideration, the Court is of the opinion that Movant's Motion to Vacate should be denied, for the reasons that follow. Additionally, the Court is of the opinion that Movant should be denied a certificate of appealability.


         On August 21, 2013, a grand jury returned an “Indictment” (ECF No. 16) charging Movant with one count of Sex Trafficking By Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1), (2) and (b)(1) and one count of Conspiracy to Sex Traffic Persons in violation of 18 U.S.C. § 1594(c). Then, on January 15, 2014, a grand jury charged Movant in a “Second Superseding Indictment” (ECF No. 138) with additional counts of Sex Trafficking By Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1), (2) and (b)(1), and Conspiracy to Sex Traffic Persons in violation of 18 U.S.C. § 1594(c). Additionally, the grand jury charged Movant with Sex Trafficking of Children in violation of 18 U.S.C. §§ 1591(a)(1), (2) and (b)(2) and Transportation for Prostitution in violation of 18 U.S.C. § 2421. Second Superseding Indictment at 5, 9.

         Attorney Edgar Holguin was initially appointed to represent Movant on behalf of the Federal Public Defender's office. Movant filed a “Motion to Withdraw Counsel of Record” (ECF No. 201), which was signed on March 18, 2014, and entered on March 24, 2014. The Court held a hearing on Movant's Motion to Withdraw Counsel of Record and granted the motion. Order Granting Mot. to Withdraw Counsel of Record, Mar. 26, 2014, ECF No. 253. Accordingly, Attorney Holguin's appointment was terminated, and Attorney Thomas Brady was substituted to represent Movant at trial. Id.

         On December 1, 2014, the Court held a Frye Hearing. See generally Resp. Ex. 21 (Motion Hearing Transcript). At the hearing, the Government put its plea offer-an offer of twenty-five years' imprisonment-on the record. Id. at 29:21-22. The Court reviewed the pre-plea PSR provided to the defendants and noted that, if the defendants were to go to trial and be found guilty, they would face a potential sentence of lifetime imprisonment. Id. at 33:1-5. After reviewing this information, Movant rejected the Government's plea offer. Id. at 43:5-8.

         On January 5, 2015, Jury Selection and Trial commenced. Minute Entry, ECF No. 497. On January 13, 2015, the parties concluded presenting evidence, and the Court charged the jury. Minute Entry, ECF No. 508. The jury completed deliberations on January 16, 2015, and reached a unanimous verdict. See Jury Note 10 (Sealed), ECF No. 529. The jury found Movant not guilty as to count 3 of the Indictment and guilty as to counts 4, 6, 9, and 11. Verdict, Jan. 16, 2015, ECF No. 531.

         On June 25, 2015, the Court held Movant's sentencing hearing. See generally Resp. Ex. 25 (Sentencing Hearing Transcript). The Court reviewed Movant's Presentence Investigation Report (PSR) and discussed Movant's offense level. Specifically, the individual offenses with the highest base offense level had a base offense level of 30 and an adjusted offense level of 38 because four points were added for the use of force; two points were added because of serious bodily injury during an assault in Killeen, Texas; and a two-level enhancement was applied due to the use of a computer. Id. at 5:8-19. Because there were multiple offenses, adding up to six units, Movant's final adjusted offense level was 44, and his criminal history category was two. Id. at 7:6-25. Because the Sentencing Guidelines' highest offense level is 43, any offense level that exceeds 43 is treated as a 43 pursuant to the guidelines; thus, Movant's offense level was treated as a 43. Id. at 8:1- 4. The corresponding guidelines' range for an offense level of 43 is life imprisonment. Id. The Court sentenced Movant to a guidelines' sentence of life imprisonment as to each of counts four, six, and nine, and to 120 months imprisonment as to count eleven, to be served concurrently. J. in a Criminal Case, June 30, 2015, ECF No. 628.

         On March 26, 2018, Movant filed his Motion to Vacate. Therein, Movant challenges his sentence based on ineffective assistance of counsel. Specifically, Movant asserts that his counsel provided constitutionally ineffective assistance when the attorney failed to: (1) properly advise Movant of his sentencing exposure and, as a result, Movant rejected the prosecutor's plea offer of twenty-five years' imprisonment; (2) tell Movant that he could plead guilty and receive a three-level downward adjustment to his sentence; (3) advise Movant that he could request a bench trial; (4) object to the jury charge on count six of the Second Superseding Indictment, which constructively amended the Indictment; (5) request Movant's Facebook evidence which would have rebutted the testimony against him; (6) object to the selection of a jury without any African American members; (7) advise Movant that the ultimate decision to testify was his; (8) secure evidence to impeach a witness; (9) move for a mistrial after the prosecution constructively amended count six of the Second Superseding Indictment; (10) secure an expert on the credibility of a witness; (11) object to the use of force sentencing enhancement; (12) obtain a mental expert who would have testified that Movant returned from Iraq with Posttraumatic Stress Disorder; and (13) ask the Court to consider Movant's age and object to the excessive sentence. Mot. to Vacate at 4-8, Mar. 26, 2018, ECF No. 735. For these reasons, Movant asks the Court to vacate his sentence and allow him the following relief: (1) accept the plea offer, (2) plead guilty to the Second Superseding Indictment, (3) receive a new trial, and/or (4) have a new sentencing hearing. Id. at 12.

