Opinion
No. 2:09-cr-0201 WBS AC
10-30-2014
UNITED STATES OF AMERICA, Respondent, v. STEPHEN M. KRAUT, Petitioner.
FINDINGS AND RECOMMENDATIONS
Petitioner Stephen M. Kraut is a federal prisoner proceeding in pro per with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 82. Petitioner states five claims for relief, each of which alleges that trial counsel provided ineffective assistance in violation of petitioner's Sixth Amendment rights. Respondent has answered. ECF Nos. 94, 95. For the reasons set forth below, the undersigned recommends that the petition be dismissed for lack of jurisdiction in light of petitioner's waiver of collateral review.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
On April 30, 2009, petitioner was charged with bank fraud in a 15-count indictment. ECF No. 1. The indictment alleged that petitioner, co-owner and general manager of a car dealership, had obtained financing from First Hawaiian Bank for the purchase of vehicles from third-party vendors for resale. From 2005 through 2007, petitioner obtained credit advances from First Hawaiian for the purchase of specific cars to add to the dealership's inventory, in which the bank was to obtain an interest. Petitioner did not in fact purchase many of the specified cars. He submitted falsified documents to First Hawaiian to make it look as though all the cars had been purchased and "floored" (placed for sale). Petitioner failed to pay down the line of credit. He submitted falsified financial statements to the bank to cover up his looming insolvency and ensure continuing advances. He also deceived First Hawaiian Bank auditors who conducted inventory reviews. By means of this vehicle flooring inventory scheme, petitioner fraudulently obtained funds to benefit himself and his personal business ventures. Id.
The "Automobile Flooring and Security Agreement" was initially made with Citibank (West) FSB in 2005. First Hawaiian subsequently assumed the contract and later executed an agreement directly with petitioner.
B. The Change of Plea
On January 14, 2011, he appeared before the Hon. Edward J. Garcia for a change of plea. There was no plea agreement. Following the Rule 11 colloquy and petitioner's plea of guilty, the court was informed that the parties did not agree regarding the factual basis for the plea. Counsel for the government read a lengthy factual basis into the record, and defense counsel stated that that many of the stated facts, which would affect sentencing, were disputed. Counsel for the government stated his belief that the facts in dispute were relevant to intent. Judge Garcia set aside the plea. ECF No. 48 (minute order); ECF No. 95-9 (Transcript of Proceeding of 1/14/11).
On January 21, 2011, petitioner appeared again and entered a guilty plea to the indictment. ECF No. 51. The parties submitted a stipulated factual basis, which was signed by petitioner. ECF No. 95-10 (Transcript of Proceedings of 1/21/11); ECF No. 95-1(Factual Basis filed 1/21/11). This time the plea was accepted.
C. Sentencing Proceedings
Sentencing was continued multiple times. The requests for continuance indicated that the defense had received a draft presentence report which recommended a sentence of 188 months; that the defense expert was encountering difficulties in accessing and analyzing records related to loss calculation; and that the parties were exploring the possibility of stipulating to a loss amount. ECF Nos. 51, 53, 55. On October 13, 2011, the parties informed the court that they were "in the final negotiations of a potential agreement regarding certain sentencing enhancements." ECF No. 59. On November 30, 2011, the parties jointly represented that they were pursuing "a potential sentencing agreement" and were "close to resolving disputed issues." ECF No. 61. On January 6, 2012, the parties reported in another stipulation to continue sentencing that they "had reached a tentative sentencing agreement" and were "providing information to probation to finalize the pre-sentence report." ECF No. 63.
On January 31, 2012, petitioner and his counsel signed the sentencing agreement, which was submitted to the court at the sentencing hearing on March 9, 2012. ECF No. 65 at 1, 7. The agreement contained, in relevant part, the following stipulations regarding sentencing guidelines variables:
The docket refers to the Sentencing Agreement in error as a Plea Agreement. ECF No. 65. As noted above, petitioner's change of plea had occurred more than a year prior, without a plea agreement.
2. Specific Offense Characteristics (Loss): The amount of loss foreseeable to defendant Kraut is between $4,563,406 and $6,453,479, resulting in the addition of 18 offense levels under §2B1.1(b)(1(J).ECF No. 65 at 3.
3. Specific Offense Characteristics (Sophisticated Means): The parties agree that the offense involved the use of sophisticated means, so a two level increase applies under §2B1.1(b)(9)(C).