         On May 18, 2018, Movant filed his Memorandum in Support, which provides Movant's legal theories supporting his Motion to Vacate. On September 14, 2018, the Government filed its Response.[1]


         A § 2255 motion “provides the primary means of collateral attack on a federal sentence.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)). Relief under § 2255 is warranted for errors that occurred at trial or at sentencing. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). Before a court will grant relief pursuant to § 2255, a movant must establish: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).

         A movant may collaterally attack a sentence by alleging ineffective assistance of counsel pursuant to the Sixth Amendment. The Sixth Amendment not only guarantees a criminal defendant the right to a speedy trial, but also the right to the effective assistance of counsel. Lee v. United States, 137 S.Ct. 1958, 1964 (2017). A court analyzes an ineffective assistance of counsel claim presented in a § 2255 motion under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001).

         Pursuant to the Strickland test, to succeed on a claim of ineffective assistance of counsel, a movant must prove: (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689-94. In other words, a movant must show that his counsel's performance was outside the broad range of what is considered reasonable assistance and that this deficient performance led to an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). The burden of proof is on the movant alleging ineffective assistance. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). If the movant fails to prove one prong, it is not necessary to analyze the other. See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (“A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.”); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) (“Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.”).

         III. ANALYSIS

         A. Counsel's Advice During Plea Bargaining

         “Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012) (citing Missouri v. Frye, 566 U.S. 134, 132 (2012)). The two-part test established in Strickland v. Washington applies; accordingly, successful challenges to guilty pleas based on ineffective assistance of counsel must establish that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced as a result. Id. at 162-63 (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).

         Thus, “[i]n the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Id. at 163. If a defendant alleges that he would have accepted a plea but for the advice of his counsel, then the defendant must show that there is a reasonable probability that: (1) “the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), ” (2) “the court would have accepted its terms, ” and (3) “the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 164.

         1. Advice regarding Movant's sentencing exposure

         First, Movant alleges that “Attorney Brady underestimated [Movant's] sentencing exposure.” Mot. to Vacate 5. Movant further avers that “but for the erroneous advise [sic], it is reasonably probable that he would have accepted the Government's plea offer of 25 years and waived his righ[t] to trial.” Id. Specifically, in his Memorandum in Support, Movant contends that his plea was not voluntary and intelligent because Attorney Brady's performance fell below an objective standard of reasonableness and that, absent his counsel's performance, Movant would have accepted a plea. Mem. in Support 4-5.

         As the Government concedes in its Response, Movant's eventual sentence was greater than the plea offer provided by the Government. See Resp. 7-8. Nonetheless, Movant has failed to establish that his counsel's objectively deficient performance led to Movant's rejection of the guilty plea. Instead, the record suggests that Movant received proper advice regarding the range of possible sentences and chose to reject the plea offer.

         On December 1, 2014, the Court held a Frye Hearing. See Resp. Ex. 21 (Mot. Hearing Tr.) at 28:17-37:25. The Court explained that “[a] Frye hearing, basically, is for the purpose of placing on the record the offer that the government has extended in the event that there is any interest on your part to enter a plea of guilty by virtue of a plea agreement” and that the reason for the hearing was, in part, that “defendants are entitled to know what is on the table and to indicate on the record whether they have been made aware of it and whether they accept it or prefer to go to trial.” Id. at 28:22-29:8.

         At the hearing, the Government's attorney stated on the record that the offer to Movant was “an 11(c)(1)(C) offer on Count 9 for 25 years.” Id. at 29:21-22. Attorney Brady stated that he “communicated [the offer] to Mr. Gray, and [Gray] remain[ed] adamant that [they] go to trial.” Id. at 30:25-31:1. Additionally, at the hearing, the Court noted that each defendant had, through counsel, requested to be provided with a pre-plea PSR. Id. at 32:21-22. The Court explained:

Basically, it's an unusual step, but it requires the probation office to look at the charge, to become familiar with the information through investigative reports that pre-plea PSR has suggested to you, as communicated through your counsel, that in the event that you were to go to trial and found to be guilty, that under the guidelines, the court would be asked to consider a sentence within a range of lifetime imprisonment, and each one of you has been made aware of that, I am sure.

Id. at 32:20-33:5. After the Court made clear that the sentencing range included the possibility of life imprisonment, Movant rejected the Government's offer. Id. at 34:7.