4. Role in the Offense Adjustment: The government may argue for a four level upward adjustment for role in the offense under §3B1.1(c). The defendant agrees that a two-level upward adjustment is merited, but may oppose any further upward adjustment.
5. Abuse of Position of Trust: The parties stipulate and agree that a two level increase applies under §3B1.3.
The sentencing agreement further provided that "[t]he defendant agrees that the correct applicable guideline offense level, after acceptance of responsibility, is no less than level 28, but not more than level 30." Id. at 4. The government agreed that the highest applicable offense level was 30, and agreed to recommend the low end of the resulting advisory guidelines range, 98 months. Id. Because petitioner had pled open to all counts, the agreement permitted the defense to argue for a sentence below the applicable guidelines range. Id.
The sentencing agreement contained the following waiver of appeal and collateral attack:
Waiver of Appeal and Collateral Attack: The defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of this sentencing agreement, however, to give up his right to appeal the conviction. So long as his sentence is no longer than 121 months (the high end of level 30), the defendant also agrees as part of this agreement to give up the right to appeal all aspects of the sentence imposed. Defendant specifically gives up his right to appeal any order of restitution the Court may impose.ECF No. 65 at 5-6.
Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.
Citations to court documents refer to the page numbers assigned by the court's electronic docketing system and not those assigned by the parties.
The PSR was consistent with the sentencing agreement regarding loss amount, sophisticated means, and abuse of trust. The probation offer recommended a four-level role adjustment. The resulting total offense level was 30, with a consequent advisory guideline range of 97 to 121 months imprisonment. The probation officer recommended a 121 month sentence. Pursuant to the sentencing agreement, the government requested a sentence of 97 months. A defense sentencing memorandum urged the court not to impose more than 97 months, and did not argue for a below-guidelines sentence. ECF No. 64. Judge Garcia imposed a sentence of 97 months, as well as restitution in the amount of $4,563,079.36.
At the end of the sentencing hearing, Judge Garcia advised petitioner of his appeal rights. ECF No. 95-17 at 14. The prosecutor noted for the record that appeal had been waived in the sentencing agreement. Id. at 15. Judge Garcia noted, and the government acknowledged, that the waiver had not been part of the Rule 11 proceeding. Id.
On March 21, 2012, petitioner filed a notice of appeal. The appeal was voluntarily dismissed on July 31, 2012. ECF No. 81.
The instant application for relief was filed on March 14, 2013, asserting five claims of ineffective assistance of counsel. ECF No. 82. The United States answered, asserting that petitioner has waived collateral attack, and that all claims are subject to summary dismissal as meritless. ECF No. 94.
II. LEGAL STANDARDS
A. Review Under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." A section 2255 motion is the customary procedure for challenging the effectiveness of trial counsel under the Sixth Amendment. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991).
To establish a constitutional violation based on ineffective assistance of counsel, a petitioner must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 694 (1984). Unreasonable advice regarding a favorable plea offer constitutes deficient performance under Strickland. See Lafler v. Cooper, 132 S.Ct. 1376, 1390 (2012). To establish prejudice in this context, a petitioner must show a reasonable probability that both he and the trial court would have accepted the forfeited plea bargain, and that it would have resulted in a lesser sentence. Id. at 1391.
If the court finds that petitioner's allegations are sufficient to support both prongs of the Strickland test, "a district court must grant a hearing to determine the validity of a petition brought under section 2255, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). In other words, an evidentiary hearing is required if (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). No hearing is necessary if the petitioner's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996), cert. denied, 520 U.S. 1269 (1997).
B. Jurisdiction and Waiver Of Post-Conviction Review
The right to appeal or to seek collateral relief may be waived in a plea or sentencing agreement. United States v. Portillo-Cano, 192 F.3d 1246, 1249 (9th Cir. 1999); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). Such a waiver is enforceable if (1) the language of the waiver encompasses the defendant's right to review on the grounds raised, and (2) the waiver was knowing and voluntary. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.), cert. denied, 546 U.S. 883 (2005). A valid waiver of post-conviction review deprives the court of jurisdiction to entertain an appeal or motion under § 2255. United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (valid waiver precludes appellate jurisdiction); Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005), cert. denied, 547 U.S. 1074 (2006) (valid waiver precludes habeas jurisdiction).
"The sole test of a waiver's validity is whether it was knowingly and voluntarily made." United States v. Anglin, 215 F.3d 1064, 1068 (9th Cir. 2000). Waiver of the right to post-conviction judicial review is thus unenforceable with respect to an ineffective assistance of counsel ("IAC") claim implicating the voluntariness of the waiver itself. Washington v. Lampert, 422 F.3d at 871 (waiver does not bar claim that sentencing stipulation was involuntary as the result of counsel's coercion and misrepresentation of consequences). Waivers of post-conviction review "must 'stand or fall with the agreement of which they are a part.'" Portillo-Cano, 192 F.3d at 1250 (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)).
III. DISCUSSION
The government contends that petitioner's waiver of § 2255 review in the sentencing agreement bars this court's consideration of the motion. ECF No. 94 (answer) at 15-18. Petitioner argues that the waiver is unenforceable because it was not voluntary and was the result of ineffective assistance of counsel. ECF No. 97 (reply). Because a valid waiver deprives the court of jurisdiction, Washington v. Lampert, 422 F.3d at 869, this issue must be resolved at the outset.
A. Voluntariness of Waiver
1. Petitioner's Claims Do Not Implicate the Voluntariness of the Waiver
The sentencing agreement in this case explicitly waived petitioner's right to file a motion under 28 U.S.C. § 2255 challenging his sentence. ECF No. 65 at 5-6. Because the waiver by its terms encompasses the claims raised here, it is enforceable if it was knowingly and voluntarily made. Jeronimo, 398 F.3d at 1153; Anglin, 215 F.3d at 1068. Although petitioner argues in conclusory terms that his waiver was involuntary as the result of ineffective assistance of counsel, none of petitioner's IAC claims directly or indirectly implicate the voluntariness of the waiver itself or the sentencing agreement of which it is a part.
Petitioner's first ground for relief alleges that trial counsel, Shari Rusk, unreasonably advised petitioner to reject a plea offer that was extended in 2010. ECF No. 82 at 7. Petitioner alleges that this failure prejudiced him because his plea, entered in 2011 without the benefit of an agreement, exposed him to a sentence far in excess of what he would have received under the forfeited bargain. This claim has no bearing on the validity of the subsequent wavier of collateral attack contained in the 2012 sentencing agreement. Ineffective assistance in a previous phase of the case, regarding a distinct decision by the defense made under a distinct set of circumstances, does not implicate the voluntariness of the sentencing agreement or waiver. Compare Jeronimo, 398 F.3d at 1156 n. 4 (recognizing that waiver in plea agreement might not bar a § 2255 claim that counsel unreasonably failed to advise regarding consequences of that plea, rendering both the plea and attendant waiver involuntary). Because petitioner's first claim alleges ineffective assistance in relation to the 2010 decision to reject a plea offer, and does not suggest ineffective assistance in relation to the 2012 decision to waive post-conviction review and agree to a 97 month sentence, the claim does not affect the validity of the waiver.
Petitioner does not identify the plea offer by date, but describes it as an offer involving a guidelines range of 63-78 months, and attaches an unsigned and undated agreement consistent with his allegations. ECF No. 82 at 7, 12-27. The government acknowledges that this offer was made, and provides documentation that it was sent to counsel on August 25, 2010 and remained open until September 24, 2010. ECF No. 95-2 (email to Shari Rusk from AUSA Russell Carlberg, with attached proposed plea agreement).
Petitioner's other ineffective assistance claims all go to counsel's failure to challenge specific matters in the Presentence Report ("PSR"). Ground Two alleges that counsel was ineffective in failing to challenge nine alleged factual inaccuracies in the PSR. ECF No. 82 at 8-10. The final PSR was issued on February 2, 2012, in light of the Sentencing Agreement that had already been signed by the defendant and his counsel. See PSR at 2, 3 at ¶ 2; ECF No. 65 (Sentencing Agreement) at 7. At the sentencing hearing on March 9, 2012, defense counsel confirmed that there were no objections to the PSR. ECF No. 95-17 at 6. Ground Two does not implicate the validity of the sentencing agreement or the voluntariness of the waiver. To the extent petitioner contends that the alleged factual inaccuracies in the PSR led to improper guidelines calculations, this claim merges with petitioner's final three claims.