         Now, Movant avers that his attorney “was ineffective for misadvising Mr. Gray that if he went to trial the most he would get [would be] a maximum sentence of 360 months under the guideline.” Mem. in Support 9. He further argues that his counsel did not properly inform him of the maximum sentence. Id. However, Movant's assertion stands in direct contrast to the Frye hearing.

         During the hearing, Movant recognized that he may face a sentencing range that could include lifetime imprisonment and nonetheless chose to have a jury trial. Thus, Movant's assertion that he believed the maximum sentence would be 360 months lacks merit. For these reasons, the Court concludes that Movant's counsel advised him of the potential sentence range and that the counsel's performance was not objectively deficient. Moreover, the Court ensured that Movant understood his maximum possible sentence, and Movant rejected the plea offer. Because the record makes clear that Movant understood his potential sentence, Movant also cannot establish that he was prejudiced by Attorney Brady's alleged failure to communicate thoroughly about Movant's sentencing exposure. Accordingly, the Court declines to find that Attorney Brady's advice regarding Movant's potential sentence constituted ineffective assistance of counsel.

         2. Possibility that Movant could plead guilty and receive a three-level downward adjustment to his sentence

         Additionally, Movant argues that Attorney Brady “failed to advise [him] that he could openly plea[d] guilty to the indictment without a plea agreement and still receive a 3-level reduction for acceptance of responsibility.” Mot. to Vacate 5. He further claims that “[t]here is a big difference between being sentenced to a walking death sentence . . .and the sentence of 300 months cap offer which he could have achieved through a timely plea of guilty.” Mem. in Support 7.

         However, even if Attorney Brady did not discuss a possible three-level adjustment for acceptance of responsibility, Movant cannot show prejudice. When the Government placed its plea offer of 300 months' imprisonment on the record, Movant rejected the offer. At sentencing, the Court calculated Movant's total adjusted offense level as a 44.[2]Resp. Ex. 25 (Sentencing Tr.) at 7:23-25. In the event that Movant timely accepted responsibility and the Government moved for the third-level of a downward adjustment, Movant would have faced an offense level of 41. The corresponding guidelines' range is 324 to 405 months. United States Sentencing Comm'n, Sentencing Table (2014), manual/2014/2014sentencingtable.pdf. Although the corresponding range is lower than life imprisonment, the bottom of the guidelines' range for an offense level of 41 corresponds to a sentence that is longer in length than the sentence offered to Movant on the record. That is, 324 months is longer than 300 months. Movant elected to reject a plea offer of 300 months. Therefore, Movant may not credibly assert that he would have chosen to timely plead guilty in order to receive an adjustment for acceptance of responsibility and face a guidelines' range of 324 to 405 months. To the contrary, the record confirms that Movant elected to go to trial notwithstanding the fact that he therefore faced a longer sentence.

         For these reasons, Movant is unable to show that he faced prejudice. Having determined Movant cannot establish prejudice, it is unnecessary to consider whether Attorney Brady's performance in counseling his client about whether to plead guilty in light of a potential reduction for acceptance of responsibility was objectively reasonable. Movant cannot show prejudice; accordingly, he cannot establish ineffective assistance of counsel based on this theory.

         B. Counsel's Advice During Pre-Trial Proceedings

         1. Failure to advise Movant that he could request a bench trial

         Movant contends that “Attorney Brady could have and should have advised Mr. Gray that he could proceed to a ‘bench trial' on ‘stipulated facts.'” Mem. in Support 10. According to Movant, if he had been able to proceed with a bench trial, he may have retained eligibility for a downward sentencing adjustment based on acceptance of responsibility. Id.

         As the Court previously discussed in more detail, Movant cannot show that any possible three-level downward adjustment for acceptance of responsibility would have impacted his eventual sentence. Specifically, even if Movant received a downward adjustment, the guideline range for his total offense level would have nonetheless remained life imprisonment.

         Moreover, Federal Rule of Criminal Procedure 23 provides: “If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” As the Government discusses in its Response, Movant cannot establish that the Government and the Court would both agree to a bench trial. See Resp. 12. Without the ability to demonstrate that the requirements of Rule 23 would have been met if Defendant requested a bench trial, Defendant cannot prove that he was prejudiced by his counsel's alleged failure to advise Movant to proceed with a nonjury trial.

         In sum, Movant cannot establish that the requirements of Rule 23 would have been satisfied had he sought a nonjury trial. Additionally, Movant's guideline sentencing range would have remained the same even if Movant was able to achieve a three-level reduction for acceptance of responsibility. Thus, Movant cannot show that he faced prejudice as a result of counsel's allegedly deficient advice. Accordingly, the Court need not analyze the Strickland performance prong, as Movant cannot establish ineffective assistance of counsel based on the alleged lack of advice to proceed with a nonjury trial.

         2. Failure to object ...

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