Grounds Three, Four and Five involve counsel's failure to challenge the PSR's guidelines calculations regarding certain offense level enhancements (for sophisticated means, role in the offense, and abuse of trust, respectively). ECF No. 82 at 10-11. Petitioner does not directly attack the sentencing agreement or contend that counsel rendered ineffective assistance in negotiating it or advising him to accept it; he challenges only counsel's failure to dispute the probation officer's Guidelines scoring. However, the sentencing agreement contained stipulations regarding sophisticated means, role in the offense, and abuse of trust. Those stipulations, which petitioner accepted by signing the agreement before the PSR was issued, and in exchange for which he received a bottom of the guidelines recommendation (and sentence), foreclose his claims of IAC in failing to object to the PSR. For the same reason, these claims do not imply the invalidity of the waiver.
Petitioner appears to believe that any assertion of ineffective assistance as grounds for relief renders his waiver unenforceable. That is not the case. Where ineffective assistance allegations implicate the validity of the waiver, the court can and must consider the merits of the claim. See Washington v. Lampert, 422 F.3d at 871 (waiver not enforceable as to claim that counsel coerced petitioner's agreement to the sentencing stipulation and affirmatively misled him about the consequences). Where the allegations go to matters that do not implicate the validity of the waiver, however, the waiver remains enforceable. See United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (collecting cases), cert. denied, 534 U.S. 1085 (2002). This approach is consistent with the underlying principle that "[t]he sole test of a waiver's validity is whether it was knowingly and voluntarily made." Anglin, 215 F.3d at 1068 (9th Cir. 2000). For all the reasons explained above, the undersigned finds that none of petitioner's claims implicate the voluntariness of his sentencing agreement. The waiver is therefore enforceable.
2. The Waiver Was Voluntary
To the extent if any that petitioner has properly presented a claim or theory that the sentencing agreement itself was involuntary, that assertion is belied by the record. See Blaylock, 20 F.3d at 1465 (summary adjudication appropriate where record conclusively demonstrates petitioner not entitled to relief).
First, the voluntariness of a plea or sentencing agreement turns primarily on the defendant's awareness of the agreement's consequences. See Brady v. United States, 397 U.S. 742, 748 (1970); Torrey v. Estelle, 842 F.2d 234, 235, 237 (9th Cir. 1988). Petitioner signed the sentencing agreement with full knowledge of its stipulations regarding offense level adjustments and resulting Guidelines range, which were explicitly set forth in that document (ECF No. 65 at 3-4) and which petitioner attested he had read and discussed with counsel. He does not claim otherwise here.
Petitioner's signature on the agreement follows this statement: "I have read this Sentencing Agreement and carefully reviewed every part of it with my attorney. I understand it, and I voluntarily agree to it. Further, I have consulted with my attorney and fully understand my rights with respect to the provisions of the sentencing Guidelines that may apply to my case. No other promises or inducements have been made to me, other than those contained in this Sentencing Agreement. In addition, not one has threatened or forced me in any way to enter into this Sentencing Agreement. Finally, I am satisfied with the representation of my attorney in this case." ECF No. 65 at 7. Counsel also signed the agreement, stating that she had discussed it fully with her client. Id. at 6-7.
Second, petitioner attested to the voluntariness of the agreement in the agreement itself. He has presented no evidence, and makes no factual allegations, contrary to his representations in the agreement that he had read it, understood it, and signed it freely and without inducement or coercion.
See n. 8, supra.
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Third, petitioner said nothing at the sentencing hearing to indicate that the agreement he had signed two months previously was not entered voluntarily. See ECF No. 95-17. The Sentencing Agreement was not part of a plea bargain, so there had been no Rule 11 colloquy. There is accordingly no finding of voluntariness by the trial judge on the record. Petitioner, however, did not challenge the terms of the agreement in open court, object to the Guidelines scoring, or use his allocution to express surprise or dissatisfaction with the outcome. Id.
Finally, petitioner's assertion that the agreement was involuntary as the result of ineffective assistance is entirely conclusory. He has identified no evidence and alleged no facts that would demonstrate counsel induced his agreement to the sentencing deal by grossly mischaracterizing the likely outcome. See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). He has not demonstrated that counsel gave him any advice regarding the sentencing agreement that was outside "the range of competence demanded of attorneys in criminal cases." See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Accordingly, petitioner has failed to present even a prima facie case of an involuntary agreement resulting from the ineffective assistance of counsel.
For these reasons, the undersigned finds that the waiver was voluntary and therefore is enforceable.
B. Advisement of Appeal Rights
At the conclusion of the judgment and sentencing hearing, the following exchange took place:
THE COURT: If you wish to appeal this judgment today, you may do so. However, you must file your notice of appeal with the clerk of the court within 14 days of today in writing. There's a fee for that. If you can't afford it, it will be waived. That is, you don't have to pay it. And if you want me to appoint an attorney to represent you on appeal I'll do so at no initial cost to you.ECF No. 95-17 at 14-15.
Do you understand your appeal rights?
THE DEFENDANT: Yes.
MR. CARLBERG: You Honor, I may note for the record that at least in our sentencing agreement, he's waived appeal. I know it's
not part of a Rule 11, but I wanted that on the record. He signed and waived appeal.
THE COURT: Okay. I think since it's not part of the Rule 11 plea, I should advise. . .
MR. CARLBERG: I think you're right, your Honor, but I just wanted to make that clear for the record.
Petitioner suggests in his reply that Judge's Garcia's recitation of appeal rights negated his waiver and restored his right to seek post-conviction relief. The undersigned disagrees.
A waiver of appeal becomes unenforceable if the district judge advises of appeal rights and the prosecutor fails to object, because those circumstances create a reasonable expectation that the defendant may appeal notwithstanding his waiver. See United States v. Felix, 561 F.3d 1036, 1040-41 (9th Cir.) (citing United States v. Buchanan, 59 F.3d 914 (9th Cir. 1995)), cert. denied, 558 U.S. 901 (2009). In considering the effect of a waiver that has been contradicted by a district court's statements, the reviewing court must consider both the statements themselves and the defendant's reasonable expectation about his rights, in light of all the circumstances. United States v. Arias-Espinosa, 704 F.3d 616, 618-19 (9th Cir. 2012). Ambiguous or qualified advice about the right to appeal does not negate a written waiver, even absent objection by the prosecutor. Id. at 619.
Here, in contrast to Felix, supra, the prosecutor responded to the advisement by promptly bringing the waiver to the attention of the court and the defendant. Judge Garcia acknowledged the wavier, and indicated that some advisement was nonetheless appropriate in light of the fact that the waiver was independent of the previous Rule 11 proceeding. The references by the prosecutor and judge to Rule 11 suggested, at most, that petitioner might retain a right to appeal matters related to his change of plea. Nothing in Judge Garcia's statement expressly or impliedly negated the waiver as it applied to petitioner's sentence or matters addressed in the sentencing agreement. Nor did anything in Judge Garcia's statement imply that petitioner retained a right to bring a § 2255 motion attacking his sentence.
In determining whether the judge's statement created a reasonable expectation of a right to appeal, the Ninth Circuit has looked to the procedural history of the case as a whole. See Arias-Espinosa, 704 F.3d at 619 (considering the circumstances of the change of plea hearing before the magistrate judge, the findings and recommendations that reported a voluntary waiver of appeal, and the district court's adoption of the findings). Here, events before and after the advisement weigh against a finding that petitioner had a reasonable expectation that his right to bring a § 2255 motion had been revived. Petitioner's written waiver clearly distinguished between direct appeal and § 2255 review, and separately waived both. Judge Garcia's advisement was limited to the right to appeal the judgment. His explanation for the advisement emphasized the difference between defendant's guilty plea, which had not been accompanied by a contemporaneous waiver, and the sentencing proceeding, which had. At most, Judge Garcia's statement implied that petitioner retained a right to direct appeal. The fact that petitioner subsequently filed a direct appeal, ECF No. 71, suggests that this may have been his understanding - which does not help him here. Moreover, the fact that petitioner voluntarily dismissed his appeal as barred by the waiver, ECF No. 95-19, reflects his recognition that any such understanding was not reasonable.
For all these reasons, the qualified advisement of appellate rights did not negate petitioner's waiver of a § 2255 motion attacking his sentence.
CONCLUSION
Because petitioner's claims do not implicate the validity of the sentencing agreement, and because petitioner's wavier of post-conviction review was voluntary and enforceable, the waiver bars petitioner's § 2255 motion. This court therefore lacks jurisdiction to consider the merits of the claims.
Accordingly, IT IS RECOMMENDED that petitioner Stephen M. Kraut's motion under 28 U.S.C. § 2255 be DISMISSED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: October 30, 2014
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE