United States v. Sewell

Full title: UNITED STATES OF AMERICA, Respondent, v. HARVEY L. SEWELL, Movant

Court: United States District Court, E.D. California

Date published: Sep 20, 2011

No. CR S-05-0554 LKK EFB (E.D. Cal. Sep. 20, 2011)

Opinion

No. CR S-05-0554 LKK EFB.

September 20, 2011

ORDER

EDMUND BRENNAN, Magistrate Judge

Movant, a federal prisoner proceeding with counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dckt. No. 229. Since movant may be entitled to the requested relief, respondent is directed to file an answer, motion or other response within sixty days of the date of this order. See Rule 4(b), Rules Governing § 2255 Proceedings in the U.S. District Courts.

Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the § 2255 motion. Rule 5, Rules Governing § 2255 Proceedings in the U.S. District Courts.

Movant's reply to respondent's answer, if any, is due on or before thirty days from the date respondent's answer is filed. Id.

If the response to the § 2255 motion is a motion, movant's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 14 days thereafter.

The Clerk of the Court shall serve a copy of this order, together with a copy of movant's August 8, 2011 amended motion to vacate on the United States Attorney or his authorized representative.

Movant has also requested leave to file an oversized brief. Dckt. No. 228. The request is granted and the amended motion to vacate filed August 8, 2011 is accepted for filing.

So ordered.

United States District Court Eastern District of California At SacramentoCrim. No. 2:05-cr-00554-LKK-1 Civil No. 2:11-cv-809-LKK-EFBUNITED STATES OF AMERICA, Plaintiff-Respondent, vs. HARVEY L. SEWELL, Defendant-Movant.THE HONORABLE LAWRENCE K. KARLTON UNITED STATES DISTRICT JUDGECOURT FORM AO-243 AMENDED MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

HARVEY L. SEWELL 16188-097 3901 Klein Blvd Lompoc, CA 93436 TABLE OF CONTENTSPage:Court AO-243 Model Form Table of Contents ............................................... ii .......................................... 1 Statement of Claim .............................................. 14 Claim Number One ................................................ 18 Claim Number Two ................................................ 20 Claim Number Three .............................................. 25 Claim Number Four ............................................... 28 Allegation of Jurisdiction ...................................... 29 Statement as to Waiver, Cause, and Prejudice .................... 29 Judgment Requested .............................................. 29 Motion for Discovery............................................. 30 Proffer ......................................................... 31 Motion for Appointment of Counsel ............................... 31 Verification of Motion .......................................... 31 Certificate of Filing and Service ............................... 34

APPENDIX OF FORMS 28 U.S.C. § 2255

United States District CourtEastern District of California, At Sacramento.Name:Harvey L. SewellPrisoner Number:16188-097.Place of Confinement:3901 Klein Blvd, Lompoc, CA 93436.

United States of America, v. Harvey L. Sewell, Movant.MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODYMOTION

(a) Name and location of court which entered the judgment of conviction underattack:United States District Court, Eastern District of California, At Sacramento.(b) Criminal docket or case number (if you know):Crim. No. 2:05-cr-00554-LKK-1Civil No. 2:11-cv-809-LKK-EFB(a) Date of the judgment of conviction (if you know):8-11-08(b) Date of sentencing:8-5-08.Length of sentence:300 months incarceration.Nature of offense involved (all counts):21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1)(conspiracy to distribute and possess with intent to distribute at least 50 grams of crackcocaine from no later than August 2005 and continuing through January 11.2006) (Count1); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about12-9-05) (Count 2); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crackcocaine on or about 12-16-05) (Count 3); 21 U.S.C. § 841(a)(1) (distribution of at least 5grams of crack cocaine on or about 12-27-05) (Count 4); 21 U.S.C. § 841(a)(1)(distribution of at least 5 grams of crack cocaine on or about 1-10-06) (Count 5).What was your plea? (Check one)(a) Not guilty(b) Guilty(c) Nolo contendereIf you entered a guilty plea to one count or indictment, and a not guilty plea toanother count or indictment, what did you plead guilty to and what did you pleadnot guilty to?N/AIf you went to trial, what kind of trial did you have? (Check one)(a) Jury(b) Judge onlyDid you testify at a pretrial hearing, trial, or post-trial hearing?YesNoDid you appeal from the judgment of conviction?YesNoIf you did appeal, answer the following:(a) Name of court:USCA 9(b) Docket or case number (if you know):08-10363(c) Result:conviction and sentence affirmed.(d) Date of result (if you know):12-21-09.(e) Citation to the case (if you know):2009 U.S. App. LEXIS 27980(f) Grounds raised:I.) THE PROSECUTOR COMMITTED MISCONDUCT BYSUGGESTING THAT THE DEFENSE INVESTIGATOR VIOLATED ALICIA PHILLIPS'RIGHTS, MADE HER PROMISES, AND THREATENED HER: II.) THE COURT ERRED INOVERRULING THE OBJECTION TO THE PROSECUTOR'S SUGGESTION THATWITNESS GILLESPIE UNETHICALLY FAILED TO EITHER PROVIDE COUNSEL TOPHILLIPS OR SPEAK FIRST TO HER STATE COUNSEL. THE PROSECUTOR'SQUESTIONING VIOLATED FEDERAL RULE OF EVIDENCE 402(g) Did you file a petition for certiorari in the United States Supreme Court?YesNoIf "Yes," answer the followingN/A(1) Docket or case number (if you know):(2) Result:(3) Date of result (if you know):N/A(4) Citation to the case (if you know):(5) Grounds raised:Other than a direct appeal from the judgment of conviction and sentence, have youpreviously filed any petitions, applications or motions with respect to this judgmentin any federal court?YesNoIf your answer to 10 was "yes," give the following information: N/A(a) (1) Name of court:(2) Docket or case number (if you know):(3) Date of filing (if you know):(4) Nature of the proceeding:(5) Grounds raised:(6) Did you receive a hearing where evidence was given on your motion,petition, or application? YesNo(7) Result:(8) Date of result (if you know):(b) If you filed any second motion, petition, or application, give the sameinformation: N/A(1) Name of court:(2) Docket or case number (if you know):(3) Date of filing (if you know):(4) Nature of the proceeding:(5) Grounds raised:(6) Did you receive a hearing where evidence was given on your motion,petition, or application? YesNo(7) Result:(8) Date of result (if you know):(c) Did you appeal to a federal appellate court having jurisdiction over the actiontaken on your motion, petition, or application? N/A(1) First petition:............ YesNo(2) Second petition:........... YesNo(d) If you did not appeal from the action on any motion, petition, or application,explain briefly why you did not:Nothing was filed.GROUND ONE:Ineffective assistance of counsel in the plea process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to advise Mr. Sewell as to allfacts and law relevant to his decision to plead not guilty and proceed to trial. Had Mr.Sewell been fully advised, there is a reasonable probability that would have pleadedguilty to a plea agreement which did not include enhancement under 21 U.S.C. § 851.But for counsel's unprofessional error, there is a reasonable probability that the outcomeof the proceeding would have been different.(b) Direct Appeal of Ground One:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND TWO:Ineffective assistance of counsel in the pretrial process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to timely, properly, andeffectively move for suppression of evidence material to the conviction and/or sentenceof Mr. Sewell and counsel could have but did not timely move for dismissal of theindictment. But for counsel's unprofessional error, there is a reasonable probability thatthe outcome of the proceeding would have been different.(b) Direct Appeal of Ground Two:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND THREE:Ineffective assistance of counsel in the trial process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to investigate or present available,material, exculpatory evidence and testimony at trial and failed to timely object to theunlawful admission of evidence by the prosecution. But for counsel's unprofessionalerror, there is a reasonable probability that the outcome of the proceeding would havebeen different.(b) Direct Appeal of Ground Three:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND FOUR:Ineffective assistance of counsel in the trial process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to advise Mr. Sewell as to allfacts and law relevant to his decision whether to testify at trial. More specifically, counselfailed to advise Mr. Sewell that he had a right to testify at trial and that the determinationas to whether to testify was ultimately Mr. Sewell's to make — not the attorney's. But forcounsel's unprofessional errors, there is a reasonable probability that Mr. Sewell wouldhave taken the witness stand and directly rebutted the allegations of the indictment andthe prosecution's evidence. But for counsel's unprofessional error, there is a reasonableprobability that the outcome of the proceeding would have been different.(b) Direct Appeal of Ground Four:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND FIVE:Ineffective assistance of counsel in the trial process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to timely request appropriate juryinstructions and to timely object to insufficient instructions. In final argument, counselunprofessionally also failed to timely object to improper argument by the prosecutionand/or to timely ask for curative instructions for the improper argument. But for counsel'sunprofessional error, there is a reasonable probability that the outcome of the proceedingwould have been different.(b) Direct Appeal of Ground Five:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND SIX:Ineffective assistance of counsel in the sentencing process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to investigate or present availableevidence and legal authority material to the sentencing of Mr. Sewell. Counsel alsounprofessionally failed to object to, unlawful, false and unreliable evidence used todetermine Mr. Sewell's guideline sentencing range and ultimate sentence. But forcounsel's unprofessional error, there is a reasonable probability that the outcome of theproceeding would have been different.(b) Direct Appeal of Ground Six:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND SEVEN.Ineffective assistance of counsel in the sentencing process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Mr. Sewell was prejudiced by the objectively unreasonableperformance of counsel during the sentencing process, when counsel unprofessionallyfailed to move for appropriate downward departure or a downward variance under 18U.S.C. § 3553(a) in Mr. Sewell's case. But for counsel's unprofessional error, there is areasonable probability that the outcome of the proceeding would have been different.(b) Direct Appeal of Ground Seven:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND EIGHT:Ineffective assistance of counsel in the direct appeal process.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Counsel unprofessionally failed to investigate or present thestrongest issues available to Mr. Sewell for his direct appeal and failed to preserve viableissues for collateral review. But for counsel's unprofessional error, there is a reasonableprobability that the outcome of the proceeding would have been different.(b) Direct Appeal of Ground Eight:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND NINE:Mr. Sewell was denied his Sixth Amendment constitutional right tocounsel unburdened by an actual conflict of interest.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Mr. Sewell's counsel labored under an actual conflict of interestwhich adversely affected their performance during the pretrial, plea, trial, sentencing anddirect appeal process in this case. Counsel owed a 'duty' other than to Mr. Sewell. Thisduty was in conflict with the duty owed to Mr. Sewell. Counsel chose between the duties.This choice adversely affected the performance of counsel during the pretrial, plea, trial,sentencing and direct appeal process.(b) Direct Appeal of Ground Nine:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND TEN:Ineffective assistance of counsel.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Mr. Sewell Was Prejudiced By The Cumulative Impact OfMultiple Deficiencies Or Errors By Counsel During The Pretrial, Plea, Trial SentencingAnd Direct Appeal Process. But for counsel's unprofessional error, there is a reasonableprobability that the outcome of the proceeding would have been different.(b) Direct Appeal of Ground Ten:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:Thereasons for counsel's failures were not part of the record.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND ELEVEN:Mr. Sewell's Conviction And Sentence Are Violative Of TheFirst, Fourth, Fifth, Sixth, And Eighth Amendments To The Constitution.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Mr. Sewell's Conviction And Sentence Are Violative Of HisRight To Freedom Of Speech And To Petition, His Right To Be Free Of UnreasonableSearch And Seizure, His Right To Due Process Of Law, His Rights To Counsel, To JuryTrial, To Confrontation Of Witnesses, To Present A Defense, And To CompulsoryProcess, And His Right To Be Free Of Cruel And Unusual Punishment Under TheConstitution.(b) Direct Appeal of Ground Eleven:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:ineffective assistance of counsel and because facts and law were not reasonablyavailable for direct appeal.(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue:GROUND Twelve:Based on 18 U.S.C. Appendix C, Amendment 706, and the factorsset forth in 18 U.S.C. § 3553(a) to the extent that they are applicable, a reduction in Mr.Sewell's sentence is consistent with applicable policy statements issued by theSentencing Commission.(a) Supporting facts (Do not argue or cite law. Just state the specific facts thatsupport your claim.):Under the recent changes to crack cocaine sentencing, Mr. Sewellcan and should receive a reduction in his sentence.(b) Direct Appeal of Ground Twelve:(1) If you appealed from the judgment of conviction, did you raise this issue?YesNo(2) If you did not raise this issue in your direct appeal, explain why:(c) Post-Conviction Proceedings:(1) Did you raise this issue in any post-conviction motion, petition, orapplication?YesNo(2) If your answer to Question (c)(1) is "Yes," state:Type of motion or petition:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(3) Did you receive a hearing on your motion, petition, or application?:YesNo(4) Did you appeal from the denial of your motion, petition, or application?:YesNo(5) If your answer to Question (c)(4) is "Yes," did you raise this issue in theappeal?YesNo(6) If your answer to Question (c)(4) is "Yes," state:Name and location of the court where the appeal was filed:Docket or case number (if you know):Date of the court's decision:Result (attach a copy of the court's opinion or order, if available):(7) If your answer to Question (c)(4) or Question (c)(5) is "No," explain whyyou did not appeal or raise this issue: 1. 2. 3. 4. 5. ........... [x] ............... [] ...... [] 6. ..................... [x] ............... [] 7. [] [] 8. [x] [] 9. [] [x] : 10. [] [x] 11. [] [] [] [] [] [] [] [] 12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [x] [] [x] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] [] []

STATEMENT OF CLAIM

1.) Pursuant to Title 28, United States Code, Federal Rules of Civil Procedure 8-11, and Rule 2 of the Rules Governing Section 2255 Proceedings, Defendant-Movant Harvey L. Sewell, 16188-097, states the following claims for relief under 28 U.S.C. § 2255.

2.) These claims for relief incorporate the attached Section 2255 Model Court Form, as well as the information contained therein as if set forth in full herein.

3.) On or about 4-13-06 Harvey L. Sewell was charged with violation of 21 U.S.C. § 841(a)(1) (distribution of a mixture and substance containing cocaine base on or about 12-9-05) (Count 1); 21 U.S.C. § 841(a)(1) (possession with intent to distribute at least 5 grams of cocaine base on or about 12-11-05) (Count 2); 21 U.S.C. § 841(a)(1) (possession with intent to distribute a mixture and substance containing a detectable amount of methamphetamine on or about 12-11-05) (Count 3); 21 U.S.C. § 841(a)(1) (possession with intent to distribute a mixture and substance containing a detectable amount of cocaine on or about 12-11-05) (Count 4); 18 U.S.C. § 922(g)(1) — (Felon in Possession of a Firearm on or about 12-11-05) (Count 5); 21 U.S.C. § 841(a)(1) (possession with intent to distribute a mixture and substance containing a detectable amount of cocaine on or about 12-16-05) (Count 6); 21 U.S.C. § 841(a)(1) (possession with intent to distribute a mixture and substance containing a detectable amount of cocaine on or about 12-27-05) (Count 7). (Appendix, Exhibits A) (Appendix, Exhibits B) (Appendix, Exhibits C)¹

1 This refers to the Appendix of Exhibits attached to the memorandum in support of this motion which is filed simultaneously with this motion.

4.) These charges arose from undercover purchases of drugs and testimony of cooperating individuals.

5.) On or about 5-31-07, Harvey L. Sewell was charged in a superseding indictment with violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (conspiracy to distribute and possess with intent to distribute at least 50 grams of crack cocaine from no later than August 2005 and continuing through January 11, 2006) (Count 1); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-9-05) (Count 2); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-16-05) (Count 3); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-27-05) (Count 4); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 1-10-06) (Count 5); 21 U.S.C. § 851 (Harvey Lee Sewell, Jr. committed these offenses after he sustained a prior conviction for a felony drug offense that became final, specifically California Health and Safety Code Section 11351.5, on or about August 12, 2003, in Alameda County, California) (final allegation). (Appendix, Exhibits C)

6.) He was rearraigned on or about 6-4-07 at which time he again pleaded not guilty to the charged violations. (Appendix, Exhibits C)

7.) On 3-7-06, counsel filed a motion to suppress. In this motion, counsel argued, inter alia, that evidence seized from a vehicle driven by Mrs. Sewell. On 7-18-06 and 8-1-06, hearings were held on the motion to suppress. On 5-18-06, the District Court granted the motion to suppress. The government subsequently moved for reconsideration, but this was denied 8-1-06.

8.) On or about 1-29-08 Mr. Sewell proceeded to trial. (Appendix, Exhibits C)

9.) At trial, the evidence was riddled with lies, half-truths, inconsistencies, innuendoes, inferences from inferences and questionable circumstantial evidence.

10.) During the trial process in this case, Mr. Sewell was not aware that he had the ultimate authority to decide whether to take the stand and testify; that is that only Mr. Sewell could waive his constitutional right to testify in the trial process.

11.) During the trial process in this case, Mr. Sewell was not aware that he had a constitutional right to testify in the trial process even if counsel advised and believed that such testimony would be inadvisable from counsel's viewpoint.

12.) Mr. Sewell did not testify at trial.

13.) On or about 11-28-06 and 6-5-07 the government filed an "information" alleging that Mr. Sewell had been previously convicted of a Drug Trafficking Crime. This information was filed ostensibly pursuant to 21 U.S.C. § 851. (Appendix, Exhibits A, Exhibits C)

14.) On 2-13-08 Mr. Sewell was found guilty by the jury as to violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (conspiracy to distribute and possess with intent to distribute at least 50 grams of crack cocaine from no later than August 2005 and continuing through January 11, 2006) (Count 1); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-9-05) (Count 2); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-16-05) (Count 3); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-27-05) (Count 4); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 1-10-06) (Count 5). (Appendix, Exhibits B, Exhibits C)

15.) When the Presentence Report was prepared, the Probation Officer recommended finding a Total Offense Level 38 and a Criminal History V with a guideline sentencing range of 360 months to life and a statutory mandatory minimum of 20 years based on the filing of the "information" under 21 U.S.C. § 851. (Appendix, Exhibits A) (Presentence Report ¶ 79)

16.) On 8-5-08, Mr. Sewell appeared for sentencing. At sentencing, the Court adopted the calculations of the Presentence Report and then stated:

THE COURT: Unfortunately, the Ninth Circuit said if you're to depart from the guidelines, you got to explain why. So I'm about to do that. And I apologize except it doesn't make any difference, right? It is all bad.

The question is what is sufficient but not greater than necessary to punish the defendant. And I must confess that the defendant's argument that the mandatory minimum in this case is more than enough is wholly justified.

It's bizarre to think that for a man of his age the number of years would be insufficient. Nonetheless, Congress set a minimum, which means a person sitting where Mr. Sewell is sitting can't be sentenced to the minimum consistent with Congress' judgment because they don't have to send people to prison. They just have to write statutes. Nonetheless, I'm bound by the judgment that they make.

It is the Court's view that it is appropriate, given the Criminal History Category of the defendant, that some increase from the guideline range is appropriate and the Court will do so.

Having said as much, sir, anything you want to say before the Court pronounces judgment and sentence?

You don't have to.

THE DEFENDANT: No, Your Honor.

THE COURT: Okay.

Court finds the Total Offense Level is 38, the Criminal History Category is Roman V, the Guideline Range is 360 months.

Pursuant to the Sentencing Reform Act of 1984 it is the judgment of the Court that the defendant, Harvey Lee Sewell, Jr., is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 300 months on each of Counts One through Five, to be served concurrently for a total term of 300 months.

(Transcript of Sentencing, pages 3-4)

17.) On 8-5-08, Mr. Sewell was sentenced to 300 months incarceration for violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (conspiracy to distribute and possess with intent to distribute at least 50 grams of crack cocaine from no later than August 2005 and continuing through January 11, 2006) (Count 1); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-9-05) (Count 2); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-16-05) (Count 3); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 12-27-05) (Count 4); 21 U.S.C. § 841(a)(1) (distribution of at least 5 grams of crack cocaine on or about 1-10-06) (Count 5). This sentence represented either a downward departure or a downward variance from the guideline sentencing range of 360 months to life. The sentence did NOT include downward adjustment for acceptance of responsibility because Mr. Sewell proceeded to a trial on contested facts. (Appendix, Exhibits A, ¶¶ 37-38) (Appendix, Exhibits B) (Appendix, Exhibits C) (Transcript of Sentencing, pages 3-4)

18.) Counsel filed a direct appeal. In the appeal, counsel argued:

I.) THE PROSECUTOR COMMITTED MISCONDUCT BY SUGGESTING THAT THE DEFENSE INVESTIGATOR VIOLATED ALICIA PHILLIPS' RIGHTS, MADE HER PROMISES, AND THREATENED HER; II.) THE COURT ERRED IN OVERRULING THE OBJECTION TO THE PROSECUTOR'S SUGGESTION THAT WITNESS GILLESPIE UNETHICALLY FAILED TO EITHER PROVIDE COUNSEL TO PHILLIPS OR SPEAK FIRST TO HER STATE COUNSEL. THE PROSECUTOR'S QUESTIONING VIOLATED FEDERAL RULE OF EVIDENCE 402

(Sewell USCA Brief, pages ii-iii)

19.) On 12-21-09, the Court of Appeals denied Mr. Sewell's direct appeal. United States v. Harvey Sewell, No. 08-10363; 359 Fed. Appx. 860; 2009 U.S. App. LEXIS 27980 (9^th Cir. 12-21-09).

20.) No Petition for Writ of Certiorari was timely filed with the Supreme Court.

21.) Mr. Sewell provided counsel with complete and accurate information and did not place any restrictions on counsel.

22.) Mr. Sewell relied completely and in all material respects on the advice of counsel.

CLAIM NUMBER ONE

23.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

24.) Mr. Sewell's conviction and/or sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel as hereinafter more fully appears.

25.) Counsel could have but did not advise Mr. Sewell that he had a constitutional right to testify in the trial process even if counsel advised and believed that such testimony would be inadvisable from counsel's viewpoint.

26.) Counsel's omissions set forth in ¶ 25 were based upon an incomplete investigation of the law relevant to Mr. Sewell's trial process.

27.) Counsel could have but did not investigate case law such as DeLuca v. Lord, 858 F.Supp. 1330, 1353-1356 (S.D.N.Y. 1994) and Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-2709, 97 L.Ed.2d 37 (1987) and authorities therein.

28.) The cases set forth in the foregoing paragraph stand for the proposition that

. . . the right to testify 'is one of the rights that are essential to due process of law in a fair adversary process and that it is 'even more fundamental to a person defense than the right of self representation.

DeLuca v. Lord, 858 F.Supp. at 1354 (quoting Rock v. Arkansas, 483 U.S. at 51-52, 107 S.Ct. at 2709).

29.) The cases set forth in the foregoing paragraphs also stand for the proposition that defense counsel is "responsible for informing his client that [he] has both the right to testify, and the ultimate authority to decide whether or not to take the stand". DeLuca v. Lord, 858 F.Supp. at 1359-60.

30.) Counsel's omissions set forth in ¶¶ 25-29 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell in the trial process.

31.) Counsel's omissions set forth in ¶¶ 25-29 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause in the trial process.

32.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set. forth in ¶¶ 25-30 because, absent said omissions, there is a reasonable probability that the outcome of his trial process would have been different in the following ways:

33.) But for counsel's unprofessional omissions, there is a reasonable probability that the jury would have found Mr. Sewell not guilty.

34.) Moreover, Mr. Sewell's testimony would have been material to the trial process as a matter of law, because:

The testimony of a criminal defendant at his own trial is unique and inherently significant. 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself . . . the most important witness for the defense is the defendant himself."

DeLuca v. Lord, 858 F.Supp. 1330, 1361 (S.D.N.Y. 1994) (quoting Nichols v. Butler, 953 F.2d 1550, 1553 (11^th Cir. 1992) (quoting Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961)) and quoting Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709)

35.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set forth in ¶¶ 25-30 because said omissions deprived him of his substantive right to take the witness stand and testify; a substantive right to which the Constitution entitled him.

36.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set forth in ¶¶ 25-30, because said omissions undermine confidence in the reliability of his trial process.

CLAIM NUMBER TWO

37.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

38.) Mr. Sewell's plea of not guilty, conviction, and sentence are violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea process as hereinafter more fully appears.

39.) Prior to trial and during the plea process, counsel advised Mr. Sewell to stand trial without first conducting an independent investigation of the facts, circumstances, pleadings and laws involved as hereinafter more fully appears.

40.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

41.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that there was virtually no chance he could prevail at trial due to the overwhelming weight and quality of the government's evidence.

42.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.²

2 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

43.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the overwhelming amount and quality of evidence available to the United States to use against Mr. Sewell.

44.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the government's actual conviction rate after federal criminal trials.

45.) Prior to trial and during the plea process, counsel could have but did not fully advise Mr. Sewell as to the law relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

46.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that he could plead guilty or nolo contendere without an 'offer' or 'deal' or 'plea agreement' with the government. While the 'straight up' plea of guilty or nolo contendere could have been rejected by the Court under certain limited circumstances³, it was extremely unlikely that the Court would have done so in his case.

3 See United States v. Shepard, 322 U.S. App. D.C. 160; 102 F.3d 558 (D.C. Cir. 12-6-96) (citing United States v. Maddox, 48 F.3d 555, 556-558 (D.C. Cir. 1995) and Santobello v. New York, 404 U.S. 257, 260-262 (1971) and United States v. Jackson, 390 U.S. 570, 584 (1968) and United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973); Harris v. United States, ___ F.3d ___, 1998 U.S. App. LEXIS 20715 (11th Cir. 8-13-98) (Court accepted plea of guilty precluding enhancement to sentence under 21 U.S.C. § 851 even when government "didn't know [defendant] was going to enter a plea")

47.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that, if he tendered a timely plea of guilty or nolo contendere and demonstrated remorse, he could likely obtain a 3-points reduction in his offense level under U.S.S.G. § 3E1.1 for "acceptance of responsibility".

48.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if the government offered him a "plea agreement".

49.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if he cooperated with the government in the investigation or prosecution of another person who has committed an offense.

50.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he pleaded guilty or nolo contendere he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors. Counsel could have but did not explain that a timely plea of guilty or nolo contendere would have made additional, far more useful and powerful defenses available for Mr. Sewell at sentencing than he had by proceeding to trial.

51.) Counsel's acts and omissions set forth in ¶¶ 45-50 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to plead guilty or not guilty and proceed to trial.

52.) In actual fact, Mr. Sewell believed that there was no significant advantage in pleading guilty or nolo contendere instead of proceeding to trial. His plea of not guilty was predictated in material part on this understanding.

53.) If, prior to advising Mr. Sewell to plead not guilty, trial counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead plead guilty or nolo contendere either with or without a plea agreement.

54.) Counsel's omissions set forth in ¶¶ 39-53 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea process.

55.) Counsel's omissions set forth in ¶¶ 39-53 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea process.

56.) The advice received from counsel regarding whether to plead guilty, nolo contendere, or not guilty was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

57.) Based on the facts set forth in ¶¶ 39-56, Counsel's performance in the plea process fell below the objective standard of reasonableness required by the Sixth Amendment.

58.) Based on the facts set forth in ¶¶ 39-57, Mr. Sewell's plea of not guilty was not a voluntary and intelligent choice among the alternative courses of action open to him.

59.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, there is a reasonable probability that Mr. Sewell would have pleaded guilty or nolo contendere instead of proceeding to trial.

60.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because a substantial difference exists between the sentence he could have obtained by a plea of guilty or nolo contendere and the actual sentence he received after trial. More specifically, had Mr. Sewell pleaded guilty or nolo contendere instead of proceeding to trial, there is a reasonable probability he would have received a sentence substantially less than the sentence he received after trial. This is because there is a reasonable probability that he would have received a 3 points downward adjustment in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility and the Court would, therefore, have initiated its downward departure from a sentence of 262 months instead of from 360 months; a difference of approximately 100 months.

61.) The facts set forth in ¶ 60 plead and demonstrate "objective evidence" and "special circumstances" to support Mr. Sewell's allegations set forth in ¶ 59.

62.) Mr. Sewell was prejudiced from the unprofessional acts and omissions of counsel, set forth herein, because said omissions undermine confidence in the reliability of the plea process in his case.

CLAIM NUMBER THREE

63.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

64.) Mr. Sewell's sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea, trial, and sentencing process as hereinafter more fully appears.

65.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to proceed to a jury trial or, instead, to move for a bench trial on stipulated facts.

66.) Counsel could have but did not fully advise Mr. Sewell as to the requirements for obtaining a reduction in his sentence for "acceptance of responsibility".

67.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.⁴

4 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

68.) Counsel could have but did not fully advise Mr. Sewell that he could obtain District Court and appellate review of the the sufficiency of the evidence, while still obtaining a reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility, by proceeding to a bench trial on stipulated facts, while preserving his legal issue for appellate review.

69.) Counsel could have but did not fully advise Mr. Sewell that, if he proceeded to a bench trial on stipulated facts, he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors.

70.) Counsel's acts and omissions set forth in ¶¶ 65-69 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to proceed to a bench or jury trial.

71.) Counsel could have but did not investigate case law such as United States v. Villasenor, 114 F.3d 970; 1997 U.S. App. LEXIS 13605 (9^th Cir. 1997) (affirming 2 levels reduction in sentence for acceptance of responsibility after bench trial on stipulated facts); United States v. Rogers, 129 F.3d 76; 1997 U.S. App. LEXIS 29784 (2^nd Cir. 1997) (same); United States v. Ryan, 964 F. Supp. 526; 1997 U.S. Dist. LEXIS 6987 (D MA 1997) (same).

72.) Counsel could have but did not investigate the plain language of U.S.S.G. § 3E1.1, Commentary, Application Note 2, which provides in relevant part:

2. . . . Conviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction. . . . a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, Commentary, Application Note 2.

73.) In actual fact, Mr. Sewell was not even aware that he had any other option but to either proceed to jury trial or plead guilty.

74.) If, prior to advising Mr. Sewell to proceed to a jury trial, counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead move for a bench trial on stipulated facts.

75.) The advice received from counsel regarding whether to a jury trial or bench trial on stipulate facts was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

76.) Based on the facts set forth in ¶¶ 65-75, Counsel's performance in the plea, trial, and sentencing process fell below the objective standard of reasonableness required by the Sixth Amendment.

77.) Based on the facts set forth in ¶¶ 65-75, Mr. Sewell's decision to proceed to a jury trial was not a voluntary and intelligent choice among the alternative courses of action open to him.

78.) Counsel's omissions set forth in ¶¶ 65-75 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea, trial, and sentencing process.

79.) Counsel's omissions set forth in ¶¶ 65-75 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea, trial, and sentencing process.

80.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because a stipulation could have been negotiated with the government whereby Mr. Sewell would have agreed that the testimony and evidence would be as actually presented to the jury at the actual trial.

81.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, Mr. Sewell would have moved for a bench trial on stipulated facts and would have proceeded to a bench trial on stipulated facts instead of a jury trial on contested facts.

82.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, had he proceeded to a bench trial on stipulated facts, he could have retained eligibility for a reduction in his sentence under U.S.S.G. § 3E1.1 while, at the same time, obtaining judicial determination as to the sufficiency of evidence and retaining his ability to challenge his relevant conduct, his criminal history, and other sentencing factors such as whether he was entitled to a downward departure or adjustments for mitigating factors.

83.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, Mr. Sewell would have received a reduction in his sentence under U.S.S.G. § 3E1.1 for acceptance of responsibility.

CLAIM NUMBER FOUR

84.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-83 herein.

85.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in Grounds 1-12 of the Model Form (AO-243) of his Section 2255 motion.

86.) Mr. Sewell's conviction and/or sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel in the pretrial, plea, trial, sentencing and direct appeal process due to both the individual errors and the multiplicity of errors by counsel as set forth herein.

ALLEGATION OF JURISDICTION

87.) This Court has jurisdiction to entertain, rule on the merits, and grant relief in Claims Number 1-4 under 28 U.S.C. § 2255 and the principles of Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), as construed in case law such as United States v. Glover, 531 U.S. 198; 121 S. Ct. 696; 148 L. Ed. 2d 604; 2001 U.S. LEXIS 639 (2001) and Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00).

STATEMENT AS TO WAIVER, CAUSE, AND PREJUDICE

88.) Since Mr. Sewell is raising only claims of ineffective assistance of counsel in Claims Number 1-3, he is not precluded from raising these claims for the first time in this motion pursuant to 28 U.S.C. § 2255. Massaro v. United States, 123 S. Ct. 1690; 155 L. Ed. 2d 714; 2003 U.S. LEXIS 3243 (4-23-03) ("an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under Section 2255, whether or not the petitioner could have raised the claim on direct appeal").

JUDGMENT REQUESTED

89.) Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks this Honorable Court to ORDER an evidentiary hearing where he can prove the allegations herein by: (A) his own testimony; (B) the testimony of Attorneys Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel; (C) the testimony of AUSA Jason Hitt; (D) additional evidence; and (E) legal argument to be presented at the hearing.

90.) Upon proof of Mr. Sewell's allegations herein, Mr. Sewell asks this Honorable Court to:

91.) ORDER that Mr. Sewell's conviction be VACATED and his indictment be DISMISSED; or,

92.) ORDER that Mr. Sewell's sentence be VACATED and that he be RESENTENCED to a substantially reduced sentence calculated as if he had timely pleaded guilty or nolo contendere or had proceeded to a bench trial on stipulated facts and accepted responsibility for the offense.

MOTION FOR DISCOVERY

93.) Pursuant to Rule 6⁵ of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein.⁶ More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

5 It should be noted that Rule 6(a) of the Rules Governing Section 2255 Proceedings provides for discovery under either Federal Rules of Civil Procedure 26-37 or under Federal Rule of Criminal Procedure 16. See J. Liebman and R. Hertz, Federal Habeas Corpus Practice and Procedure, § 41.6 [n. 2-3] (3^rd Ed. 1998). In this respect, the Rules Governing Section 2255 Proceedings are distinct from the Rules Governing Section 2254 Proceedings because they allow additional discovery devices. Id.

6 The Supreme Court's most recent review of "discovery" in habeas corpus proceedings was in Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). In Bracy v. Gramley, the Supreme Court vacated a District Court and Court of Appeals denial of discovery in habeas corpus, 28 U.S.C. § 2254. The Supreme Court pointed out that Rule 6 of the Rules Governing 2254 Cases, prescribing discovery procedures in federal habeas corpus cases, is meant to be consistent with Harris v Nelson, 394 US 286, 22 L Ed 2d 281, 89 S Ct 1082 (1969), in which it was stated that where specific allegations before a federal court show reason to believe that a petitioner for federal habeas corpus relief may, if the facts are fully developed, be able to demonstrate entitlement to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry. Bracy v. Gramley, 520 U.S. at 909.

PROFFER

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

MOTION FOR APPOINTMENT OF COUNSEL

95.) Pursuant to Rule 6(c) and Rule 8(c) of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks that counsel be appointed for discovery and his evidentiary hearing.⁷

7 See United States v. Leopard, 170 F.3d 1013, 1015 (10^th Cir. 1999) ("if an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A.")

VERIFICATION

96.) The facts set forth in ¶¶ 3, 5-8, 12-22 herein are based on the personal knowledge of Mr. Sewell and are true and correct. The rest of the allegations are pleaded on information and belief. 28 U.S.C. § 1746 Harvey L. Sewell Signed under penalty of perjury under this ___ day of _________, 2011. Defendant-Movant 16188-097 3901 Klein Blvd Lompoc, CA 93436 Is there any ground in this motion that you have not previously presented in somefederal court? If so, which ground or grounds have not been presented, and stateyour reasons for not presenting them:None of the grounds of ineffective assistance ofcounsel have been previously presented. The courts have determined that claims ofineffective assistance of counsel should not be raised on direct appeal and are betterraised in a motion pursuant to 28 U.S.C. § 2255. The record was insufficient to raise theother claims set forth herein.Do you have any motion, petition, or appeal now pending (filed and not decided yet)in any court for the judgment you are challenging? YesNoIf "Yes," state the name and location of the court, the docket or case number, thetype of proceeding, and the issues raised:N/AGive the name and address, if known, of each attorney who represented you in thefollowing stages of the judgment you are challenging:(a) At preliminary hearing:Alexandra Paradis Negin, 801 I Street, 3rd FloorSacramento, CA 95818.(b) At arraignment and plea:Alexandra Paradis Negin, 801 I Street, 3rd Floor,Sacramento, CA 95818 and Mark Joseph Reichel, 455 Capitol Mall, Suite 350,Sacramento, CA 95813.(c) At trial:Hayes H. Gable, III, 428 J Street Suite 354, Sacramento, CA 95814.(d) At sentencing:Hayes H. Gable, III, 428 J Street, Suite 354, Sacramento, CA 95814and Timothy E. Warriner, 813 6th Street, Suite 450, Sacramento, CA 95814.(e) On appeal:Timothy E. Warriner, 813 6th Street, Suite 450, Sacramento, CA 95814.(f) In any post-conviction proceeding:N/A.(g) On appeal from any adverse ruling in a post-conviction proceeding:N/A.Were you sentenced on more than one count of an indictment, or on more than oneindictment, in the same court and at the same time? YesNoDo you have any future sentence to serve after you complete the sentence for thejudgment that you are challenging? YesNo(a) If so, give name and location of court which imposed sentence to be served in thefuture:N/A(b) Give the date the other sentence was imposed:N/A(c) Give the length of the other sentence:N/A(d) Have you filed, or do you plan to file, any motion, petition, or application thatchallenges the judgment or sentence to be served in the future? YesNoN/ATIMELINESS OF MOTION: If your judgment of conviction became final over oneyear ago, you must explain why the one-year statute of limitations as contained in 28U.S.C. § 2255 does not bar your motion:Mr. Sewell's judgment of conviction becamefinal on 3-20-10 when the time expired for filing a Petition for Writ of Certiorari with theSupreme Court. This motion is filed within one year of that date.Therefore, movant asks that the Court grant the following relief:Mr. Sewell asks the Courtto VACATE his conviction and sentence and DISMISS the indictment or RESENTENCEhim to TIME SERVED or that he be RESENTENCED to a substantially reducedsentence calculated as if he had timely pleaded guilty or nolo contendere or hadproceeded to a bench trial on stipulated facts and accepted responsibility for the offense.or any other relief to which movant may be entitled. 28 U.S.C. § 2255 Harvey L. Sewell16188-0973901 Klein BlvdLompoc, CA 93436 13. 14. [] [x] 15. , 16. [x] [] 17. [] [x] [] [] 18. ______________________________ Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the facts set forth in ¶¶ 1-11, 14- 17 of the Model Form are true and correct. The remaining allegations are pleaded on information and belief. I also declare under penalty of perjury that this Motion under was placed in the prison mailing system on ______________ (month, date, year). Executed (signed) on _________________ (date) (Signature of Movant) United States District CourtEastern District of CaliforniaAt SacramentoUNITED STATES OF AMERICA, ) Crim. No. 2:05-cr-00554-LKK-1) Civil No. 2:11-cv-809-LKK-EFBPlaintiff-Respondent, ) HON. LAWRENCE K. KARLTON) MAG. JUDGE BRENNANvs. )) CERTIFICATE OF FILINGHARVEY L. SEWELL, ) AND SERVICE)Defendant-Movant. ) Pursuant to the principles of Houston v. Lack, 487 U.S. 266, 276 (1988), the attached motion pursuant to 28 U.S.C. § 2255 was filed with the Court and served on counsel for the United States on this date by depositing the required originals and copies of same into the prison mail collection box, in sealed envelopes, first class postage affixed and addressed to: Clerk — U.S. District Court, 501 I Street, Room 4-200, Sacramento, CA 95814-7300 and Office of U.S. Attorney For The Eastern District of California, 501 I Street, Sacramento, CA 95814.

I have read the foregoing and state that the facts are set forth upon personal knowledge and are true and correct. 28 U.S.C. § 1746 Harvey L. Sewell

Signed under penalty of perjury under , this _______ day of ______________ 2011. _______________________________________ 16188-097 3901 Klein Blvd Lompoc, CA 93436 United States District Court Eastern District of California At SacramentoCrim. No. 2:05-cr-00554-LKK-1 Civil No. 2:11-cv-809-LKK-EFBUNITED STATES OF AMERICA, Plaintiff-Respondent, vs. HARVEY L. SEWELL, Defendant-Movant.THE HONORABLE LAWRENCE K. KARLTON UNITED STATES DISTRICT JUDGEMEMORANDUM IN SUPPORT OF AMENDED MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255HARVEY L. SEWELL16188-0973901 Klein BlvdLompoc, CA 93436

TABLE OF CONTENTS

Page:1.) THE CONVICTION AND/OR SENTENCE OF MR.SEWELL IS VIOLATIVE OF HIS SIXTH AMENDMENTRIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL .............................................. 71A.) The Performance Of Counsel For Mr. Sewell Fell Below AnObjective Standard Of Reasonableness During The Pretrial,Plea, Trial, Sentencing And Direct Appeal Process ..................................... 71B1.) Mr. Sewell Was Prejudiced By The Objectively UnreasonablePerformance Of Counsel During The Trial Process WhenCounsel Failed To Advise Him, And Affirmatively MisadvisedHim, As To His Constitutional Right To Testify ....................................... 181B2.) Mr. Sewell Was Prejudiced By The Objectively UnreasonablePerformance Of Counsel During The Plea, Trial, AndSentencing Process When Counsel Failed To Advise Him ToProceed To A Bench Trial On Stipulated Facts ......................................... 301B3.) Mr. Sewell Was Prejudiced By The Cumulative Impact OfMultiple Deficiencies Or Errors By Counsel During ThePretrial, Plea, Trial, Sentencing And Direct Appeal Process .......................... 362.) MR. SEWELL'S PLEA OF NOT GUILTY, CONVICTIONAND SENTENCE ARE VIOLATIVE OF THE SIXTHAMENDMENT .......................................................................... 382A.) Mr. Sewell's Plea Was Not A Voluntary And Intelligent ChoiceAmong The Alternative Courses Of Action Open To HimBecause The Performance Of His Counsel Fell Below AnObjective Standard Of Reasonableness During The PleaProcess .............................................................................. 392B.) Mr. Sewell Was Prejudiced By The Objectively UnreasonablePerformance of Counsel During The Plea Process Because,Absent The Constitutionally Deficient Performance, There Is AReasonable Probability He Would Have Pleaded Guilty OrNolo Contendere Instead Of Proceeding To Trial ....................................... 473.) AN EVIDENTIARY HEARING IS NECESSARY ANDWOULD BE USEFUL TO THIS COURT ........................................................ 58Appendix:United States v. Harvey Sewell, 359 Fed. Appx. 860 2009 U.S. App. LEXIS 27980^th Table of Contents ........................................................................... ii Table of Authorities ........................................................................ iv Memorandum in Support of Section 2255 Motion ................................................. 1 Statement of Facts .......................................................................... 1 Issues Presented ............................................................................. 2 Argument: Conclusion .................................................................................. 61 Certificate of Filing and Service ........................................................... 62 Verification of Exhibits .................................................................... 63 Presentence Report ...................................................................... A Judgment and Commitment Order ........................................................... B District Court Docket Sheets ............................................................ C No. 08-10363; ; (9 Cir. 12-21-09) ............................... D

TABLE OF AUTHORITIES

Cases99-cv-7660 v. 99-cv-7660,329 Fed Appx. 311; 2009 U.S. App. LEXIS 10421 (2^nd Cir. 5-13-09) ...................... 26, 27Agan v. Dugger,835 F.2d 1337, 1338 (11^th Cir. 1987) ..................................................... 58Anderson v. Johnson,338 F.3d 382; 2003 U.S. App. LEXIS 13778 (5^th Cir. 2003) ................................. 16Auman v. United States,67 F.3d 157 (8^th Cir. 1995) .............................................................. 21Ballard v. United States,400 F.3d 404; 2005 U.S. App. LEXIS 4002 (6^th Cir. 2005) ................................... 23Betancourt v. Willis,814 F.2d 1546 (11th Cir. 1987) ........................................................... 38Brown v. Myers,137 F.3d 1154 (9^th Cir. 1998) ............................................................ 10Bruce v. United States,256 F.3d 592; 2001 US. App. LEXIS 15054 (7^th Cir. 2001) .............................. 10, 11Buenoano v. Singletary,963 F.2d 1433; 1992 U.S. App. LEXIS 12462 (11^th Cir. 1992) ............................... 58Burley v. Cabana,818 F.2d 414 (5^th Cir. 1987) ............................................................... 23Campos v. United States,930 F.Supp. 787 (E.D. N.Y. 1996) ....................................................... 3, 28Canaan v. Davis,2003 U.S. Dist. LEXIS 479 (SD IN 1-10-03) ............................................ 26, 28Canada v. Blain's Helicopters, Inc.,831 F.2d 920, 925 (9^th Cir. 1987) ......................................................... 2Chizen v. Hunter,809 F.2d 560 (9th Cir. 1986) ............................................................. 48Ciak v. United States,59 F.3d 296, 306-07 (2^nd Cir. 1995) .................................................. 58, 60DeLuca v. Lord,858 F.Supp. 1330 (S.D.N.Y. 1994) ................................................. 13, 24, 25DeLuca v. Lord,858 F.Supp. 1330, 1361 (S.D.N.Y. 1994) .................................................... 28Ellison v. United States,324 F.2d 710; 1963 U.S. App. LEXIS 3595 (10^th Cir. 1963) .................................. 58Enriquez v. Procunier,752 F.2d 111, 115; 1984 U.S. App. LEXIS 15667 **10-11 (5^th Cir. 1984) ..................... 2Finch v. Vaughn,67 F.3d 909, 916 (11th Cir. 1995) .................................................... 39, 40Foster v. Delo,11 F.3d 1451, 1457 (8^th Cir.),affirmed, 39 F.3d 873 (8^th Cir. 1994) .................................................... 25Foster v. Lockhart,9 F.3d 722 (8^th Cir. 1993) .............................................................. 10Gallego v. United States,174 F.3d 1196; 1999 U.S. App. LEXIS 8611 (11^th Cir. 1999) ............................ 26, 27Geer v. United States,2009 U.S. App. LEXIS 26424 (11^th Cir. 2009) ........................................... 26, 27Golden v. United States,35 F. Supp. 2d 664; 1999 U.S. Dist. LEXIS 6087(ND IN 1999) ............................................................................. 48Green v. United States,365 U.S. 301, 81 S.Ct. 653,5 L.Ed.2d 670 (1961) ................................................................. 25, 28Griffin v. United States,330 F.3d 733 (6^th Cir. 2003) ..................................................... 5, 55, 56Griffin v. United States,330 F.3d 733, 737 (6^th Cir 2003) ................................................. 49, 50, 54Guy v. Cockrell,343 F.3d 348; 2003 U.S. App. LEXIS 16632(5^th Cir. 2003) ................................................................... 6, 58, 60Hal Roach Studios, Inc. v. Richard Feiner Co.,896 F.2d 1542, 1551; 1989 U.S. App. LEXIS 20709 **25-26 (9^th Cir. 1989) ................... 2Harris By and Through Ramseyer v. Blodgett,853 F.Supp. 1239 (W.D. Wash. 1994) .................................................... 4, 36Harris v. Reed,894 F.2d 871 (7th Cir. 1990) ............................................................. 11Harris v. Wood,64 F.3d 1432 (9^th Cir. 1995) ..................................................................... 4, 36Hill v. Lockhart,877 F.2d 698 (8th Cir.), affirmed,894 F.2d 1009 (1990) (en banc) ........................................................ 38, 39Holmes v. United States,876 F.2d 1545 (11th Cir. 1989) ........................................................... 48Houston v. Lack,487 U.S. 266, 276 (1988) .............................................................. 62, 4Iaea v. Sunn,800 F.2d 861 (9th Cir. 1986) .................................................... 38, 40, 48Ingrao v. United States,1997 U.S. Dist. LEXIS 14407 (S.D.N.Y. 1997) ....................................... 42, 49, 54Jackson v. Calderon,2000 U.S. App. LEXIS 9049 (9^th Cir. 5-8-2000) ........................................ 16, 21Jiles v. United States,2003 U.S. App. LEXIS 17091 (7^th Cir. 8-18-03) ............................................. 38Johnson v. Bell,2001 U.S. Dist. LEXIS 25420 **167 (WD TN 2001) ............................................ 2Johnson v. Duckworth,793 F.2d 898, 902 [n. 3] (7^th Cir. 1986) ................................................. 48Johnson v. Newland,1999 U.S. Dist. LEXIS 427 (ND Cal. 1-15-99) ............................................... 36Johnson v. Scott,68 F.3d 106, 109-10 (5^th Cir. 1995) ...................................................... 19Jones v. Barnes,463 U.S. 745, 751, 103 S.Ct. 3308,3312, 77 L.Ed.2d 987 (1983) ............................................................... 26Killian v. Poole,282 F.3d 1204; 2002 U.S. App. LEXIS 3887 (9^th Cir. 2001) .................................. 36Kimmelman v. Morrison,477 U.S. 365, 385-387, 91 L.Ed.2d 305,106 S.Ct. 2574 (1986) ................................................................ passimKoch v. Puckett,907 F.2d 524, 530 (5^th Cir. 1990) ......................................................... 2Lalani v. United States,2009 U.S. App. LEXIS 3847 (11^th Cir. 2-26-09) ............................................. 57Lewandowski v. Makel,949 F.2d 884, 887 (6^th Cir. 1991) .................................................... 39, 40Lewis v. Dretke,355 F.3d 364; 2003 U.S. App. LEXIS 26156 (5^th Cir. 2003) ................................. 20Lindhorst v. United States,585 F.2d 361 (8th Cir. 1978) ........................................................................ 12Lockhart v. Fretwell,506 U.S. 364, 373-375, 122 L.Ed.2d 180,113 S.Ct. 838 (1993) ..................................................................... 19, 20, 21Magana v. Hofbauer,263 F.3d 542 (6th Cir. 2001) ............................................................. 40Mak v. Blodgett,970 F.2d 614; 1992 U.S. App. LEXIS 15964 (9^th Cir. 1992) .................................. 36Martinez v. Ylst,951 F.2d 1153 (9^th Cir. 1991) ........................................................ 27, 28Mask v. McGinnis,28 F. Supp. 2d 122;1998 U.S. Dist. LEXIS 17497 (S.D.N.Y. 1998) ...................................... 41, 49, 54Mathews v. Abramajtys,2000 U.S. Dist. LEXIS 4635 (E.D. Mich. 4-11-00) .......................................... 36Mathews v. Abramajtys,2003 U.S. App. LEXIS 2187; 2003 FED App. 0045P (6^th Cir. 2003)............................ 36Mayo v. Henderson,13 F.3d 528 (2^nd Cir. 1994) ........................................................... 20Mays v. Gibson,2000 U.S. App. LEXIS 8858 (10^th Cir. 2000) ............................................ 16, 21McKee v. United States,167 F.3d 103; 1999 U.S. App. LEXIS 1390 (2^nd Cir. 1999) .................................. 20Moffet v. Kolb,930 F.2d 1156 (7th Cir. 1991) ....................................................................... 11Murray v. Carrier,477 U.S. 478, 91 L.Ed.2d 397,106 S.Ct. 2639 (1986) ..................................................................... 9Nichols v. Butler,953 F.2d 1550, 1553 (11^th Cir. 1992) ..................................................... 25Nichols v. United States,75 F.3d 1137, 1145-46 (7^th Cir. 1996) ................................................. 58, 60Osborn v. Shillinger,861 F.2d 612 (10th Cir. 1988) ............................................................ 20Ostrander v. Green,46 F.3d 347 (4^th Cir. 1995) .......................................................... 38, 47Ouber v. Guarino,293 F.3d 19; 2002 U.S. App. LEXIS 11885 (1^st Cir. 2002) ............................... 26, 28Paprocki v. Foltz,869 F.2d 281, 287 (6^th Cir. 1989) ......................................................... 58Paters v. United States,159 F.3d 1043 (7th Cir. 1998) ....................................................... passimPaters v. United States,159 F.3d 1043; 1998 U.S. App. LEXIS 27932 *12-13(7^th Cir. 1998) .......................................................................... 48Pitcher v. United States,371 F. Supp. 2d 246; 2005 U.S. Dist. LEXIS 10314 (SD NY 2005) ................ 39, 41, 45, 55Porter v. McCollum,___ U.S. ___; 130 S. Ct. 447;2009 U.S. LEXIS 8377 (11-30-09) ........................................................... 18Prou v. United States,199 F.3d 37; 1999 U.S. App. LEXIS 32827 (1^st Cir. 1999) ................................... 20Risher v. United States,992 F.2d 982 (9th Cir. 1993) ........................................................ 38, 40Rock v. Arkansas,483 U.S. 44, 107 S.Ct. 2704,97 L.Ed.2d 37 (1987) ............................................................. 13, 24, 25Rock v. Arkansas,483 U.S. 44, 49-52, 107 S.Ct. 2704,2707-2709, 97 L.Ed.2d 37 (1987) .............................................. 13, 24, 25, 26Rogers-Bey v. Lane,896 F.2d 279, 283 (7^th Cir.), cert. denied,498 U.S. 831, 111 S.Ct. 93 (1990) ........................................................ 26Rompilla v. Beard,___ U.S. ___, 125 S. Ct. 2456; 162 L. Ed. 2d 360;2005 U.S. LEXIS 4846 (2005) ........................................................... 8, 10Shushansky v. United States,1994 U.S. Dist. LEXIS 18589 (ED NY 1994) ................................................. 23Slevin v. United States,1999 U.S. Dist. LEXIS 11430 (S.D.N.Y. 7-15-99) ................................... 42, 49, 54Smith v. McCormick,914 F.2d 1153 (9th Cir. 1990) .............................................................. 12Smith v. Stewart,140 F.3d 1263 (9^th Cir.), cert. denied,525 U.S. 929 (1998)...................................................................... 10Smith v. United States,2003 U.S. App. LEXIS 22558 (6^th Cir. 11-3-03) .................................... 49, 50, 54Smith v. United States,348 F.3d 545; 2003 U.S. App. LEXIS 22558 (6^th Cir. 2003) ............................. 41, 49Smith v. United States,871 F.Supp. 251 (E.D. Va. 1994) ...................................................... 16, 20Soffar v. Dretke,368 F.3d 441, 478-480; 2004 U.S. App. LEXIS 7793 **106-111 (5^th Cir. 2004) ................ 19Strickland v. Washington,466 U.S. 668, 80 L.Ed.2d 674,104 S.Ct. 2052 (1984) ............................................................... passimTejada v. Dugger,941 F.2d 1551, 1559 (11^th Cir. 1991) ........................................................ 58Turner v. State of Tennessee,664 F.Supp. 1113 (M.D. Tenn. 1986),affirmed 858 F.2d 1201 (6th Cir.),vacated on other grounds, 492 U.S. 902,109 S.Ct. 3208, 106 L.Ed.2d 559(1989),remanded, 883 F.2d 38 (6th Cir.),reinstated as modified, 726 F.Supp. 1113,affirmed as modified, 940 F.2d 1000 (6th Cir.),cert. denied, U.S. 112 S.Ct. 915,116 L.Ed.2d 815 (1992) ................................................................ passimTyler v. United States,1999 U.S. App. LEXIS 13621 (6^th Cir. 1999) ........................................... passimUnited States ex rel. Caruso v. Zelinsky,689 F.2d 438 (3^rd Cir. 1982) ............................................................. 49United States v. Acklen,47 F.3d 739 (5th Cir. 1995) ........................................................... 11, 21United States v. Al King Jones,2001 U.S. Dist. LEXIS 1740 (E.D. LA 2-9-01) ........................................... 9, 16United States v. Alaniz,351 F.3d 365; 2003 U.S. App. LEXIS 24729 (8^th Cir. 2003)................................. 22United States v. Alexander,2006 US. App. LEXIS 5602 (DC Cir. 3-2-06) ................................................. 9United States v. Alferahin,2006 U.S. App. LEXIS 575 (9^th Cir. 2006) ................................................. 10United States v. Ali,186 F.3d 1; 1999 U.S. App. LEXIS 17734 (1^st Cir. 1999) ........................... 39, 40, 49United States v. Booth,2005 U.S. App. LEXIS 28896 (3^rd Cir. 12-29-05) ....................................... 23, 41United States v. Booth,432 F.3d 542; 2005 US. App. LEXIS 28896 (3^rd Cir. 2005) ..................... 40, 45, 49, 54United States v. Brannon,2002 U.S. App. LEXIS 20969 (4^th Cir. 10-7-02) ....................................... 50, 54United States v. Breckenridge,93 F.3d 132 (4^th Cir. 1996) ............................................................. 21United States v. Briggs,939 F.2d 222 (5th Cir. 1991) ............................................................. 12United States v. Brown,316 F.3d 1151; 2003 U.S. App. LEXIS 962 (10^th Cir. 2003) ................................ 22United States v. Burrows,872 F.2d 915 (9^th Cir. 1989) ......................................................... 11, 12United States v. Castro,26 F.3d 557; 1994 U.S. App. LEXIS 16934 (5^th Cir. 1994) ................................ 23United States v. Dawson,857 F.2d 923 (3^rd Cir. 1988) ......................................................... 1, 11United States v. De La Fuente,8 F.3d 1333 (9^th Cir. 1993) ............................................................ 22United States v. Donn,661 F.2d 820; 1981 U.S. App. LEXIS 15876 (9^th Cir. 1981) ................................ 23United States v. Edwin Rodriguez,2001 U.S. Dist. LEXIS 3545 (ED PA 3-28-01) ........................................... 27, 28United States v. Estes,1998 U.S. App. LEXIS 31866 (9^th Cir. 12-17-98) .......................................... 34United States v. Estrada,849 F.2d 1304 (1^st Cir. 1988) ........................................................... 12United States v. Fisher,38 F.3d 1144, 1147 (10^th Cir. 1994) ..................................................... 1United States v. Ford,918 F.2d 1343, 1350 (8^th Cir. 1990) ..................................................... 22United States v. Foster,988 F.2d 206, 210 (D.C. Cir. 1993) ......................................................... 16United States v. Garrett,90 F.3d 210; 1996 U.S. App. LEXIS 17621 (7^th Cir. 1996) .............................. 4, 34United States v. Gaviria,116 F.3d 1498 (D.C. Cir. 1997) ....................................................... 40, 42United States v. Gonzalez,98 Fed. Appx. 825; 2004 U.S. App. LEXIS 10946 (10^th Cir. 2004) ............................ 58United States v. Gordon,156 F.3d 376, 379 (2^nd Cir. 1998) ................................................... passimUnited States v. Grammas,376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5th Cir. 2004) ............................... passimUnited States v. Gray,63 F.3d 57 (1^st Cir. 1995) .......................................................... 40, 47United States v. Grist,1998 U.S. App. LEXIS 20199;1998 Colo. J. C.A.R. 4384 (10^th Cir. 1998) ............................................. 58, 60United States v. Guarino,293 F.3d 19; 2002 U.S. App. LEXIS 11885 (1^st Cir. 2002) ................................... 26United States v. Guerra,1996 U.S. App. LEXIS 24982 (5^th Cir. 9-25-96) ........................................... 39United States v. Hayes,2005 U.S. Dist. LEXIS 18309 (ED LA 8-24-05) .............................................. 23United States v. Headley,923 F.2d 1079 (3^rd Cir. 1991) .................................................... 10, 11, 21United States v. Hearst,638 F.2d 1190, 1194 (9^th Cir. 1980) ...................................................... 1United States v. Herrera,412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 6-10-05) ............................. 40United States v. Holder,410 F.3d 651; 2005 U.S. App. LEXIS 10380 (10^th Cir. 2005) ........................... 10, 12United States v. Holguin-Herrera,412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 2005) ........................ 39, 41, 46United States v. Horey,333 F.3d 1185; 2003 U.S. App. LEXIS 12732(10^th Cir. 2003) ........................................................................ 21United States v. Hurtado,2003 U.S. App. LEXIS 7894 (2^nd Cir. 4-24-03) ............................................ 42United States v. Hylton,2002 U.S. App. LEXIS 12818 (DC Cir. 6-28-02) ............................................. 10United States v. Jolley,2007 U.S. App. LEXIS 25334 (5^th Cir. 2007) .............................................. 40United States v. Knight,266 F.3d 203, 208 (3^rd Cir. 2001) ....................................................... 22United States v. Lopez,2007 U.S. App. LEXIS 25225 (9^th Cir. 10-24-07) ............................................ 45United States v. Lopez,2007 U.S. App. LEXIS 25225 (9^th Cir. 2007) ................................................ 42United States v. Lore,26 F.Supp. 2d 729, 1998 U.S. Dist. LEXIS 20799 (D.N.J. 1998) ......................... 27, 28United States v. Manjarrez,258 F.3d 618, 623-24 (7^th Cir. 2001) .................................................... 26United States v. Martinez,1999 U.S. App. LEXIS 15951 (11^th Cir. 7-15-99) ........................................... 28United States v. McCoy,215 F.3d 102 (D.C. Cir. 2000) ............................................................ 40United States v. McCoy,410 F.3d 124; 2005 U.S. App. LEXIS 10372 (3^rd Cir. 2005) ............................ 10, 12United States v. McMeans,927 F.2d 162, 163 (4^th Cir. 1991) ........................................................ 26United States v. Moskovits,844 F.Supp. 202, 1993 U.S. Dist. LEXIS 8532 (E.D. Pa. 1993) ........................... 27, 28United States v. Nahodil,36 F.3d 323 (3rd Cir. 1994) ......................................................... 39, 48United States v. Olano,507 U.S. 725, 735 (1993) ................................................................. 18United States v. Osuna,189 F.3d 1289, 1294 (10^th Cir. 1999) .................................................... 22United States v. Pielago,135 F.3d 703, 714, n. 1 (11^th Cir. 1998) ................................................. 22United States v. Ramsey,323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 (D DC 2004) ..................................... 4, 36United States v. Ramsey,323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 **43-44 (D DC 2004) ........... 39, 41, 46, 55United States v. Reyes,2002 U.S. App. LEXIS 11411 (5^th Cir. 6-12-02) ............................................. 40United States v. Robinson,2008 U.S. Dist. LEXIS 89889 **4-6 (WD LA 9-16-08) ......................................... 34United States v. Rodriguez-Razo,962 F.2d 1418, 1423-24 (9^th Cir. 1992) ..................................................... 22United States v. Rodriguez-Rodriguez,929 F.2d 747 (1^st Cir. 1991) ................................................................ 1United States v. Rogers,129 F.3d 76; 1997 U.S. App. LEXIS 29784 (2^nd Cir. 1997) ...................... 4, 14, 31, 33United States v. Russel,2002 U.S. App. LEXIS 9538 (4^th Cir. 5-20-02) ............................................ 36United States v. Ryan,964 F. Supp. 526; 1997 U.S. Dist. LEXIS 6987 (D MA 1997) .......................... 14, 31, 33United States v. Scott,909 F.2d 488; 1990 U.S. App. LEXIS 14361 (11^th Cir. 1990) ........................... 27, 28United States v. Sergio,934 F.2d 875, 881 (7th Cir. 1991) ........................................................ 16United States v. Shepard,322 U.S. App. D.C. 160; 102 F.3d 558 (D.C. Cir. 12-6-96) ............................. 43, 51United States v. Smack,2003 U.S. App. LEXIS 21746 (3^rd Cir. 10-24-03) .......................................... 21United States v. Soto,132 F.3d 56, 58 (D.C. Cir. 1997) ...................................................... 16, 22United States v. Stephen,2002 U.S. App. LEXIS 21158 (4^th Cir. 10-10-02) .......................................... 40United States v. Stevens,1997 U.S. App. LEXIS 32264 (4^th Cir. 1997) .......................................... 27, 28United States v. Stout,2006 U.S. App. LEXIS 5630 (10^th Cir. 3-6-06) ................................ 39, 41, 46, 55United States v. Streater,70 F.3d 1314 (D.C. 1995) ............................................................. 38, 48United States v. Stricklin,290 F.3d 748; 2002 U.S. App. LEXIS 9118 (5^th Cir. 5-1-02) ............................ 10, 21United States v. Taylor,139 F.3d 924 (D.C. Cir. 1998) ............................................................ 48United States v. Teague,953 F.2d 1525, 1532 (11^th Cir.) (en banc),cert. denied, 506 U.S. 842, 113 S.Ct. 127,121 L.Ed.2d 82 (1992) ................................................................ 26, 27United States v. Thornton,2005 U.S. Dist. LEXIS 17164 (ED PA 2005) .................................................. 10United States v. Turner,2007 U.S. Dist. LEXIS 14874 **18-21 (ND TX 3-2-07) ..................................... 4, 34United States v. Turner,2007 U.S. Dist. LEXIS 37844 (ND TX 5-23-07) .......................................... passimUnited States v. Van Dyke,14 F.3d 415, 417-424 (8^th Cir. 1994) ................................................. 4, 36United States v. Villasenor,114 F.3d 970; 1997 U.S. App. LEXIS 13605 (9^th Cir. 1997) ...................... 4, 14, 31, 33United States v. Washington,1996 U.S. App. LEXIS 24837 (4^th Cir. 1996) .............................................. 48United States v. White,371 F. Supp. 2d 378; 2005 U.S. Dist. LEXIS 10355 (WD NY 2005) ........................ 23, 41United States v. Witherspoon,231 F.3d 923; 2000 U.S. App. LEXIS 27778(4^th Cir. 11-6-00) ............................................................. 12, 58, 60Virgin Islands v. Weatherwax,20 F.3d 572 (3rd Cir. 1994) .................................................. 6, 12, 58, 59Wanatee v. Ault,39 F. Supp. 2d 1164;1999 U.S. Dist. LEXIS 3520 (N.D. Iowa 3-22-99) ................................... 42, 49, 54Ward v. Sternes,209 F. Supp. 2d 950; 2002 U.S. Dist. LEXIS 11962 (CD IL 2002) ........................ 26, 28Washington v. Smith,219 F.3d 620, 629-31 (7^th Cir. 2000) .................................................... 11Wiggins v. Smith,539 U.S. 510; 123 S. Ct. 2527, 2535;156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003) ........................................ passimWilliams v. Taylor,120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64;146 L. Ed. 2d 389 (4-18-00) ..................................................... 19, 20, 21, 36Wright v. Estelle,572 F.2d 1071 (5^th Cir.) (en banc),cert. denied, 439 U.S. 1004, 99 S.Ct. 617,58 L.Ed.2d 680 (1978) ................................................................... 26Zettlemoyer v. Fulcomer,923 F.2d 284, 298 (3^rd Cir. 1991) ............................................................ 2Other Authorities10A C. Wright, A. Miller, M. Kane,Federal Practice Procedure § 2722 at 58-60 (2d ed. 1983) .................................... 2Federal Rule of Criminal Procedure 33 ........................................................ 18Judicial Business of the United States Courts, 2007,Table D4, U.S. District Courts — Criminal Defendants Disposed of,by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf.................... 14, 30, 43, 51Rule 6 of the Rules GoverningSection 2255 Proceedings .......................................... passimU.S.C.A. Sixth Amendment......................................................... 39, 41, 45, 55U.S.S.G. § 3E1.1 ............................................................ 43, 49, 51, 54United States District CourtEastern District of CaliforniaAt SacramentoUNITED STATES OF AMERICA, ) Crim. No. 2:05-cr-00554-LKK-1) Civil No. 2:11-cv-809-LKK-EFBPlaintiff-Respondent, ) HON. LAWRENCE K. KARLTON) MAG. JUDGE BRENNANvs. ))HARVEY L. SEWELL, ) MEMORANDUM IN SUPPORT) OF SECTION 2255 MOTIONDefendant-Movant. )COMES NOW DEFENDANT-MOVANT Harvey L. Sewell and submits the following memorandum in support of his motion pursuant to 28 U.S.C. § 2255. This memorandum includes and incorporates by reference the Section 2255 Model Court Form as well as the information contained and incorporated by reference therein.

STATEMENT OF FACTS

The relevant facts of the motion and of this memorandum are set forth and pleaded in the Section 2255 Model Court Form and the Statement of Claim attached thereto. This Court should accept the allegations of Mr. Sewell as true where they are not "conclusively" contradicted by the "files and records of the case" for purposes of determining whether Mr. Sewell has stated a prima facie claim for relief and is therefore entitled to an evidentiary hearing.^1a Since the Court must necessarily review the allegations of the Section 2255 motion for sufficiency, Mr. Sewell will not repeat those allegations in this memorandum except as necessary.

1a See United States v. Dawson, 857 F.2d 923, 927-928 (3^rd Cir. 1988) and United States v. Rodriguez-Rodriguez, 929 F.2d 747, 752 (1^st Cir. 1991)

ISSUES PRESENTED

Issue:Page:Mr. Sewell Answers: "Yes"Most Apposite Case:United States v. Glover, 531 U.S. 198 121 S. Ct. 696 148 L. Ed. 2d 604 2001 U.S. LEXIS 639 Williams v. Taylor, 120 S. Ct. 1495 1512-16 2000 U.S. LEXIS 2837 146 L. Ed. 2d 389 Wiggins v. Smith, 539 U.S. 510 123 S. Ct. 2527 2535 156 L. Ed. 2d 471 2003 U.S. LEXIS 5014 Strickland v. Washington 466 U.S. 668 80 L.Ed.2d 674 104 S.Ct. 2052 Mr. Sewell Answers: "Yes"Most Apposite Cases:Wiggins v. Smith, 539 U.S. 510 123 S. Ct. 2527 2535 156 L. Ed. 2d 471 2003 U.S. LEXIS 5014 Kimmelman v. Morrison, 477 U.S. 365 91 L.Ed.2d 305 106 S.Ct. 2574 Williams v. Taylor, 120 S. Ct. 1495 1512-16 2000 U.S. LEXIS 2837 146 L. Ed. 2d 389 Mr. Sewell Answers: "Yes"Most Apposite Cases:United States v. Glover, 531 U.S. 198 121 S. Ct. 696 148 L. Ed. 2d 604 2001 U.S. LEXIS 639 Williams v. Taylor, 120 S. Ct. 1495 1512-16 2000 U.S. LEXIS 2837 146 L. Ed. 2d 389 United States v. Martinez, 1999 U.S. App. LEXIS 15951^thCampos v. United States, 930 F.Supp. 787 793 DeLuca v. Lord, 858 F.Supp. 1330 1361 Mr. Sewell Answers: "Yes"Most Apposite Cases:United States v. Glover, 531 U.S. 198 121 S. Ct. 696 148 L. Ed. 2d 604 2001 U.S. LEXIS 639 Williams v. Taylor, 120 S. Ct. 1495 1512-16 2000 U.S. LEXIS 2837 146 L. Ed. 2d 389 United States v. Turner, 2007 U.S. Dist. LEXIS 14874 United States v. Villasenor, 114 F.3d 970 1997 U.S. App. LEXIS 13605^thUnited States v. Rogers, 129 F.3d 76 1997 U.S. App. LEXIS 29784^ndUnited States v. Garrett, 90 F.3d 210 1996 U.S. App. LEXIS 17621^thMr. Sewell Answers: "Yes"Most Apposite Cases:Harris By and Through Ramseyer v. Blodgett, 853 F.Supp. 1239 Harris v. Wood, 64 F.3d 1432^thUnited States v. Ramsey, 323 F. Supp. 2d 27 2004 U.S. Dist. LEXIS 12462 United States v. Van Dyke, 14 F.3d 415 417-424^thMr. Sewell Answers: "Yes"Most Apposite Cases:United States v. Blaylock, 20 F.3d 1458^thKates v. United States, 930 F.Supp. 189 United States v. Gordon, 156 F.3d 376 United States v. Turner, 2007 U.S. Dist. LEXIS 37844 Mr. Sewell Answers: "It was not a voluntary plea"Most Apposite Cases:United States v. Blaylock, 20 F.3d 1458^thGriffin v. United States, 330 F.3d 733^thKates v. United States, 930 F.Supp. 189 Mr. Sewell Answers: "He Was Prejudiced"Most Apposite Cases:United States v. Blaylock, 20 F.3d 1458^thKates v. United States, 930 F.Supp. 189 Mr. Sewell Answers: "Yes"Most Apposite Cases:United States v. Blaylock, 20 F.3d 1458^thGuy v. Cockrell, 343 F.3d 348 2003 U.S. App. LEXIS 16632^thVirgin Islands v. Weatherwax, 20 F.3d 572^rd 1.) Whether The Conviction And/Or Sentence Of Mr. Sewell Is Violative Of His Sixth Amendment Right To Effective Assistance Of Counsel? ...................................................................... 7 ; ; ; (2001) , ; , **53-64; (4-18-00) ; , ; ; (2003) , , (1984) 1A.) Whether The Performance Of Counsel For Mr. Sewell Fell Below An Objective Standard Of Reasonableness During The Pretrial, Plea, Trial, Sentencing And Direct Appeal Process? ............................... 7 ; , ; ; (2003) , , (1986) , ; , **53-64; (4-18-00) 1B1.) Whether Mr. Sewell Was Prejudiced By The Objectively Unreasonable Performance Of Counsel During The Trial Process When Counsel Failed To Advise Him, And Affirmatively Misadvised Him, As To His Constitutional Right To Testify? ...................... 18 ; ; ; (2001) , ; , **53-64; (4-18-00) (11 Cir. 7-15-99) , (E.D. N.Y. 1996) , (S.D.N.Y. 1994) 1B2.) Whether Mr. Sewell Was Prejudiced By The Objectively Unreasonable Performance Of Counsel During The Plea, Trial, And Sentencing Process When Counsel Failed To Advise Him To Proceed To A Bench Trial On Stipulated Facts? .................................... 30 ; ; ; (2001) , ; , **53-64; (4-18-00) **18-21 (ND TX 3-2-07) ; (9 Cir. 1997) ; (2 Cir. 1997) ; (7 Cir. 1996) 1B3.) Whether Mr. Sewell Was Prejudiced By The Cumulative Impact Of Multiple Deficiencies Or Errors By Counsel During The Pretrial, Plea, Trial, Sentencing And Direct Appeal Process? .................... 36 (W.D. Wash. 1994) (9 Cir. 1995) ; (D DC 2004) , (8 Cir. 1994) 2.) Whether Mr. Sewell's Plea Of Not Guilty, Conviction And Sentence Are Violative Of The Sixth Amendment? .................................. 38 (9 Cir. 1994) (E.D. Pa. 1996) (2d Cir. 1998) (ND TX 5-23-07) 2A.) Whether Mr. Sewell's Plea Was A Voluntary And Intelligent Choice Among The Alternative Courses Of Action Open To Him Where The Performance Of His Counsel Fell Below An Objective Standard Of Reasonableness During The Plea Process? .............................. 39 (9 Cir. 1994) (6 Cir. 2003) (E.D. Pa. 1996) 2B.) Whether Mr. Sewell Was Prejudiced By The Objectively Unreasonable Performance Of Counsel During The Plea Process Where, Absent The Constitutionally Deficient Performance, There Is A Reasonable Probability He Would Have Pleaded Guilty Or Nolo Contendere Instead Of Proceeding To Trial? ................................. 47 (9 Cir. 1994) (E.D. Pa. 1996) 3.) Whether An Evidentiary Hearing Is Necessary And Would Be Useful To This Court? ........................................................... 58 (9 Cir. 1994) ; (5 Cir. 2003) (3 Cir. 1994)

ARGUMENT

1.) THE CONVICTION AND/OR SENTENCE OF MR. SEWELL IS VIOLATIVE OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

1A.) The Performance Of Counsel For Mr. Sewell Fell Below An Objective Standard Of Reasonableness During The Pretrial, Plea, Trial, Sentencing And Direct Appeal Process.

In Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), the Supreme Court established a two prong test to govern ineffective assistance of counsel claims. To obtain reversal of a conviction or to vacate a sentence based on ineffective assistance of counsel the defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's objectively unreasonable performance, the result of the proceeding would have been different. Id. 466 U.S. at 688-689; Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00); Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003).

The Court stated that, "judicial scrutiny of counsel's performance must be highly deferential" and added that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance". Id.

The Court clarified that this reference to "highly deferential scrutiny referred only^2a to the first or performance prong of the test and meant that,

2a The Court stated that "factors which may actually have entered into counsel's selection of strategies and . . . may thus affect the performance inquiry . . . are irrelevant to the prejudice inquiry. " Strickland v. Washington, 466 U.S. at 695

". . . the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"

Strickland v. Washington, 466 U.S. at 689-691

The Court added that,

". . . strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make a reasonable decision that makes particular investigations unnecessary." Id

Two years after its Strickland decision, the Court reaffirmed that this portion of the decision sets forth what test that can be made^3a in evaluating whether the performance of counsel was within the range of "reasonable professional assistance", or fell below an objective standard of reasonableness. Kimmelman v. Morrison, 477 U.S. 365, 385-387, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986). See also: Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00); Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003); Rompilla v. Beard, ___ U.S. ___, 125 S. Ct. 2456; 162 L. Ed. 2d 360; 2005 U.S. LEXIS 4846 (2005).

3a This presupposes, for the instant argument, that the defendant provided counsel with complete and accurate information and did not place any restrictions on counsel's strategy. Strickland v. Washington, 466 U.S. at 691.

The Supreme Court noted that,

. . . a single, serious error may support a claim of ineffective assistance of counsel."

Kimmelman v. Morrison, 477 U.S. at 384. The Court added that this "single serious error" could cause counsel's performance to fall "below the level of reasonable professional assistance", even where, "counsel's performance at trial [was] generally creditable enough", and even where counsel had made "vigorous cross-examination, attempts to discredit witnesses, and [an] effort to establish a different version of the facts." Id. 477 U.S. at 386^4a

4a See also United States v. Alexander, 2006 U.S. App. LEXIS 5602 (DC Cir. 3-2-06) (same); Murray v. Carrier, 477 U.S. 478, 496, 91 L.Ed.2d 397, 106 S.Ct. 2639 (1986) ("The right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial."); Smith v. United States, 871 F.Supp. 251, 255 [n. 8] (E.D. Va. 1994) (finding performance below constitutional standards for "failure to raise an objection to a clear and indisputable error in the PSR". but pointing out that "[t]he error was an innocent inadvertence, and not indicative of the entirety of counsel's representation of petitioner, which was competent and effective in all other respects."); United States v. AlKing Jones, 2001 U.S. Dist. LEXIS 1740 (E.D. LA 2-9-01) (same).

The Court held that the determining factor was whether or not counsel's "single serious error" or "failure" was the result of, or attributable to, a trial "strategy". Id. 477 U.S. 384-386; Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00); Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003).

The Court then found that no "strategy" was involved in that case and that counsel's performance thereby fell below the Strickland v. Washington objective standard because counsel's failure was based "on counsel's mistaken beliefs" as to the laws governing discovery. Id. 477 U.S. at 385.

The Supreme Court added:

"Viewing counsel's failure to conduct any discovery from his perspective at the time he decided to forego that stage of pretrial preparation and applying a 'heavy measure of deference', ibid., to his judgment, we find counsel's decision unreasonable, that is, contrary to prevailing professional norms. The justification Morrison's attorney offered for his omission betray a startling ignorance of the law — or a weak attempt to shift blame for inadequate preparation. 'Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' Id. Respondent's lawyer neither investigated, nor made a reasonable decision not to investigate the State's case through discovery."

Kimmelman v. Morrison, 477 U.S. at 385.

In other words, the Court determined that counsel's omissions were not part of any "strategy" or trial tactic because they had not been taken after thorough investigation of the law and facts relevant to all plausible options available to counsel. From this, the Court determined that the omissions were professionally unreasonable and had caused counsel's performance to fall below the objective standard of Strickland. See Kimmelman v. Morrison, 477 U.S. at 385-387; Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00); Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003) (counsels' failure to investigate mitigating evidence could not be strategic "because the investigation supporting their choice was unreasonable"); Rompilla v. Beard, ___ U.S. ___, 125 S. Ct. 2456; 162 L. Ed. 2d 360; 2005 U.S. LEXIS 4846 (2005).^5a

5a The decisions of the lower Courts have followed this unambiguous mandate from the Supreme Court. See United States v. Stricklin, 290 F.3d 748; 2002 U.S. App. LEXIS 9118 (5^th Cir. 5-1-02) (counsel's performance below objective standard of Strickland due to counsel's failure to investigate guidelines and case law defining "mixture or substance" for sentencing for narcotics violations); United States v. Hylton, 2002 U.S. App. LEXIS 12818 (DC Cir. 6-28-02) (counsel's performance below objective standard of Strickland due to failure to investigate facts and law relevant to defense at trial); United States v. Holder, 410 F.3d 651; 2005 U.S. App. LEXIS 10380 (10^th Cir. 2005) (same — failure to call defense witness); United States v. Alferahin, 2006 U.S. App. LEXIS 575 (9^th Cir. 2006) (failure to move for materiality jury instruction); United States v. Thornton, 2005 U.S. Dist. LEXIS 17164 (ED PA 2005) (failure to object to introduction of prejudicial Fed.R.Evid. 404(b) evidence); United States v. McCoy, 410 F.3d 124; 2005 U.S. App. LEXIS 10372 (3^rd Cir. 2005) (attorney agreed to prejudicial stipulation at trial); Bruce v. United States, 256 F.3d 592; 2001 U.S. App. LEXIS 15054 (7^th Cir. 2001); Brown v. Myers, 137 F.3d 1154 (9^th Cir. 1998) (counsel failed to investigate and present available testimony supporting petitioner's alibi); United States v. Kauffman, 109 F.3d 186 (3^rd Cir. 1997) (failure to investigate law and facts relevant to plausible defense ineffective assistance); Williamson v. Ward, 110 F.3d 1508 (10^th Cir. 1997) (same); Foster v. Lockhart, 9 F.3d 722, 726 (8^th Cir. 1993) (failure to investigate law and facts relevant to plausible defense ineffective assistance); United States v. Headley, 923 F.2d 1079, 1083-84 (3^rd Cir. 1991) (same — Guideline case involving failure to investigate facts and law relative to motion for reduction in sentence for "minor role"); Smith v. Stewart, 140 F.3d 1263 (9^th Cir.), cert. denied, 525 U.S. 929 (1998) (Failure to investigate mitigating evidence was ineffective); Holsomback v. White, 133 F.3d 1382 (11^th Cir. 1998) (failure to investigate was ineffective assistance of counsel).

In short, no deference is due to counsel's actions, and the performance of counsel falls below the Strickland objective standard of reasonableness^6a if counsel's specific acts or omissions are not demonstrably^7a the result of actual strategic choices made between or among all plausible options "after thorough investigation of law and facts relevant to [the] options." Strickland, 466 U.S. at 691; Kimmelman v. Morrison, 477 U.S. at 385-387; Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00)⁸

6a For purposes of this portion of the Strickland analysis, the Court presumes that counsel's failures were at least potentially prejudicial to the defendant. Kimmelman v. Morrison, 477 U.S. at 365, 387, 390-91.

7a See Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003) (court's "assumption" that counsel made reasonable investigation vacated when unsupported by the record); Bruce v. United States, 256 F.3d 592; 2001 U.S. App. LEXIS 15054 (7^th Cir. 2001) (absent factual support in the record court could not rely on presumption attorney's failure to investigate was reasonable); Washington v. Smith, 219 F.3d 620, 629-31 (7^th Cir. 2000) (performance professionally unreasonable where counsel failed to produce critical alibi witness at trial; counsel made only "minimal attempts" to contact witness before trial and waited to subpoena her until two days before she was to testify, despite knowing that she was "hard to reach"); United States v. Burrows, 872 F.2d 915, 918-919 (9^th Cir. 1989) (record must "conclusively" demonstrate strategic nature of counsel's actions); Harris v. Reed, 894 F.2d 871, 878 (7^th Cir. 1990) (reviewing court should "not construct strategic defenses which counsel does not offer") (citing Kimmelman v. Morrison, 477 U.S. at 386); Moffet v. Kolb, 930 F.2d 1156, 1160-61 (7^th Cir. 1991) (counsel's unexplained failure to use available police report, to impeach prosecution witness's statements and support theory of defense, below objective standard of Strickland); United States v. Headley, 923 F.2d 1079, 1084 (3rd Cir. 1991) (remanding for hearing where there was "[no] rational basis" in the record to believe that sentencing counsel's failure, to argue for downward adjustment in Sentencing Guidelines for minor role, was a "strategic choice"); United States v. Acklen, 47 F.3d 739, 743-44 (5^th Cir. 1995) (remanding for evidentiary hearing where was nothing in record to indicate counsel's failures were attributable to strategic choice among all plausible alternatives available for defense); United States v. Dawson, 857 F.2d 923, 929 (3^rd Cir. 1988) (absent evidence in the record, "this court will not speculate on trial counsel's motives"); Nichols v. United States, 75 F.3d 1137 (7^th Cir. 1996) (same).

8 The courts have decided that counsel's failure to consider or investigate laws and facts relevant to potentially viable defenses cannot be said to be the result of reasonable professional judgment, nor can it be termed "strategic" or "tactical" or "objectively reasonable", because "counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made." Gray, supra, 878 F.2d at 711 (citing Strickland, 466 U.S. at 690-91); Holsomback v. White, 133 F.3d 1382 (11^th Cir. 1998) (same); Nichols v. United States, 75 F.3d 1137 (7^th Cir. 1996)

Where a convicted defendant is making a claim of ineffective assistance of counsel, the defendant,

". . . must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment."

Strickland v. Washington, 466 U.S. at 690.

If the record does not "conclusively" demonstrate "strategic reasons" for counsel's failures, the district court entertaining a motion under 28 U.S.C. § 2255 must hold an evidentiary hearing.⁹ A subsequent affidavit from counsel will not suffice to establish a trial strategy, nor absolve the district court from the requirement of holding an evidentiary hearing.¹⁰

9 United States v. Holder, 410 F.3d 651; 2005 U.S. App. LEXIS 10380 (10^th Cir. 2005) (remanding for evidentiary hearing where no explanation in record for counsel's complained of failure); United States v. McCoy, 410 F.3d 124; 2005 U.S. App. LEXIS 10372 (3^rd Cir. 2005) (same); United States v. Burrows, 872 F.2d 915, 918-919 (9^th Cir. 1989) and United States v. Briggs, 939 F.2d 222, 228 (5^th Cir. 1991); United States v. Estrada, 849 F.2d 1304, 1306-1307 (1st Cir. 1988); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3^rd Cir. 1994); Shaw v. United States, 24 F.3d 1040, 1043 (8^th Cir. 1994) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel unless claim inadequate on its face or if records conclusively refute factual assertions of claim); United States v. Blaylock, 20 F.3d 1458, 1465 (9^th Cir. 1994) (evidentiary hearing required unless Section 2255 motion, files, and trial record "conclusively show" petitioner entitled to no relief); Nichols v. United States, 75 F.3d 1137 (7^th Cir. 1996) (same); United States v. Witherspoon, 231 F.3d 923; 2000 U.S. App. LEXIS 27778 (4^th Cir. 11-6-00) (petitioner entitled to evidentiary hearing when motion presented colorable claim and unclear whether counter affidavit disputed defendant's allegations).

10 Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990); United States v. Giardino, 797 F.2d 30, 32 (1^st Cir. 1986); Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978).

In the instant case, Mr. Sewell has made specific, sworn, factual allegations which this Court should accept as true for the purpose of considering whether to hold an evidentiary hearing, because they are not conclusively disproved by the files and records of this case.

The allegations of Mr. Sewell as to the "performance" of counsel include the following:

CLAIM NUMBER ONE

23.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

24.) Mr. Sewell's conviction and/or sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel as hereinafter more fully appears.

25.) Counsel could have but did not advise Mr. Sewell that he had a constitutional right to testify in the trial process even if counsel advised and believed that such testimony would be inadvisable from counsel's viewpoint.

26.) Counsel's omissions set forth in ¶ 25 were based upon an incomplete investigation of the law relevant to Mr. Sewell's trial process.

27.) Counsel could have but did not investigate case law such as DeLuca v. Lord, 858 F.Supp. 1330, 1353-1356 (S.D.N.Y. 1994) and Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-2709, 97 L.Ed.2d 37 (1987) and authorities therein.

28.) The cases set forth in the foregoing paragraph stand for the proposition that

. . . the right to testify 'is one of the rights that are essential to due process of law in a fair adversary process and that it is 'even more fundamental to a person defense than the right of self representation.

DeLuca v. Lord, 858 F.Supp. at 1354 (quoting Rock v. Arkansas, 483 U.S. at 51-52, 107 S.Ct. at 2709).

29.) The cases set forth in the foregoing paragraphs also stand for the proposition that defense counsel is "responsible for informing his client that [he] has both the right to testify, and the ultimate authority to decide whether or not to take the stand". DeLuca v. Lord, 858 F.Supp. at 1359-60.

30.) Counsel's omissions set forth in ¶¶ 25-29 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell in the trial process.

31.) Counsel's omissions set forth in ¶¶ 25-29 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause in the trial process.

* * * * * * * * * *

CLAIM NUMBER THREE

63.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

64.) Mr. Sewell's sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea, trial, and sentencing process as hereinafter more fully appears.

65.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to proceed to a jury trial or, instead, to move for a bench trial on stipulated facts.

66.) Counsel could have but did not fully advise Mr. Sewell as to the requirements for obtaining a reduction in his sentence for "acceptance of responsibility".

67.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.¹¹

68.) Counsel could have but did not fully advise Mr. Sewell that he could obtain District Court and appellate review of the the sufficiency of the evidence, while still obtaining a reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility, by proceeding to a bench trial on stipulated facts, while preserving his legal issue for appellate review.

69.) Counsel could have but did not fully advise Mr. Sewell that, if he proceeded to a bench trial on stipulated facts, he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors.

70.) Counsel's acts and omissions set forth in ¶¶ 65-69 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to proceed to a bench or jury trial.

71.) Counsel could have but did not investigate case law such as United States v. Villasenor, 114 F.3d 970; 1997 U.S. App. LEXIS 13605 (9^th Cir. 1997) (affirming 2 levels reduction in sentence for acceptance of responsibility after bench trial on stipulated facts); United States v. Rogers, 129 F.3d 76; 1997 U.S. App. LEXIS 29784 (2^nd Cir. 1997) (same); United States v. Ryan, 964 F. Supp. 526; 1997 U.S. Dist. LEXIS 6987 (D MA 1997) (same).

72.) Counsel could have but did not investigate the plain language of U.S.S.G. § 3E1.1, Commentary, Application Note 2, which provides in relevant part:

2. . . . Conviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction. . . . a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, Commentary, Application Note 2.

73.) In actual fact, Mr. Sewell was not even aware that he had any other option but to either proceed to jury trial or plead guilty.

74.) If, prior to advising Mr. Sewell to proceed to a jury trial, counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead move for a bench trial on stipulated facts.

75.) The advice received from counsel regarding whether to a jury trial or bench trial on stipulate facts was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

76.) Based on the facts set forth in ¶¶ 65-75, Counsel's performance in the plea, trial, and sentencing process fell below the objective standard of reasonableness required by the Sixth Amendment.

77.) Based on the facts set forth in ¶¶ 65-75, Mr. Sewell's decision to proceed to a jury trial was not a voluntary and intelligent choice among the alternative courses of action open to him.

78.) Counsel's omissions set forth in ¶¶ 65-75 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea, trial, and sentencing process.

79.) Counsel's omissions set forth in ¶¶ 65-75 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea, trial, and sentencing process.

* * * * * * * * * *

CLAIM NUMBER FOUR

84.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-83 herein.

85.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in Grounds 1-12 of the Model Form (AO-243) of his Section 2255 motion.

11 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

(Statement of Claim ¶¶ 23-31, 63-79, 84-85)

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

Assuming for purposes of this portion of the Strickland analysis that the foregoing failures were potentially prejudicial to Mr. Sewell it cannot be said from the present record that counsel's "performance" did not fall below the objective standard of Strickland. This is because Mr. Sewell has pleaded that counsel's failures in defending Mr. Sewell were based on counsel's failures to investigate the law and facts material to him in the pretrial, plea, trial, sentencing and direct appeal process; an "innocent inadvertence"¹² but none-the-less an impermissible abdication of counsel's duty to advocate Mr. Sewell's case and cause.¹³Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00); Wiggins v. Smith, 539 U.S. 510; 123 S. Ct. 2527, 2535; 156 L. Ed. 2d 471; 2003 U.S. LEXIS 5014 (2003) (counsels' failure to investigate mitigating evidence could not be strategic "because the investigation supporting their choice was unreasonable").¹⁴

12 Smith v. United States, 871 F.Supp. 251, 255 [n. 8] (E.D. Va. 1994) (finding performance below constitutional standards for "failure to raise an objection to a clear and indisputable error in the PSR". but pointing out that "[t]he error was an innocent inadvertence, and not indicative of the entirety of counsel's representation of petitioner, which was competent and effective in all other respects."); United States v. Al King Jones, 2001 U.S. Dist. LEXIS 1740 (E.D. LA 2-9-01) (same).

13 See also United States v. Soto, 132 F.3d 56, 58 (D.C. Cir. 1997) (counsel cannot properly invoke a particular Guideline provision "merely by reciting to the court a list of mitigating facts") (quoting United States v. Foster, 988 F.2d 206, 210 (D.C. Cir. 1993) (quoting United States v. Sergio, 934 F.2d 875, 881 (7th Cir. 1991))); United States v. Harfst, 168 F.3d 398, 401 (10^th Cir. 1999)

14 See also: Anderson v. Johnson, 338 F.3d 382; 2003 U.S. App. LEXIS 13778 (5^th Cir. 2003) (counsel's performance below objective standard of Wiggins v. Smith where attorney failed to make complete investigation of case); Mays v. Gibson, 2000 U.S. App. LEXIS 8858 (10^th Cir. 2000) (citing Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00)); Jackson v. Calderon, 2000 U.S. App. LEXIS 9049 (9^th Cir. 5-8-2000) (same).

None of these allegations are rebutted, much less "conclusively" refuted by the files and records of this case. They are, in fact, not even addressed, because the failures to investigate occurred outside the courtroom.

Under these circumstances, this Court should find that Mr. Sewell has stated a claim of ineffective assistance of counsel in the pretrial, plea, trial, sentencing and direct appeal process sufficient to entitle him to, and require, an evidentiary hearing.

Mr. Sewell asks this Honorable Court to ORDER such a hearing to allow him to prove his case.

1B1.) Mr. Sewell Was Prejudiced By The Objectively Unreasonable Performance Of Counsel During The Trial Process When Counsel Failed To Advise Him, And Affirmatively Misadvised Him, As To His Constitutional Right To Testify.

In writing for the majority in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), Justice O'Connor stated the general rule that,

". . . actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice."

Id. 466 U.S. at 693, 80 L.Ed.2d at 697.

More specifically, Justice O'Connor set forth the now well known statement of the test for "prejudice" in claims of actual ineffectiveness of counsel as:

"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Id. 466 U.S. at 695, 80 L.Ed.2d at 698.

While the Court noted the government's, perhaps natural, inclination to argue that attorney error is harmless unless the defendant can show that "counsel's deficient conduct more likely than not altered the outcome of the case", ¹⁵ the Court specifically and explicitly rejected this argument by the government and has recently reaffirmed the rejection of this argument. Porter v. McCollum, ___ U.S. ___; 130 S. Ct. 447; 2009 U.S. LEXIS 8377 (11-30-09).¹⁶

15 Id. 466 U.S. at 694, 80 L.Ed.2d at 697.

16 Id. This, of course, means that the "plain error" standard also does not apply to ineffective assistance of counsel claims. Id. See United States v. Olano, 507 U.S. 725, 735 (1993) (plain error "must be real and such that it probably influenced the verdict. . . ."). Moreover, the courts have rejected any 'sufficiency of untainted evidence' test in determining "prejudice" under Strickland. See Johnson v. Scott, 68 F.3d 106, 109-10 (5^th Cir. 1995).

In rejecting any outcome determinative test such as that employed in Federal Rule of Criminal Procedure 33 analysis, the Court stated:

The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Strickland v. Washington, 466 U.S. at 694, 80 L.Ed.2d at 697; Williams v. Taylor, 120 S. Ct. 1495, 1519; 2000 U.S. LEXIS 2837, **76; 146 L. Ed. 2d 389 (4-18-00)¹⁷.

17 See also Soffar v. Dretke, 368 F.3d 441, 478-480; 2004 U.S. App. LEXIS 7793 **106-111 (5^th Cir. 2004) (same); United States v. Day, 969 F.2d 39, 45 and [n. 3] (3^rd Cir. 1992) (same) and United States v. Loughery, 908F.2d 1014, 1018-1020 (D.C. Cir. 1990) (same). While some Courts have held that Lockhart v. Fretwell, 506 U.S. 364, 373, 122 L.Ed.2d 180, 189, 113 S.Ct. 838 (1993) modified Strickland "to require a separate inquiry into fundamental fairness even when [petitioner] is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding", Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00), this construction of Lockhart v. Fretwell, was specifically addressed and rejected by the Supreme Court in Williams v. Taylor. The Supreme Court's holding in Lockhart v. Fretwell, was limited to circumstances where the a "different outcome" would be contrary to the law. Id. As Justice O'Connor carefully pointed out in Lockhart v. Fretwell,:

". . . today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland . . . The determinative question — whether there is 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' . . . remains unchanged." Id. 506 U.S. at 373 (O'Connor, concurring).

The Court further specifically rejected the application of the "actual prejudice" standard of United States v. Frady, 456 U.S. 152, 71 L.Ed.2d 816, 102 S.Ct. 1584 (1982), to claims of ineffective assistance of counsel, with the following admonishment:

"The principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. As indicated by the 'cause and prejudice' test for overcoming procedural waivers of claims of error, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. See United States v. Frady, 456 U.S. 152, 162-169, 71 L.Ed.2d 816, 102 S.Ct. 1558 (1982). An ineffectiveness claim, however, as our articulation of the standards that govern decision of such claims makes clear, is an attack on the fundamental fairness of the proceedings whose result is challenged. Since fundamental fairness is the central concern of the writ of habeas corpus, see id. at 126, no special standards ought to apply to ineffectiveness claims made in habeas proceedings."

Strickland, 66 U.S. at 697-98, 80 L.Ed.2d at 700.¹⁸

18 See Kimmelman v. Morrison, 477 U.S. at 375, 393 and [n. 1] (demonstration of "a reasonable probability" that the verdict would have been different constitutes "actual prejudice" in claims of actual ineffective assistance of counsel); Osborn v. Shillinger, 861 F.2d 612, 626 and [n. 13] (10^th Cir. 1988) (same); Smith v. United States, 871 F.Supp. 251, 255 (E.D. Va. 1994) (same).

The Court hearing an ineffectiveness claim should consider the totality of the factors which guided the decisionmaker in the challenged proceeding, then try to determine which factors were or were not "affected" by counsel's errors.

"Taking the unaffected [factors] as a given, and taking due account of the effect of the errors on the remaining [factors], a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors."

Strickland v. Washington, 466 U.S. at 696, 80 L.Ed.2d at 699.

Where through "hindsight"¹⁹ the Court can determine that, but for the errors of counsel, there is a "reasonable probability" of a different outcome, a probability sufficient to "undermine confidence" in the challenged proceedings, the defendant has affirmatively proven prejudice. Strickland, 466 U.S. at 694-95; United States v. Glover, 531 U.S. 198; 121 S. Ct. 696; 148 L. Ed. 2d 604; 2001 U.S. LEXIS 639 (2001); Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00).²⁰

19 Lewis v. Dretke, 355 F.3d 364; 2003 U.S. App. LEXIS 26156 (5^th Cir. 2003) (citing Westley v. Johnson, 83 F.3d 714, 723 (5^th Cir. 1996) (citing Lockhart v. Fretwell, 506 U.S. 364, 373, 122 L.Ed.2d 180, 189, 113 S.Ct. 838 (1993)) ("prejudice", contrary to the "performance" test of Strickland, is measured by "hindsight"); Mayo v. Henderson, 13 F.3d 528 (2^nd Cir. 1994) (same); McKee v. United States, 167 F.3d 103; 1999 U.S. App. LEXIS 1390 (2^nd Cir. 1999) (same); Prou v. United States, 199 F.3d 37; 1999 U.S. App. LEXIS 32827 (1^st Cir. 1999) (same). This means that the law applicable to the determination of "prejudice" is the law known to be correct at the time the claim of ineffective assistance of counsel is adjudicated. Id. In cases where the outcome of the prejudice inquiry would be affected by United States v. Booker, 543 U.S. 220, 125 S. Ct. 738; 160 L. Ed. 2d 621; 2005 U.S. LEXIS 628 (1-12-05), the Supreme Court's holding in Lockhart v. Fretwell requires application of the principles of Booker even if Mr. Sewell's case was final before Booker, Blakely or Apprendi.

20 In Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00), the Supreme Court explicitly rejected the theory that Lockhart v. Fretwell, 506 U.S. 364, 373, 122 L.Ed.2d 180, 189, 113 S.Ct. 838 (1993) somehow modified Strickland "to require a separate inquiry into fundamental fairness even when [petitioner] is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding". Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00). This construction of Lockhart v. Fretwell, was specifically addressed and rejected by the Supreme Court in Williams v. Taylor. The Supreme Court's holding in Lockhart v. Fretwell, was limited to circumstances where the a "different outcome" would be contrary to the law. Id As Justice O'Connor carefully pointed out in Lockhart v. Fretwell,:

". . . today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland . . . The determinative question — whether there is 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' . . . remains unchanged." Id. 506 U.S. at 373 (O'Connor, concurring).

See also: Mays v. Gibson, 2000 U.S. App. LEXIS 8858 (10^th Cir. 2000) (citing Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00)); Jackson v. Calderon, 2000 U.S. App. LEXIS 9049 (9^th Cir. 5-8-2000) (same); United States v. Horey, 333 F.3d 1185; 2003 U.S. App. LEXIS 12732 (10^th Cir. 2003) (ineffective assistance of counsel, defendant prejudiced and sentence vacated even though defendant did not receive significantly greater sentence as a result of counsel's omissions).

This rule is applicable to find "prejudice" where hindsight demonstrates that counsel's constitutionally deficient performance deprived a federal criminal defendant of consideration for a favorable adjustment or downward departure under the United States Sentencing Guidelines. United States v. Glover, 531 U.S. 198; 121 S. Ct. 696; 148 L. Ed. 2d 604; 2001 U.S. LEXIS 639 (2001) (rejecting Court of Appeals' rule that only a 'substantial' change in application of sentencing guidelines constituted "prejudice" within the meaning of Strickland).²¹

21 United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5th Cir. 2004) (prejudice in the context of a claim of ineffective assistance of counsel established by reasonable probability that, but for counsel's errors, the defendant would have received a lesser sentence, even where defendant could have received precisely the same sentence under the guidelines); United States v. Stricklin, 290 F.3d 748; 2002 U.S. App. LEXIS 9118 (5^th Cir. 5-1-02) (ineffective assistance of counsel; defendant prejudiced thereby where counsel failed to object to composition and quantity drug "mixture or substance" sused to determine relevant conduct for sentencing); United States v. Smack, 2003 U.S. App. LEXIS 21746 (3^rd Cir. 10-24-03) (same); United States v. Breckenridge, 93 F.3d 132, 136 (4^th Cir. 1996) ("The failure to object to an improper application of the sentencing guidelines may amount to ineffective assistance of counsel") (collecting cases); Auman v. United States, 67 F.3d 157, 161 (8^th Cir. 1995) (same); United States v. Acklen, 47 F.3d 739, 743 (5th Cir. 1995) (same); United States v. Headley, 923 F.2d 1079, 1083-84 (3rd Cir. 1991) (same); Spearman v. United States, 860 F.Supp. 1234, 1244-46 (E.D. Mich. 1994) (failure to provide grounds for potential downward departure under guidelines ineffective assistance); Nichols v. United States, 75 F.3d 1137 (7^th Cir. 1996) (unprofessional failure to challenge relevant conduct as violative of U.S.S.G. § 1B1.3 prejudiced defendant within the meaning of Strickland); United States v. Londono, 1998 U.S. App. LEXIS 7482 (10^th Cir. 1997) (unprofessional failure to challenge enhancement for "leadership role" prejudiced defendant within the meaning of Strickland); United States v. Ford, 918 F.2d 1343, 1350 (8^th Cir. 1990) (ineffective assistance of counsel and defendant prejudiced due to counsel's failure to object to probation officer's recommendation that no downward adjustment be made in defendant's sentence for acceptance of responsibility); United States v. De La Fuente, 8 F.3d 1333 (9^th Cir. 1993) (counsel's performance below objective standard and defendant prejudiced where counsel failed to move for or make proper argument for departure); United States v. Soto, 132 F.3d 56, 58 (D.C. Cir. 1997) (failure to request a downward departure at sentencing may constitute ineffective assistance of counsel). It should be noted that an "overlap" between the correct and an incorrectly applied guideline sentencing range "renders a sentencing error unreviewable only if the district court, at the time of sentencing, states unequivocally that it would impose the same sentence with or without the challenged calculation." United States v. Alaniz, 351 F.3d 365; 2003 U.S. App. LEXIS 24729 (8^th Cir. 2003); United States v. Rodriguez-Razo, 962 F.2d 1418, 1423-24 (9^th Cir. 1992) (where Guidelines ranges overlap, record must show that sentence would be the same at either offense level to avoid remand if enhancement was erroneously applied); United States v. Brown, 316 F.3d 1151; 2003 U.S. App. LEXIS 962 (10^th Cir. 2003) ("Where the sentencing error caused an increase in the applicable adjustment level, 'the fact that guideline ranges overlap does not make a plain error harmless.'"); United States v. Osuna, 189 F.3d 1289, 1294 (10^th Cir. 1999) (on plain error review, reversing when the district court erroneously applied a guidelines range of 51-63 months rather than the correct (and overlapping) range of 46-57 months); United States v. Knight, 266 F.3d 203, 208 (3^rd Cir. 2001) (noting that "the application of an incorrect guideline range resulting in a sentence that is also within the correct range affects substantial rights") (collecting cases) (quotations omitted); United States v. Pielago, 135 F.3d 703, 714, n. 1 (11^th Cir. 1998) (Kravitch, J., concurring in part and dissenting in part) (prejudice established when actual sentence of 140 months based on erroneous use of offense level with range of 135-168 months was within the range of correct sentence range of 121-151 months "because the district court did not clearly state that it would have imposed" the same sentence were the correct sentencing range applied); United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5th Cir. 2004) (prejudice in the context of a claim of ineffective assistance of counsel established by reasonable probability that, but for counsel's errors, the defendant would have received a lesser sentence, even where defendant could have received precisely the same sentence under the guidelines).

Since 1-12-05, when the Guidelines were determined to be "advisory" in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738; 160 L. Ed. 2d 621; 2005 U.S. LEXIS 628 (1-12-05), the Strickland test, and case law supporting ineffective assistance of counsel at sentencing under the Guidelines, remains valid for determining "prejudice" for counsel's acts and omissions with respect to sentencing. This is because there can still be a "reasonable probability" that the Court would have followed the Guidelines and/or case law construing the Guidelines and made a downward adjustment under advisory guidelines even though the Court wasn't, and isn't, "required" to grant the downward adjustment and even though the Court had discretion to impose some other sentence.²²

22 Ballard v. United States, 400 F.3d 404; 2005 U.S. App. LEXIS 4002 (6^th Cir. 2005); United States v. Hayes, 2005 U.S. Dist. LEXIS 18309 (ED LA 8-24-05); United States v. White, 371 F. Supp. 2d 378; 2005 U.S. Dist. LEXIS 10355 (WD NY 2005); United States v. Booth, 2005 U.S. App. LEXIS 28896 (3^rd Cir. 12-29-05); Burley v. Cabana, 818 F.2d 414 (5^th Cir. 1987) (trial counsel was ineffective for failing to inform judge of available sentencing alternatives for youth because there was a reasonable probability that the trial judge would not have imposed life had it known of the alternatives, even though the court could still have imposed the same life sentence); United States v. Castro, 26 F.3d 557; 1994 U.S. App. LEXIS 16934 (5^th Cir. 1994) (ineffective assistance of counsel for deprivation of opportunity to have a sentencing court exercise its discretion in a defendant's favor); Shushansky v. United States, 1994 U.S. Dist. LEXIS 18589 (ED NY 1994) (same); United States v. Donn, 661 F.2d 820; 1981 U.S. App. LEXIS 15876 (9^th Cir. 1981) (ineffective assistance of counsel for failure to challenge prejudicial information in Presentence Report, even though the court had full discretion under the 'old law' to impose the same sentence irregardless of the reliability of the information).

Mr. Sewell has made specific, sworn, factual allegations, in the Statement of Claim of his Section 2255 motion, that he was prejudiced by the objectively unreasonable performance of counsel in the trial process when counsel failed to advise him that he had both the right to testify, and the ultimate authority to decide whether or not to take the stand. These allegations include the following:

10.) During the trial process in this case, Mr. Sewell was not aware that he had the ultimate authority to decide whether to take the stand and testify; that is that only Mr. Sewell could waive his constitutional right to testify in the trial process.

11.) During the trial process in this case, Mr. Sewell was not aware that he had a constitutional right to testify in the trial process even if counsel advised and believed that such testimony would be inadvisable from counsel's viewpoint.

12.) Mr. Sewell did not testify at trial.

* * * * * * * * * *

CLAIM NUMBER ONE

23.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

24.) Mr. Sewell's conviction and/or sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel as hereinafter more fully appears.

25.) Counsel could have but did not advise Mr. Sewell that he had a constitutional right to testify in the trial process even if counsel advised and believed that such testimony would be inadvisable from counsel's viewpoint.

26.) Counsel's omissions set forth in ¶ 25 were based upon an incomplete investigation of the law relevant to Mr. Sewell's trial process.

27.) Counsel could have but did not investigate case law such as DeLuca v. Lord, 858 F.Supp. 1330, 1353-1356 (S.D.N.Y. 1994) and Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-2709, 97 L.Ed.2d 37 (1987) and authorities therein.

28.) The cases set forth in the foregoing paragraph stand for the proposition that

. . . the right to testify 'is one of the rights that are essential to due process of law in a fair adversary process and that it is 'even more fundamental to a person defense than the right of self representation.

DeLuca v. Lord, 858 F.Supp. at 1354 (quoting Rock v. Arkansas, 483 U.S. at 51-52, 107 S.Ct. at 2709).

29.) The cases set forth in the foregoing paragraphs also stand for the proposition that defense counsel is "responsible for informing his client that [he] has both the right to testify, and the ultimate authority to decide whether or not to take the stand". DeLuca v. Lord, 858 F.Supp. at 1359-60.

30.) Counsel's omissions set forth in ¶¶ 25-29 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell in the trial process.

31.) Counsel's omissions set forth in ¶¶ 25-29 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause in the trial process.

32.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set. forth in ¶¶ 25-30 because, absent said omissions, there is a reasonable probability that the outcome of his trial process would have been different in the following ways:

33.) But for counsel's unprofessional omissions, there is a reasonable probability that the jury would have found Mr. Sewell not guilty.

34.) Moreover, Mr. Sewell's testimony would have been material to the trial process as a matter of law, because:

The testimony of a criminal defendant at his own trial is unique and inherently significant. 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself . . . the most important witness for the defense is the defendant himself."

DeLuca v. Lord, 858 F.Supp. 1330, 1361 (S.D.N.Y. 1994) (quoting Nichols v. Butler, 953 F.2d 1550, 1553 (11^th Cir. 1992) (quoting Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961)) and quoting Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709)

35.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set forth in ¶¶ 25-30 because said omissions deprived him of his substantive right to take the witness stand and testify; a substantive right to which the Constitution entitled him.

36.) Mr. Sewell was prejudiced from the unprofessional omissions of counsel, set forth in ¶¶ 25-30, because said omissions undermine confidence in the reliability of his trial process.

(Statement of Claim ¶¶ 10-12, 23-36)

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

It is well settled that a criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2707-2709, 97 L.Ed.2d 37 (1987). The right is a fundamental constitutional right that is personal to the defendant and cannot be waived by counsel.²³ Moreover, "a defendant's waiver of the right to testify must be knowing, informed, and intelligent. This implies an understanding of the consequences of the decision." United States v. Guarino, 293 F.3d 19; 2002 U.S. App. LEXIS 11885 (1^st Cir. 2002) (citing United States v. Manjarrez, 258 F.3d 618, 623-24 (7^th Cir. 2001) and Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2707-2709, 97 L.Ed.2d 37 (1987))

23 See, e.g., Foster v. Delo, 11 F.3d 1451, 1457 (8^th Cir.), affirmed, 39 F.3d 873 (8^th Cir. 1994) ( en banc), cert. denied, 131 L.Ed.2d 578, 115 S.Ct. 1719 (1995); United States v. Teague, 953 F.2d 1525, 1532 (11^th Cir.) ( en banc), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992); United States v. McMeans, 927 F.2d 162, 163 (4^th Cir. 1991); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7^th Cir.), cert. denied, 498 U.S. 831, 111 S.Ct. 93 (1990); Wright v. Estelle, 572 F.2d 1071 (5^th Cir.) ( en banc), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978); Deluca v. Lord, 858 F.Supp. 1330, 1354 (S.D.N.Y. 1994), affirmed on other grounds, 77 F.3d 578 (2d Cir. 1996).

As the Supreme Court carefully pointed out in Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) that

"the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal."

Id.

This is not a 'novel' legal principle and has been applied by the Courts regularly to vacate convictions where the defendant was either not advised of his right or was improperly advised as to the right.²⁴ As the Court stated in Nichols v. Butler:

If defense counsel never informed the defendant of the right to testify, and that the ultimate decision belongs to the defendant, counsel would have neglected the vital professional responsibility of ensuring that the defendant's right to testify is protected and that any waiver of that right is knowing and voluntary.

United States v. Teague, 953 F.2d 1525, 1534 (11^th Cir.), cert. denied, 121 L.Ed. 2d 82, 113 S.Ct. 127 (1992). Teague held that in such circumstances, counsel has not provided "reasonably effective assistance." Id.

24 99-cv-7660 v. 99-cv-7660, 329 Fed. Appx. 311; 2009 U.S. App. LEXIS 10421 (2^nd Cir. 5-13-09) (remanding for evidentiary hearing or further development of the record on claim of ineffective assistance of counsel in failing to fully advise defendant of his right to testify); Geer v. United States, 2009 U.S. App. LEXIS 26424 (11^th Cir. 2009) (same); Gallego v. United States, 174 F.3d 1196; 1999 U.S. App. LEXIS 8611 (11^th Cir. 1999) (vacating denial of motion pursuant to 28 U.S.C. § 2255 on grounds that District Court erred in credibility finding between defendant and counsel as to whether defendant was advised of his right to testify and that the ultimate decision whether to testify belonged to defendant); Campos v. United States, 930 F.Supp. 787, 1996 U.S. Dist. LEXIS 8339 (E.D.N.Y. 1996) (vacating conviction under 28 U.S.C. § 2255 where defendant was denied effective assistance of counsel due to counsel's failure to properly advise him of his right to testify and that the ultimate decision whether to testify belonged to defendant); Ward v. Sternes, 209 F. Supp. 2d 950; 2002 U.S. Dist. LEXIS 11962 (CD IL 2002) (same — insufficient waiver of right shown); Canaan v. Davis, 2003 U.S. Dist. LEXIS 479 (SD IN 1-10-03) (vacating sentence due to denial of Sixth Amendment constitutional right to testify); Ouber v. Guarino, 293 F.3d 19; 2002 U.S. App. LEXIS 11885 (1^st Cir. 2002) (affirming habeas corpus relief where defendant was denied effective assistance of counsel through counsel's failure advise call her as a witness); United States v. Edwin Rodriguez, 2001 U.S. Dist. LEXIS 3545 (ED PA 3-28-01) (ordering evidentiary hearing on Section 2255 claim of ineffective assistance of counsel due to counsel's failure to allow him to testify); Martinez v. Ylst, 951 F.2d 1153 (9^th Cir. 1991) (affirming relief under 28 U.S.C. § 2254 where petitioner was denied his constitutional right to testify); United States v. Stevens, 1997 U.S. App. LEXIS 32264 (4^th Cir. 1997) (remanding for second time for ruling on merits of petitioner's motion pursuant to 28 U.S.C. § 2255 pleading denial of his Sixth Amendment constitutional right to testify); United States v. Martinez, 1999 U.S. App. LEXIS 15951 (5^th Cir. 7-15-99) (vacating District Court denial of motion pursuant to 28 U.S.C. § 2255 pleading denial of petitioner's Sixth Amendment constitutional right to testify); United States v. Lore, 26 F.Supp. 2d 729, 1998 U.S. Dist. LEXIS 20799 (D.N.J. 1998) (granting relief in motion pursuant to 28 U.S.C. § 2255 where defendant pleaded denial of his Sixth Amendment constitutional right to testify); United States v. Moskovits, 844 F.Supp. 202; 1993 U.S. Dist. LEXIS 8532 (E.D. Pa. 1993) (granting relief in motion pursuant to 28 U.S.C. § 2255 where defendant pleaded denial of his Sixth Amendment constitutional right to testify); United States v. Scott, 909 F.2d 488; 1990 U.S. App. LEXIS 14361 (11^th Cir. 1990) (vacating conviction where attorney threatened to withdraw from case if defendant testified and defendant was forced to choose between proceeding without counsel or foregoing his constitutional right to testify).

Based on the foregoing facts and law, Mr. Sewell has affirmatively pleaded "prejudice" in his case within the meaning of Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984)²⁵

25 99-cv-7660 v. 99-cv-7660, 329 Fed. Appx. 311; 2009 U.S. App. LEXIS 10421 (2^nd Cir. 5-13-09) (remanding for evidentiary hearing or further development of the record on claim of ineffective assistance of counsel in failing to fully advise defendant of his right to testify); Geer v. United States, 2009 U.S. App. LEXIS 26424 (11^th Cir. 2009) (same); Gallego v. United States, 174 F.3d 1196; 1999 U.S. App. LEXIS 8611 (11^th Cir. 1999) (vacating denial of motion pursuant to 28 U.S.C. § 2255 on grounds that District Court erred in credibility finding between defendant and counsel as to whether defendant was advised of his right to testify and that the ultimate decision whether to testify belonged to defendant); Campos v. United States, 930 F.Supp. 787, 1996 U.S. Dist. LEXIS 8339 (E.D.N.Y. 1996) (vacating conviction under 28 U.S.C. § 2255 where defendant was denied effective assistance of counsel due to counsel's failure to properly advise him of his right to testify and that the ultimate decision whether to testify belonged to defendant); Ward v. Sternes, 209 F. Supp. 2d 950; 2002 U.S. Dist. LEXIS 11962 (CD IL 2002) (same — insufficient waiver of right shown); Canaan v. Davis, 2003 U.S. Dist. LEXIS 479 (SD IN 1-10-03) (vacating sentence due to denial of Sixth Amendment constitutional right to testify); Ouber v. Guarino, 293 F.3d 19; 2002 U.S. App. LEXIS 11885 (1^st Cir. 2002) (affirming habeas corpus relief where defendant was denied effective assistance of counsel through counsel's failure advise call her as a witness); United States v. Edwin Rodriguez, 2001 U.S. Dist. LEXIS 3545 (ED PA 3-28-01) (ordering evidentiary hearing on Section 2255 claim of ineffective assistance of counsel due to counsel's failure to allow him to testify); Martinez v. Ylst, 951 F.2d 1153 (9^th Cir. 1991) (affirming relief under 28 U.S.C. § 2254 where petitioner was denied his constitutional right to testify); United States v. Stevens, 1997 U.S. App. LEXIS 32264 (4^th Cir. 1997) (remanding for second time for ruling on merits of petitioner's motion pursuant to 28 U.S.C. § 2255 pleading denial of his Sixth Amendment constitutional right to testify); United States v. Martinez, 1999 U.S. App. LEXIS 15951 (5^th Cir. 7-15-99) (vacating District Court denial of motion pursuant to 28 U.S.C. § 2255 pleading denial of petitioner's Sixth Amendment constitutional right to testify); United States v. Lore, 26 F.Supp. 2d 729, 1998 U.S. Dist. LEXIS 20799 (D.N.J. 1998) (granting relief in motion pursuant to 28 U.S.C. § 2255 where defendant pleaded denial of his Sixth Amendment constitutional right to testify); United States v. Moskovits, 844 F.Supp. 202; 1993 U.S. Dist. LEXIS 8532 (E.D. Pa. 1993) (granting relief in motion pursuant to 28 U.S.C. § 2255 where defendant pleaded denial of his Sixth Amendment constitutional right to testify); United States v. Scott, 909 F.2d 488; 1990 U.S. App. LEXIS 14361 (11^th Cir. 1990) (vacating conviction where attorney threatened to withdraw from case if defendant testified and defendant was forced to choose between proceeding without counsel or foregoing his constitutional right to testify).

As the Supreme Court pointed out over 30 years ago, "the most important witness for the defense is the defendant himself". Green, 365 U.S. at 304. The testimony of Mr. Sewell would have been material to his trial process, as a matter of law. Id. See also United States v. Martinez, 1999 U.S. App. LEXIS 15951 (11^th Cir. 7-15-99); DeLuca v. Lord, 858 F.Supp. 1330, 1353-1356 (S.D.N.Y. 1994) and Campos v. United States, 930 F.Supp. 787, 793 (E.D. N.Y. 1996) (same); Blackburn v. Foltz, 828 F.2d 1177 (6^th Cir. 1987) (same).

Applying the foregoing to the facts of Mr. Sewell's case, there is a reasonable probability the outcome of his trial process would have been different; a probability sufficient to undermine confidence in Mr. Sewell's trial process.

Based on all of the foregoing, Mr. Sewell respectfully asks this Court to find that he has stated a prima facie claim of ineffective assistance of counsel in his trial process sufficient to ORDER that he be granted an evidentiary hearing where he can prove his case.

1B2.) Mr. Sewell Was Prejudiced By The Objectively Unreasonable Performance Of Counsel During The Plea, Trial, And Sentencing Process When Counsel Failed To Advise Him To Proceed To A Bench Trial On Stipulated Facts

Mr. Sewell has made specific, sworn, factual allegations, in the Statement of Claim of his Section 2255 motion, that he was prejudiced by the objectively unreasonable performance of counsel during the plea, trial, and sentencing process when counsel failed to advise him to proceed to a bench trial on stipulated facts. These allegations include the following:

CLAIM NUMBER THREE

63.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

64.) Mr. Sewell's sentence is violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea, trial, and sentencing process as hereinafter more fully appears.

65.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to proceed to a jury trial or, instead, to move for a bench trial on stipulated facts.

66.) Counsel could have but did not fully advise Mr. Sewell as to the requirements for obtaining a reduction in his sentence for "acceptance of responsibility".

67.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.²⁶

68.) Counsel could have but did not fully advise Mr. Sewell that he could obtain District Court and appellate review of the the sufficiency of the evidence, while still obtaining a reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility, by proceeding to a bench trial on stipulated facts, while preserving his legal issue for appellate review.

69.) Counsel could have but did not fully advise Mr. Sewell that, if he proceeded to a bench trial on stipulated facts, he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors.

70.) Counsel's acts and omissions set forth in ¶¶ 65-69 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to proceed to a bench or jury trial.

71.) Counsel could have but did not investigate case law such as United States v. Villasenor, 114 F.3d 970; 1997 U.S. App. LEXIS 13605 (9^th Cir. 1997) (affirming 2 levels reduction in sentence for acceptance of responsibility after bench trial on stipulated facts); United States v. Rogers, 129 F.3d 76; 1997 U.S. App. LEXIS 29784 (2^nd Cir. 1997) (same); United States v. Ryan, 964 F. Supp. 526; 1997 U.S. Dist. LEXIS 6987 (D MA 1997) (same).

72.) Counsel could have but did not investigate the plain language of U.S.S.G. § 3E1.1, Commentary, Application Note 2, which provides in relevant part:

2. . . . Conviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction. . . . a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, Commentary, Application Note 2.

73.) In actual fact, Mr. Sewell was not even aware that he had any other option but to either proceed to jury trial or plead guilty.

74.) If, prior to advising Mr. Sewell to proceed to a jury trial, counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead move for a bench trial on stipulated facts.

75.) The advice received from counsel regarding whether to a jury trial or bench trial on stipulate facts was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

76.) Based on the facts set forth in ¶¶ 65-75, Counsel's performance in the plea, trial, and sentencing process fell below the objective standard of reasonableness required by the Sixth Amendment.

77.) Based on the facts set forth in ¶¶ 65-75, Mr. Sewell's decision to proceed to a jury trial was not a voluntary and intelligent choice among the alternative courses of action open to him.

78.) Counsel's omissions set forth in ¶¶ 65-75 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea, trial, and sentencing process.

79.) Counsel's omissions set forth in ¶¶ 65-75 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea, trial, and sentencing process.

80.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because a stipulation could have been negotiated with the government whereby Mr. Sewell would have agreed that the testimony and evidence would be as actually presented to the jury at the actual trial.

81.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, Mr. Sewell would have moved for a bench trial on stipulated facts and would have proceeded to a bench trial on stipulated facts instead of a jury trial on contested facts.

82.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, had he proceeded to a bench trial on stipulated facts, he could have retained eligibility for a reduction in his sentence under U.S.S.G. § 3E1.1 while, at the same time, obtaining judicial determination as to the sufficiency of evidence and retaining his ability to challenge his relevant conduct, his criminal history, and other sentencing factors such as whether he was entitled to a downward departure or adjustments for mitigating factors.

83.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, Mr. Sewell would have received a reduction in his sentence under U.S.S.G. § 3E1.1 for acceptance of responsibility.

26 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

(Statement of Claim ¶¶ 63-83)

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

Where a criminal defendant proceeds to a bench trial on stipulated facts, he is not precluded from obtaining a reduction in his sentence under U.S.S.G. § 3E1.1 for acceptance of responsibility. United States v. Villasenor, 114 F.3d 970; 1997 U.S. App. LEXIS 13605 (9^th Cir. 1997) (affirming a 2 levels reduction in sentence for acceptance of responsibility after bench trial on stipulated facts); United States v. Rogers, 129 F.3d 76; 1997 U.S. App. LEXIS 29784 (2^nd Cir. 1997) (same); United States v. Ryan, 964 F. Supp. 526; 1997 U.S. Dist. LEXIS 6987 (D MA 1997) (same).

While Mr. Sewell did challenge his factual guilt at the jury trial, the real reason Mr. Sewell proceeded to jury trial was because he wanted District Court and appellate review of the sufficiency of the evidence. Since counsel was unable to obtain any kind of a favorable deal or plea agreement, counsel could have and should have advised Mr. Sewell that he could proceed to a "bench trial" on "stipulated facts", with the sole purpose of obtaining District Court and appellate review of the sufficiency of the evidence. This would have enabled Mr. Sewell to both preserve a challenge to the sufficiency of the evidence and, at the same time, to still retain eligibility for a reduction in his sentence under U.S.S.G. § 3E1.1 for "acceptance of responsibility".

Mr. Sewell has specifically pleaded that he would have stipulated to the testimony and evidence as presented at trial. It's hard to imagine how or why the government could have or would have rejected such an offer for stipulation.

Since Mr. Sewell was never advised of these options prior to his decision to proceed to a jury trial, counsel was clearly ineffective and Mr. Sewell was prejudiced by the loss of the opportunity to obtain the reduction in his sentence due to ineffective assistance of counsel. United States v. Turner, 2007 U.S. Dist. LEXIS 14874 **18-21 (ND TX 3-2-07) (Granting evidentiary hearing on claim of ineffective assistance of counsel due to counsel's failure to advise defendant of option of proceeding to bench trial on stipulated facts); United States v. Robinson, 2008 U.S. Dist. LEXIS 89889 **4-6 (WD LA 9-16-08) (remanding to Magistrate Judge to consider, inter alia, claim of ineffective assistance of counsel due to counsel's failure to fully advise defendant as to his option to proceed to bench trial on stipulated facts); United States v. Blaylock, 20 F.3d 1458, 1467 [n. 5] (9^th Cir. 1994) (ineffective assistance of counsel where defendant denied reduction for acceptance of responsibility as a result of proceeding to jury trial); United States v. Estes, 1998 U.S. App. LEXIS 31866 (9^th Cir. 12-17-98) (same); United States v. Garrett, 90 F.3d 210; 1996 U.S. App. LEXIS 17621 (7^th Cir. 1996) (ineffective assistance of counsel when defendant denied reduction for acceptance of responsibility due to insufficient sentencing advice).

Based on the foregoing facts and law, Mr. Sewell has affirmatively pleaded "prejudice" in his case within the meaning of Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984) and United States v. Glover, 531 U.S. 198; 121 S. Ct. 696; 148 L. Ed. 2d 604; 2001 U.S. LEXIS 639 (2001). United States v. Turner, 2007 U.S. Dist. LEXIS 14874 **18-21 (ND TX 3-2-07) (Granting evidentiary hearing on claim of ineffective assistance of counsel due to counsel's failure to advise defendant of option of proceeding to bench trial on stipulated facts); United States v. Robinson, 2008 U.S. Dist. LEXIS 89889 **4-6 (WD LA 9-16-08) (remanding to Magistrate Judge to consider, inter alia, claim of ineffective assistance of counsel due to counsel's failure to fully advise defendant as to his option to proceed to bench trial on stipulated facts).

Based on all of the foregoing, Mr. Sewell respectfully asks this Honorable Court to ORDER an evidentiary hearing in which he can be allowed to prove his case.

1B3.) Mr. Sewell Was Prejudiced By The Cumulative Impact Of Multiple Deficiencies Or Errors By Counsel During The Pretrial, Plea, Trial, Sentencing And Direct Appeal Process

Even where no single error by counsel is sufficient to vacate the conviction and/or sentence of the defendant, prejudice may result from the cumulative impact of multiple deficiencies or errors by counsel during the trial process. Mathews v. Abramajtys, 2003 U.S. App. LEXIS 2187; 2003 FED App. 0045P (6^th Cir. 2003) (affirming in part Mathews v. Abramajtys, 2000 U.S. Dist. LEXIS 4635 (E.D. Mich. 4-11-00)).²⁷

27 See also United States v. Russel, 2002 U.S. App. LEXIS 9538 (4^th Cir. 5-20-02) (vacating denial of motion pursuant to 28 U.S.C. § 2255 and remanding on claim of cumulative error of counsel); Killian v. Poole, 282 F.3d 1204; 2002 U.S. App. LEXIS 3887 (9^th Cir. 2001); Johnson v. Newland, 1999 U.S. Dist. LEXIS 427 (ND Cal. 1-15-99); United States v. Van Dyke, 14 F.3d 415, 417-424 (8^th Cir. 1994); Harris By and Through Ramseyer v. Blodgett, 853 F.Supp. 1239 (W.D. Wash. 1994); Harris v. Wood, 64 F.3d 1432 (9^th Cir. 1995); Mak v. Blodgett, 970 F.2d 614; 1992 U.S. App. LEXIS 15964 (9^th Cir. 1992); United States v. Ramsey, 323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 (D DC 2004) (granting new trial due to multiple deficiencies of counsel).

In Mr. Sewell's case, as set forth in the foregoing arguments and in the Statement of Claim and the Model Form of his Section 2255 motion, counsel's performance was below the objective standard required by the Constitution in multiple areas. While Mr. Sewell respectfully submits that each of the multiple professionally unreasonable acts and omissions of counsel prejudiced him within the meaning of Strickland, he was clearly prejudiced by the cumulative impact of the multiple deficiencies and errors.

Based on the foregoing facts and law, Mr. Sewell has affirmatively pleaded "prejudice" in his case within the meaning of Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984) and United States v. Glover, 531 U.S. 198; 121 S. Ct. 696; 148 L. Ed. 2d 604; 2001 U.S. LEXIS 639 (2001) and Williams v. Taylor, 120 S. Ct. 1495, 1512-16; 2000 U.S. LEXIS 2837, **53-64; 146 L. Ed. 2d 389 (4-18-00), due to the "multiplicity of errors" which denied Mr. Sewell his Sixth Amendment constitutional right to effective assistance of counsel during the pretrial, plea, trial, sentencing and direct appeal process. Id.

Based on all of the foregoing, Mr. Sewell respectfully asks this Honorable Court to ORDER an evidentiary hearing in which he can be allowed to prove his case.

2.) MR. SEWELL'S PLEA OF NOT GUILTY, CONVICTION AND SENTENCE ARE VIOLATIVE OF THE SIXTH AMENDMENT.

The two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).²⁸ The Strickland test has, however, been modified by Hill v. Lockhart to evaluate challenges to guilty pleas based on ineffective assistance of counsel in the plea process. Id. 474 U.S. at 56-60, 88 L.Ed.2d at 208-211.²⁹

28 Accord: Hill v. Lockhart, 877 F.2d 698, 702-703 (8th Cir.), affirmed, 894 F.2d 1009, 1010 (1990) (en banc); United States v. Streater, 70 F.3d 1314 (D.C. 1995); Sparks v. Sowders, 852 F.2d 882, 884 (6^th Cir. 1988); Iaea v. Sunn, 800 F.2d 861, 864 (9^th Cir. 1986); Risher v. United States, 992 F.2d 982, 984 (9^th Cir. 1993).

29 See also United States v. Streater, 70 F.3d 1314 (D.C. 1995); Betancourt v. Willis, 814 F.2d 1546, 1548-49 (11^th Cir. 1987) (same); United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (same); Turner v. State of Tennessee, 664 F.Supp. 1113, 1117-22 (M.D. Tenn. 1986), affirmed 858 F.2d 1201, 1206 and [n. 11] (6^th Cir.), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), remanded, 883 F.2d 38 (6^th Cir.), reinstated as modified, 726 F.Supp. 1113, affirmed as modified, 940 F.2d 1000 (6^th Cir.), cert. denied, ___ U.S. 112 S.Ct. 915, 116 L.Ed.2d 815 (1992) (same); Ostrander v. Green, 46 F.3d 347 (4^th Cir. 1995) ("There is a significant difference between the tests. Under Strickland, the defendant shows prejudice if, but for counsel's poor performance, there is a reasonable probability that the outcome of the entire proceeding would have been different. Under Hill, the defendant must show merely that there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial."); Jiles v. United States, 2003 U.S. App. LEXIS 17091 (7^th Cir. 8-18-03) (proof of "factual innocence" not relevant to question whether defendant received effective assistance of counsel in the plea process)

As the Courts have noted, "the decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in a criminal case . . . [and] counsel may and must give the client the benefit of counsel's professional advice on this crucial decision." United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998).³⁰

30 See also United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5^th Cir. 2004) (same); United States v. Turner, 2007 U.S. Dist. LEXIS 37844 (ND TX 5-23-07) (same); Kates v. United States, 930 F.Supp. 189 (E.D. Pa. 1996) (same)

2A.) Mr. Sewell's Plea Was Not A Voluntary And Intelligent Choice Among The Alternative Courses Of Action Open To Him Because The Performance Of His Counsel Fell Below An Objective Standard Of Reasonableness During The Plea Process.

In the context of pleas of guilty, the first half of the Strickland/ Hill test determines whether the plea was a voluntary and intelligent choice among the alternative courses of action open to the defendant. Hill, 474 U.S. at 56-59.³¹ In applying this test, the court should ask whether counsel fully informed himself and the defendant as to all facts and law material to the plea. Was the defendant fully advised as to the "risk factors" in proceeding to trial?³² If the pleadings and evidence establish a negative answer to this question, the plea was not a voluntary and intelligent choice among the alternative courses of action open to the defendant, and counsel's performance falls below the objective standard of Strickland/Hill.³³

31 See also United States v. Ali, 186 F.3d 1; 1999 U.S. App. LEXIS 17734 (1^st Cir. 1999) (same); Finch v. Vaughn, 67 F.3d 909, 916 (11^th Cir. 1995) (same); Loughery, 908 F.2d at 1018 (same); Hill v. Lockhart, 877 F.2d at 702-703 (same); United States v. Nahodil, 36 F.3d 323, 326-27 (3^rd Cir. 1994) (same); Lewandowski v. Makel, 949 F.2d 884, 887 (6^th Cir. 1991) (same); United States v. Guerra, 1996 U.S. App. LEXIS 24982 (5^th Cir. 9-25-96) (same); Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999) ("Rejection of a plea offer must be voluntary in that the defendant must understand the terms of the proffered plea bargain and the consequences of rejecting it.") (collecting authorities).

32 Pitcher v. United States, 371 F. Supp. 2d 246; 2005 U.S. Dist. LEXIS 10314 (SD NY 2005) (attorney's comment that defendant had "winnable case" prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel was ineffective in failing to advise defendant and his family that "it was almost impossible for a 'buy and bust' defendant to obtain an acquittal"); United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 **6, 13 (5^th Cir. 2004) ("When the defendant lacks a full understanding of the risks of going to trial, he is unable to make an intelligent choice of whether to accept a plea or take his chances in court"); United States v. Holguin-Herrera, 412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 2005) ("A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial."); United States v. Ramsey, 323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 **43-44 (D DC 2004) (plea of not guilty involuntary where attorney failed to fully inform defendant of risk factors in proceeding to trial instead of pleading guilty) (collecting cases); United States v. Stout, 2006 U.S. App. LEXIS 5630 (10^th Cir. 3-6-06) (misinformation as to admissibility of certain incriminatory evidence rendered decision to proceed to trial involuntary).

33 See United States v. Herrera, 412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 6-10-05) (ineffective assistance of counsel in plea process where counsel estimated sentence 27 months less than actual sentence received); United States v. Reyes, 2002 U.S. App. LEXIS 11411 (5^th Cir. 6-12-02) (ineffective assistance of counsel due to counsel's failure to object to the court's failure to explain guidelines during plea colloquy); United States v. Gray, 63 F.3d 57 (1^st Cir. 1995) (Plea involuntary where defendant did not understand applicability of mandatory minimum); United States v. McCoy, 215 F.3d 102 (D.C. Cir. 2000) (But for counsel's deficient performance, defendant would not have pled guilty); United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (counsel must not only "inform himself fully on the facts and law", but must also "thoroughly advise the client 'concerning all aspects of the case', and 'keep the client informed of developments in the case.'"); Finch v. Vaughn, 67 F.3d at 916 ("For a guilty plea to 'represent an informed choice' so that it is constitutionally 'knowing and voluntary,' the 'counsel must be familiar with the facts and law in order to advise the defendant . . . The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis . . ."); Hill v. Lockhart, 877 F.2d at 703 (same) Lewandowski v. Makel, 949 F.2d 884, 887 (6^th Cir. 1991) (same); Iaea v. Sunn, 800 F.2d at 865 (same); Risher, 992 F.2d at 983-84 (same); United States v. Giardino, 767 F.2d 30, 32 (1^st Cir. 1986) (failure to inform defendant in plea process of factual defense below objective standard of Strickland/Hill); United States v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997) (Counsel was ineffective for giving incorrect sentencing information in contemplation of plea); United States v. Ali, 186 F.3d 1; 1999 U.S. App. LEXIS 17734 (1^st Cir. 1999) (plea involuntary where counsel improperly advised defendant he would be eligible for "Safety Valve" reduction if he pleaded guilty); United States v. Davis, 239 F.3d 283 (2^nd Cir. 2001) (Counsel was ineffective by threatening to withhold services to encourage plea); Magana v. Hofbauer, 263 F.3d 542 (6^th Cir. 2001) (Counsel misinformed defendant about effect of plea agreement); United States v. Stephen, 2002 U.S. App. LEXIS 21158 (4^th Cir. 10-10-02) (plea involuntary if counsel affirmatively misadvised defendant he would receive a lesser sentence through plea of guilty).

This test is also applicable in cases where the defendant is alleging that counsel's incompetence caused him to proceed to trial instead of pleading guilty or nolo contendere. The only difference here is that the defendant's decision to plead not guilty is not a voluntary and intelligent choice among the alternative courses of action available to the defendant and is therefore violative of the Sixth Amendment.³⁴

34 See United States v. Jolley, 2007 U.S. App. LEXIS 25334 (5^th Cir. 2007); United States v. Booth, 432 F.3d 542; 2005 U.S. App. LEXIS 28896 (3^rd Cir. 2005) (ineffective assistance of counsel in plea process where counsel failed to advise defendant he could plead guilty and obtain downward adjustment in sentence without plea agreement with government); United States v. Turner, 2007 U.S. Dist. LEXIS 37844 (ND TX 5-23-07) (same); United States v. Stout, 2006 U.S. App. LEXIS 5630 (10^th Cir. 3-6-06) (misinformation as to admissibility of certain incriminatory evidence rendered decision to proceed to trial involuntary); United States v. White, 371 F. Supp. 2d 378; 2005 U.S. Dist. LEXIS 10355 (WD NY 2005) (failure to inform defendant of actual sentence exposure if he proceeded to trial, rendered counsel's performance below standard of Strickland and prevented plea of not guilty from being constitutionally intelligent decision); Kates v. United States, 930 F.Supp. 189, 192 (E.D. Pa. 1996) (same); United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5th Cir. 2004) (same); United States v. Gordon, 156 F.3d 376 (2^nd Cir. 1998) (same); Mask v. McGinnis, 28 F. Supp. 2d 122; 1998 U.S. Dist. LEXIS 17497 (S.D.N.Y. 1998) (same); Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D. Cal. 1993) (same); Carmichael v. United States, 1998 U.S. Dist. LEXIS 20313 (D. Conn. 12-16-98) (same — resentencing defendant in claim of ineffective assistance of counsel in the plea process where defendant pleaded not guilty and counsel's advice during the plea process was limited to providing him with a copy of the federal sentencing guidelines); Turner v. State of Tennessee, 664 F.Supp. at 1120 (same) (collecting cases); United States v. Day, 969 F.2d 39, 43 (3^rd Cir. 1992) (remanding for evidentiary hearing on claim of ineffective assistance of counsel in the plea process where defendant proceeded to trial without sufficient advice as to sentencing options if he pleaded guilty instead); United States v. Blaylock, 20 F.3d 1458, 1465-66 (9^th Cir. 1994) (counsel's failure to advise defendant as to facts material to plea decision prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment); Pitcher v. United States, 371 F. Supp. 2d 246; 2005 U.S. Dist. LEXIS 10314 (SD NY 2005) (attorney's comment that defendant had "winnable case" prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment); United States v. Busse, 814 F.Supp. 760, 764-765 (E.D. Wis. 1993) (counsel's failure to advise defendant as to "impact" of sentencing guideline allowing reduction in offense level for "acceptance of responsibility" below objective standard of Strickland/Hill rendering plea of not guilty violative of the Sixth Amendment); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel was ineffective in failing to advise client about wisdom of accepting plea bargain which would have substantially reduced sentence and in failing to advise him and his family that "it was almost impossible for a 'buy and bust' defendant to obtain an acquittal"); Paters v. United States, 159 F.3d 1043 (7^th Cir. 1998) (counsel ineffective and plea involuntary for failure to advise defendant of facts and law material to decision whether to plead guilty or proceed to trial; i.e. misadvice as to effect on sentencing by going to trial); Smith v. United States, 348 F.3d 545; 2003 U.S. App. LEXIS 22558 (6^th Cir. 2003) (A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available); Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999); United States v. Holguin-Herrera, 412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 2005) ("A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial."); United States v. Ramsey, 323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 **43-44 (D DC 2004) (plea of not guilty involuntary where attorney failed to fully inform defendant of risk factors in proceeding to trial instead of pleading guilty) (collecting cases). Cf. United States v. Booth, 2005 U.S. App. LEXIS 28896 (3^rd Cir. 12-29-05) (failure to advise defendant he could plead guilty without plea agreement and potentially obtain downward adjustment for acceptance of responsibility prevented plea of not guilty from being constitutionally voluntary act); United States v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997) (Counsel was ineffective for giving incorrect sentencing information in contemplation of plea); Slevin v. United States, 1999 U.S. Dist. LEXIS 11430 (S.D.N.Y. 7-15-99) (granting evidentiary hearing on claim that plea of not guilty was unconstitutional because counsel was ineffective for giving incorrect sentencing information in contemplation of plea); Wanatee v. Ault, 39 F. Supp. 2d 1164; 1999 U.S. Dist. LEXIS 3520 (N.D. Iowa 3-22-99) (remanding case to Magistrate Judge for further factual development in claim of ineffective assistance of counsel in the plea process where counsel understated defendant's sentencing exposure if he proceeded to trial instead of pleading guilty); Ingrao v. United States, 1997 U.S. Dist. LEXIS 14407 (S.D.N.Y. 1997) (ordering evidentiary hearing on claim that plea of not guilty was violative of defendant's Sixth Amendment right to effective assistance of counsel in the plea process); United States v. Hurtado, 2003 U.S. App. LEXIS 7894 (2^nd Cir. 4-24-03) (remanding for evidentiary hearing on claim that counsel failed to advise defendant the government was contemplating a superseding indictment if she did not plead guilty); United States v. Lopez, 2007 U.S. App. LEXIS 25225 (9^th Cir. 2007) (Attorney's failure to advise defendant of "overwhelming" evidence while contemplating plea renders plea of not guilty involuntary).

In the instant case, in the Statement of Claim in his Section 2255. motion, Mr. Sewell has pleaded specific, sworn, factual allegations to demonstrate that his plea was not a voluntary and intelligent choice among the alternative courses of action open to him. These allegations include:

CLAIM NUMBER TWO

37.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

38.) Mr. Sewell's plea of not guilty, conviction, and sentence are violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea process as hereinafter more fully appears.

39.) Prior to trial and during the plea process, counsel advised Mr. Sewell to stand trial without first conducting an independent investigation of the facts, circumstances, pleadings and laws involved as hereinafter more fully appears.

40.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

41.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that there was virtually no chance he could prevail at trial due to the overwhelming weight and quality of the government's evidence.

42.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.³⁵

43.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the overwhelming amount and quality of evidence available to the United States to use against Mr. Sewell.

44.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the government's actual conviction rate after federal criminal trials.

45.) Prior to trial and during the plea process, counsel could have but did not fully advise Mr. Sewell as to the law relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

46.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that he could plead guilty or nolo contendere without an 'offer' or 'deal' or 'plea agreement' with the government. While the 'straight up' plea of guilty or nolo contendere could have been rejected by the Court under certain limited circumstances³⁶, it was extremely unlikely that the Court would have done so in his case.

47.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that, if he tendered a timely plea of guilty or nolo contendere and demonstrated remorse, he could likely obtain a 3-points reduction in his offense level under U.S.S.G. § 3E1.1 for "acceptance of responsibility".

48.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if the government offered him a "plea agreement".

49.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if he cooperated with the government in the investigation or prosecution of another person who has committed an offense.

50.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he pleaded guilty or nolo contendere he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors. Counsel could have but did not explain that a timely plea of guilty or nolo contendere would have made additional, far more useful and powerful defenses available for Mr. Sewell at sentencing than he had by proceeding to trial.

51.) Counsel's acts and omissions set forth in ¶¶ 45-50 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to plead guilty or not guilty and proceed to trial.

52.) In actual fact, Mr. Sewell believed that there was no significant advantage in pleading guilty or nolo contendere instead of proceeding to trial. His plea of not guilty was predictated in material part on this understanding.

53.) If, prior to advising Mr. Sewell to plead not guilty, trial counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead plead guilty or nolo contendere either with or without a plea agreement.

54.) Counsel's omissions set forth in ¶¶ 39-53 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea process.

55.) Counsel's omissions set forth in ¶¶ 39-53 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea process.

56.) The advice received from counsel regarding whether to plead guilty, nolo contendere, or not guilty was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

57.) Based on the facts set forth in ¶¶ 39-56, Counsel's performance in the plea process fell below the objective standard of reasonableness required by the Sixth Amendment.

58.) Based on the facts set forth in ¶¶ 39-57, Mr. Sewell's plea of not guilty was not a voluntary and intelligent choice among the alternative courses of action open to him.

35 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

36 See United States v. Shepard, 322 U.S. App. D.C. 160; 102 F.3d 558 (D.C. Cir. 12-6-96) (citing United States v. Maddox, 48 F.3d 555, 556-558 (D.C. Cir. 1995) and Santobello v. New York, 404 U.S. 257, 260-262 (1971) and United States v. Jackson, 390 U.S. 570, 584 (1968) and United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973); Harris v. United States, ___ F.3d ___, 1998 U.S. App. LEXIS 20715 (11^th Cir. 8-13-98) (Court accepted plea of guilty precluding enhancement to sentence under 21 U.S.C. § 851 even when government "didn't know [defendant] was going to enter a plea")

(Statement of Claim ¶¶ 37-58)

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

Based on the foregoing, together with the allegations of the paragraphs incorporated by reference and the supporting evidence in the Appendix of Exhibits, Mr. Sewell's plea of Not Guilty was not a voluntary and intelligent choice among the alternative courses of action open to him and counsel's performance fell below the objective standard of Strickland/Hill.¹

Simply put, an attorney acting pursuant to the objective standard of the Sixth Amendment would have advised Mr. Sewell as to all law relevant to his decision whether to plead guilty or whether to proceed to trial. United States v. Turner, 2007 U.S. Dist. LEXIS 37844 (ND TX 5-23-07) (failure to advise defendant he could plead guilty without cooperation or a plea agreement and obtain a reduction in his sentence rendered plea of not guilty violative of the Sixth Amendment).³⁷

37 See also United States v. Lopez, 2007 U.S. App. LEXIS 25225 (9^th Cir. 10-24-07) (plea of not guilty involuntary where attorney failed to advise defendant he could plead guilty and obtain a reduced sentence without a plea agreement); United States v. Booth, 432 F.3d 542; 2005 U.S. App. LEXIS 28896 (3^rd Cir. 2005) (ineffective assistance of counsel in plea process where counsel failed to advise defendant he could plead guilty and obtain downward adjustment in sentence without plea agreement with government).

An attorney acting pursuant to the objective standard of the Sixth Amendment would have advised fully advised Mr. Sewell as to his "risk factors" to enable him to enter a knowing and voluntary plea of guilty or nolo contendere instead of involuntarily proceeding to a trial where the result could only be a verdict of guilty.³⁸

38 Pitcher v. United States, 371 F. Supp. 2d 246; 2005 U.S. Dist. LEXIS 10314 (SD NY 2005) (attorney's comment that defendant had "winnable case" prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel was ineffective in failing to advise and his family that "it was almost impossible for a 'buy and bust' defendant to obtain an acquittal"); United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 **6, 13 (5^th Cir. 2004) ("When the defendant lacks a full understanding of the risks of going to trial, he is unable to make an intelligent choice of whether to accept a plea or take his chances in court"); United States v. Holguin-Herrera, 412 F.3d 577; 2005 U.S. App. LEXIS 11061 (5^th Cir. 2005) ("A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial."); United States v. Ramsey, 323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 **43-44 (D DC 2004) (plea of not guilty involuntary where attorney failed to fully inform defendant of risk factors in proceeding to trial instead of pleading guilty) (collecting cases); United States v. Stout, 2006 U.S. App. LEXIS 5630 (10^th Cir. 3-6-06) (misinformation as to admissibility of certain incriminatory evidence rendered decision to proceed to trial involuntary).

Based on all of the foregoing, this Court should find that Mr. Sewell has stated a prima facie claim that his plea of Not Guilty was not a voluntary and intelligent choice among the alternative courses of action open to him and counsel's performance fell below the objective standard of Strickland.

2B.) Mr. Sewell Was Prejudiced By The objectively Unreasonable Performance of Counsel During The Plea Process Because, Absent The Constitutionally Deficient Performance, There Is A Reasonable Probability He Would Have Pleaded Guilty Or Nolo Contendere Instead Of Proceeding To Trial.

The second half of the Strickland/Hill test for ineffective assistance in the plea process, the "prejudice requirement", requires a defendant to:

. . . show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different."

Hill v. Lockhart, 474 U.S. at 57, 88 L.Ed.2d at 209.

More precisely, in the plea process:

"The second or 'prejudice' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."

Id. 474 U.S. at 59.³⁹ As in the determination of "prejudice" under the normal Strickland test, a "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (citing and quoting Strickland, 466 U.S. at 694)⁴⁰

39 See also Ostrander v. Green, 46 F.3d 347 (4^th Cir. 1995) ("There is a significant difference between the tests. Under Strickland, the defendant shows prejudice if, but for counsel's poor performance, there is a reasonable probability that the outcome of the entire proceeding would have been different. Under Hill, the defendant must show merely that there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial."). Cf. United States v. Gray, 63 F.3d 57 (1^st Cir. 1995) (prejudice established where defendant did not understand applicability of mandatory minimum).

40 It should be noted that a defendant "need not prove with certainty, or even by a preponderance of the evidence, that the outcome would have been different absent his attorney's deficient performance." Kates v. United States, 930 F.Supp. 189, 192 [n. 2] (E.D. Pa. 1996) ( citing United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992); Turner v. State of Tennessee, 858 F.2d at 1206-07 and [n. 11] (same); Paters v. United States, 159 F.3d 1043 (7th Cir. 1998) (same).

To establish "prejudice" sufficient to entitle him to an evidentiary hearing, the defendant must explicitly plead that but for "counsel's constitutionally ineffective performance" the defendant "would have pleaded not guilty and insisted on going to trial". Hill, 474 U.S. at 60.⁴¹

41 Courts construe this language to allow a defendant to plead "prejudice", in a claim of ineffective assistance of counsel in the plea process, by pleading or alleging "a reasonable probability" that, but for counsel's errors, he would have pleaded differently. Paters v. United States, 159 F.3d 1043; 1998 U.S. App. LEXIS 27932 *9, *12-13 (7^th Cir. 1998); Johnson v. Duckworth, 793 F.2d 898, 902 [n. 3] (7^th Cir. 1986) ("Johnson does not argue or allege in his brief, however, 'that there is a reasonable probability that, but for counsel's errors,' he would have accepted the plea agreement"); Golden v. United States, 35 F. Supp. 2d 664; 1999 U.S. Dist. LEXIS 6087 (ND IN 1999) (same — citing Johnson v. Duckworth); United States v. Washington, 1996 U.S. App. LEXIS 24837 (4^th Cir. 1996) (claim of ineffective assistance of counsel in the plea process denied because, "Washington does not allege, that there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial without counsel's alleged errors.") (emphasis added).

The defendant must also plead such facts and allegations that, if true, establish some objective evidence to support his allegations that, but for counsel's allegedly unprofessional failures, he would have pleaded not guilty and insisted on going to trial. Hill, 474 U.S. at 60⁴²

42 See Hill v. Lockhart, 474 U.S. at 60 ("special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty"); Hill v. Lockhart, 877 F.2d at 703-704 (time to serve in prison, after proceeding to trial and losing — but obtaining likely sentence commutation — would have been less than minimum time to serve before parole release under guilty plea); Holmes v. United States, 876 F.2d 1545, 1551-52 (11^th Cir. 1989) (age at time of plea to non-paroleable sentence indicated that "he would have risked trial, rather than agree to what likely amount[ed] to a life sentence"); United States v. Taylor, 139 F.3d 924 (D.C. Cir. 1998) (potential validity of advice of counsel defense supported claim defendant would have proceeded to trial if he had been fully advised as to the law); Iaea v. Sunn, 800 F.2d at 865 (evidence was that petitioner "was reluctant to plead guilty"); Nahodil, 36 F.3d at 326-27 (same); Chizen v. Hunter, 809 F.2d 560, 563 (9^th Cir. 1986) (evidence was that petitioner moved to withdraw guilty plea "as soon as [he] learned that the sentence imposed by the trial judge was different than the one he thought he bargained for"); Giardino, 797 F.2d at 32 (attorney's false statements as to available defense were material to decision whether to plead or go to trial); United States v. Streater, 70 F.3d 1314 (D.C. 1995) (same); Loughery, 908 F.2d at 1018 ("confidence undermined "that defendant would have pleaded guilty when uncommunicated Supreme Court decision reduced potential risk of proceeding to trial); Spearman v. United States, 860 F.Supp. 1234, 1243-44 (E.D. Mich. 1994) (plea agreement "illusory" as to value to defendant); Paters v. United States, 159 F.3d 1043 (7^th Cir. 1998) (affidavits by family that defendant was misadvised as to facts and law relevant to decision whether to plead guilty or proceed to trial); United States v. Ali, 186 F.3d 1; 1999 U.S. App. LEXIS 17734 (1^st Cir. 1999) (defendant prejudiced where record demonstrated that counsel improperly advised defendant he would be eligible for "Safety Valve" reduction if he pleaded guilty). But see Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999) (remanding for evidentiary hearing where facially valid constitutional claim supported solely by an affidavit in which defendant stated under oath that he "informed counsel his unambiguous intention to ACCEPT [sic] the 14 years instead of the 'life' sentence."); Griffin v. United States, 330 F.3d 733, 737 (6^th Cir 2003) (rejecting requirement for "additional objective evidence" beyond allegation that, but for counsel's misadvice, the defendant would have pleaded differently); Smith v. United States, 2003 U.S. App. LEXIS 22558 (6^th Cir. 11-3-03) (same).

Where a defendant is alleging that counsel's incompetence caused him to proceed to trial, instead of pleading guilty or nolo contendere, the same test applies.⁴³ The only difference in this situation is that the defendant must plead "that he would have accepted the plea" of guilty or nolo contendere, then provide some objective evidence to support such allegation.⁴⁴

43 United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 (5th Cir. 2004); It should be noted that, where ineffective assistance of counsel in the plea process resulted in a defendant's unconstitutionally counseled decision to proceed to trial, such as in cases where the attorney failed to advise a defendant as to material facts or law relevant to his decision to plead guilty or proceed to trial, it is well settled law that a subsequent fair trial does not remedy the deprivation. United States v. Blaylock, 20 F.3d 1458, 1465-66 (9^th Cir. 1994) (citing United States ex rel. Caruso v. Zelinsky, 689 F.2d 438 (3^rd Cir. 1982); Alvernaz v. Ratelle, 831 F.Supp. 790, 797-99 (S.D. Cal. 1993) (granting specific performance of original plea offer) (citing cases); Turner v. Tennessee, 858 F.2d 1201, 1208 (6^th Cir. 1988) (requiring reinstatement of the original plea offer unless the prosecution can show nonvindictive reasons for withdrawing the offer); Smith v. United States, 348 F.3d 545; 2003 U.S. App. LEXIS 22558 (6^th Cir. 2003); Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999).

44 United States v. Booth, 432 F.3d 542; 2005 U.S. App. LEXIS 28896 (3^rd Cir. 2005) (counsel's failure to advise defendant he could plead guilty and obtain downward adjustment in sentence without plea agreement with government prejudiced defendant where he likely could have obtained downward adjustment under U.S.S.G. § 3E1.1 for plea of guilty); United States v. Gordon, 156 F.3d 376 (2^nd Cir. 1998) (substantial difference between sentence received after trial and sentence potentially available had defendant pleaded guilty constitutes " objective evidence" supporting claim that defendant would have pleaded guilty with competent legal advice); Mask v. McGinnis, 28 F. Supp. 2d 122; 1998 U.S. Dist. LEXIS 17497 (S.D.N.Y. 1998) (same); Wanatee v. Ault, 39 F. Supp. 2d 1164; 1999 U.S. Dist. LEXIS 3520 (N.D. Iowa 3-22-99) (same); Carmichael v. United States, 1998 U.S. Dist. LEXIS 20313 (D. Conn. 12-16-98) (same); Ingrao v. United States, 1997 U.S. Dist. LEXIS 14407 (S.D.N.Y. 1997) (same); Slevin v. United States, 1999 U.S. Dist. LEXIS 11430 (S.D.N.Y. 7-15-99) (same); United States v. Mendoza, 1999 U.S. App. LEXIS 18794 (9^th Cir. 1999) (same); Kates v. United States, 930 F.Supp. 189, 192 (E.D. Pa. 1996) (failure to inform defendant of substantial difference in sentence if he proceeded to trial, prejudiced defendant by increased sentence requiring resentencing); Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D. Cal. 1993) (same); United States v. Day, 969 F.2d 39, 43 (3rd Cir. 1992) (same); Turner v. State of Tennessee, 664 F.Supp. at 1120 (same); United States v. Blaylock, 20 F.3d 1458, 1465-66 (9^th Cir. 1994) (counsel's failure to advise defendant as to facts material to plea decision prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment; objective evidence supported prejudice because substantial difference between sentence received and potential sentence available through plea of guilty); United States v. Busse, 814 F.Supp. 760, 764-765 (E.D. Wis. 1993) (counsel's failure to advise defendant as to "impact" of sentencing guideline allowing reduction in offense level for "acceptance of responsibility" below objective standard and prejudiced defendant within the meaning of Strickland/Hill); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel was ineffective and objective evidence of prejudice demonstrated where counsel failed to advise client about wisdom of accepting plea bargain which would have substantially reduced sentence); Paters v. United States, 159 F.3d 1043 (7th Cir. 1998) (counsel ineffective for failure to advise defendant of facts and law material to decision whether to plead guilty or proceed to trial); Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999) (remanding for evidentiary hearing where defendant pleaded that counsel improperly rejected favorable plea offer); United States v. Brannon, 2002 U.S. App. LEXIS 20969 (4^th Cir. 10-7-02) (vacating denial of motion pursuant to 28 U.S.C. § 2255 where attorney's affidavit indicated potential sentence reduction for plea of guilty and evidence conflicting as to whether defendant would have accepted plea). But see Griffin v. United States, 330 F.3d 733, 737 (6^th Cir 2003) (rejecting requirement for "additional objective evidence" beyond allegation that, but for counsel's misadvice, the defendant would have pleaded not guilty and proceeded to trial); Smith v. United States, 2003 U.S. App. LEXIS 22558 (6^th Cir. 11-3-03) (same).

In the instant case, in his Statement of Claim in his Section 2255 motion, Mr. Sewell. has pleaded specific, sworn, factual allegations to demonstrate "prejudice" from counsel's deficient performance during the plea process. These allegations include:

CLAIM NUMBER TWO

37.) Mr. Sewell restates, repleads, and realleges the facts, pleadings, and allegations set forth in ¶¶ 1-22 herein.

38.) Mr. Sewell's plea of not guilty, conviction, and sentence are violative of his Sixth Amendment constitutional right to effective assistance of counsel in the plea process as hereinafter more fully appears.

39.) Prior to trial and during the plea process, counsel advised Mr. Sewell to stand trial without first conducting an independent investigation of the facts, circumstances, pleadings and laws involved as hereinafter more fully appears.

40.) Prior to trial and during the plea process, counsel could have but did not fully inform themselves and Mr. Sewell as to all facts relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

41.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that there was virtually no chance he could prevail at trial due to the overwhelming weight and quality of the government's evidence.

42.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he proceeded to jury trial in federal court, he had only about 1 chance in 8, and probably substantially less chance than that, of walking out of court free.⁴⁵

43.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the overwhelming amount and quality of evidence available to the United States to use against Mr. Sewell.

44.) Counsel's failures set forth in ¶¶ 39-42 were due to an incomplete factual investigation as to the government's actual conviction rate after federal criminal trials.

45.) Prior to trial and during the plea process, counsel could have but did not fully advise Mr. Sewell as to the law relevant to the determination whether to plead guilty, nolo contendere, or not guilty and proceed to trial.

46.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that he could plead guilty or nolo contendere without an 'offer' or 'deal' or 'plea agreement' with the government. While the 'straight up' plea of guilty or nolo contendere could have been rejected by the Court under certain limited circumstances⁴⁶, it was extremely unlikely that the Court would have done so in his case.

47.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that, if he tendered a timely plea of guilty or nolo contendere and demonstrated remorse, he could likely obtain a 3-points reduction in his offense level under U.S.S.G. § 3E1.1 for "acceptance of responsibility".

48.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if the government offered him a "plea agreement".

49.) Mr. Sewell was affirmatively misadvised that he could only obtain a benefit to his sentence if he cooperated with the government in the investigation or prosecution of another person who has committed an offense.

50.) Prior to trial and during the plea process, counsel could have but did not advise Mr. Sewell that if he pleaded guilty or nolo contendere he would not waive his right to raise any defenses at his sentencing; he would still be able to challenge his "Base Offense Level", his "Total Offense Level", his relevant conduct, his criminal history, the facts allegedly supporting the foregoing as well as other sentencing factors such as whether he was entitled to a downward departure or downward variance or adjustments for mitigating factors. Counsel could have but did not explain that a timely plea of guilty or nolo contendere would have made additional, far more useful and powerful defenses available for Mr. Sewell at sentencing than he had by proceeding to trial.

51.) Counsel's acts and omissions set forth in ¶¶ 45-50 were due to an incomplete investigation of the law relevant to Mr. Sewell's determination whether to plead guilty or not guilty and proceed to trial.

52.) In actual fact, Mr. Sewell believed that there was no significant advantage in pleading guilty or nolo contendere instead of proceeding to trial. His plea of not guilty was predictated in material part on this understanding.

53.) If, prior to advising Mr. Sewell to plead not guilty, trial counsel had conducted an independent investigation of the facts, circumstances, pleadings and laws involved in Mr. Sewell's case, they would have advised Mr. Sewell to instead plead guilty or nolo contendere either with or without a plea agreement.

54.) Counsel's omissions set forth in ¶¶ 39-53 were not the result of reasoned decisions based on strategic or tactical choices among all plausible options available to counsel for the defense of Mr. Sewell during the plea process.

55.) Counsel's omissions set forth in ¶¶ 39-53 were the result of counsel's abdication of the duty and responsibility to advocate Mr. Sewell's case and cause during the plea process.

56.) The advice received from counsel regarding whether to plead guilty, nolo contendere, or not guilty was so incorrect and so insufficient that it undermined Mr. Sewell's ability to make a voluntary and intelligent choice among the alternative courses of action open to him.

57.) Based on the facts set forth in ¶¶ 39-56, Counsel's performance in the plea process fell below the objective standard of reasonableness required by the Sixth Amendment.

58.) Based on the facts set forth in ¶¶ 39-57, Mr. Sewell's plea of not guilty was not a voluntary and intelligent choice among the alternative courses of action open to him.

59.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because, absent said performance, there is a reasonable probability that Mr. Sewell would have pleaded guilty or nolo contendere instead of proceeding to trial.

60.) Mr. Sewell was prejudiced by counsel's constitutionally ineffective and deficient performance set forth herein, because a substantial difference exists between the sentence he could have obtained by a plea of guilty or nolo contendere and the actual sentence he received after trial. More specifically, had Mr. Sewell pleaded guilty or nolo contendere instead of proceeding to trial, there is a reasonable probability he would have received a sentence substantially less than the sentence he received after trial. This is because there is a reasonable probability that he would have received a 3 points downward adjustment in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility and the Court would, therefore, have initiated its downward departure from a sentence of 262 months instead of from 360 months; a difference of approximately 100 months.

61.) The facts set forth in ¶ 60 plead and demonstrate "objective evidence" and "special circumstances" to support Mr. Sewell's allegations set forth in ¶ 59.

62.) Mr. Sewell was prejudiced from the unprofessional acts and omissions of counsel, set forth herein, because said omissions undermine confidence in the reliability of the plea process in his case.

45 See: Judicial Business of the United States Courts, 2007, Table D4, U.S. District Courts — Criminal Defendants Disposed of, by Type of Disposition During the 12-Month Period Ending September 30, 2007http.://www.uscourts.gov/judbus2007/appendices/D04Sep07.pdf

46 See United States v. Shepard, 322 U.S. App. D.C. 160; 102 F.3d 558 (D.C. Cir. 12-6-96) (citing United States v. Maddox, 48 F.3d 555, 556-558 (D.C. Cir. 1995) and Santobello v. New York, 404 U.S. 257, 260-262 (1971) and United States v. Jackson, 390 U.S. 570, 584 (1968) and United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973); Harris v. United States, ___ F.3d ___, 1998 U.S. App. LEXIS 20715 (11^th Cir. 8-13-98) (Court accepted plea of guilty precluding enhancement to sentence under 21 U.S.C. § 851 even when government "didn't know [defendant] was going to enter a plea")

(Statement of Claim ¶¶ 37-62)

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

Based on Mr. Sewell's specific, sworn, factual allegations, together with the allegations of the paragraphs incorporated by reference and the supporting evidence in the Appendix of Exhibits, Mr. Sewell was prejudiced by the objectively unreasonable performance of counsel in the plea process. United States v. Blaylock, 20 F.3d 1458, 1465-66 (9^th Cir. 1994) (counsel's failure to advise defendant as to facts material to plea decision prevented plea of not guilty from being a knowing and voluntary act within the meaning of the Sixth Amendment; objective evidence supported prejudice because substantial difference between sentence received and potential sentence available through plea of guilty).⁴⁷

47 See also United States v. Booth, 432 F.3d 542; 2005 U.S. App. LEXIS 28896 (3^rd Cir. 2005) (counsel's failure to advise defendant he could plead guilty and obtain downward adjustment in sentence without plea agreement with government prejudiced defendant where he likely could have obtained downward adjustment under U.S.S.G. § 3E1.1 for plea of guilty); United States v. Gordon, 156 F.3d 376 (2^nd Cir. 1998) (substantial difference between sentence received after trial and sentence potentially available had defendant pleaded guilty constitutes " objective evidence" supporting claim that defendant would have pleaded guilty with competent legal advice); Mask v. McGinnis, 28 F. Supp. 2d 122; 1998 U.S. Dist. LEXIS 17497 (S.D.N.Y. 1998) (same); Wanatee v. Ault, 39 F. Supp. 2d 1164; 1999 U.S. Dist. LEXIS 3520 (N.D. Iowa 3-22-99) (same); Carmichael v. United States, 1998 U.S. Dist. LEXIS 20313 (D. Conn. 12-16-98) (same); Ingrao v. United States, 1997 U.S. Dist. LEXIS 14407 (S.D.N.Y. 1997) (same); Slevin v. United States, 1999 U.S. Dist. LEXIS 11430 (S.D.N.Y. 7-15-99) (same); United States v. Mendoza, 1999 U.S. App. LEXIS 18794 (9^th Cir. 1999) (same); Kates v. United States, 930 F.Supp. 189, 192 (E.D. Pa. 1996) (failure to inform defendant of substantial difference in sentence if he proceeded to trial, prejudiced defendant by increased sentence requiring resentencing); Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D. Cal. 1993) (same); United States v. Day, 969 F.2d 39, 43 (3^rd Cir. 1992) (same); Turner v. State of Tennessee, 664 F.Supp. at 1120 (same); United States v. Busse, 814 F.Supp. 760, 764-765 (E.D. Wis. 1993) (counsel's failure to advise defendant as to "impact" of sentencing guideline allowing reduction in offense level for "acceptance of responsibility" below objective standard and prejudiced defendant within the meaning of Strickland/Hill); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel was ineffective and objective evidence of prejudice demonstrated where counsel failed to advise client about wisdom of accepting plea bargain which would have substantially reduced sentence); Paters v. United States, 159 F.3d 1043 (7^th Cir. 1998) (counsel ineffective for failure to advise defendant of facts and law material to decision whether to plead guilty or proceed to trial); Tyler v. United States, 1999 U.S. App. LEXIS 13621 (6^th Cir. 1999) (remanding for evidentiary hearing where defendant pleaded that counsel improperly rejected favorable plea offer); United States v. Brannon, 2002 U.S. App. LEXIS 20969 (4^th Cir. 10-7-02) (vacating denial of motion pursuant to 28 U.S.C. § 2255 where attorney's affidavit indicated potential sentence reduction for plea of guilty and evidence conflicting as to whether defendant would have accepted plea); Griffin v. United States, 330 F.3d 733, 737 (6^th Cir 2003) (rejecting requirement for "additional objective evidence" beyond allegation that, but for counsel's misadvice, the defendant would have pleaded not guilty and proceeded to trial); Smith v. United States, 2003 U.S. App. LEXIS 22558 (6^th Cir. 11-3-03) (same).

There is a big difference between the sentence of 300 months which Mr. Sewell received after trial and the sentence of with a starting point for downward departure of 262 months which he likely could have obtained through a timely plea of guilty or nolo contendere. Had he been correctly advised, it cannot be said that he would not have pleaded guilty. Certainly "confidence must be undermined" as to what he would have done.

Mr. Sewell's case is remarkably similar to the court decisions in Griffin v. United States, 330 F.3d 733 (6^th Cir. 2003) and Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D. Cal. 1993) and Kates v. United States, 930 F.Supp. 189, 192 (E.D. Pa. 1996) and United States v. Turner, 2007 U.S. Dist LEXIS 37844 (ND TX 5-23-07). In each of those cases, the defendants pleaded not guilty and proceeded to trial without being informed of the true consequences of his choice. In each case, the courts vacated the sentences with findings that the defendant's decision was based on "miscalculated risk factors"⁴⁸ which had resulted from their counsel's objectively unreasonable performance. Alvernaz v. Ratelle, 831 F.Supp. at 794-95; Kates, 930 F.Supp. at 192; Busse, 814 F.Supp. at 764-765; Turner, 2007 U.S. Dist. LEXIS 37844 at **2-3. In each case, the government argued that the defendant's protestations of innocence 'proved' that he would not have pleaded guilty. Alvernaz v. Ratelle, 831 F.Supp. at 796; Kates, 930 F.Supp. at 191-192; Busse, 814 F.Supp. at 762-765; Turner, 2007 U.S. Dist. LEXIS 37844 at **11-22; Griffin, 330 F.3d at 738. In each case, the courts rejected this argument.

48 See also Pitcher v. United States, 371 F. Supp. 2d 246; 2005 U.S. Dist. LEXIS 10314 (SD NY 2005) (attorney's comment that defendant had "winnable case" supported prejudice in claim of ineffective assistance of counsel in proceeding to trial instead of pleading guilty); Boria v. Keane, 99 F.3d 492 (2^nd Cir. 1996) (counsel's failure to advise client that "it was almost impossible for a 'buy and bust' defendant to obtain an acquittal" supported prejudice in claim of ineffective assistance of counsel in proceeding to trial instead of pleading guilty); United States v. Grammas, 376 F.3d 433; 2004 U.S. App. LEXIS 13686 **6, 13 (5^th Cir. 2004) (allegation that "he went to trial in part because [attorney] advised him that he would be acquitted on one of the counts of the indictment" supported prejudice in claim of ineffective assistance of counsel in proceeding to trial instead of pleading guilty); United States v. Ramsey, 323 F. Supp. 2d 27; 2004 U.S. Dist. LEXIS 12462 **43-44 (D DC 2004) (failure to fully inform defendant of "strength of government case" and risk factors in proceeding to trial instead of pleading guilty supported prejudice in claim of ineffective assistance of counsel in proceeding to trial instead of pleading guilty) (collecting cases); United States v. Stout, 2006 U.S. App. LEXIS 5630 (10^th Cir. 3-6-06) (allegation of misinformation as to admissibility of certain incriminatory evidence supported prejudice in claim decision to proceed to trial involuntary).

In Turner the government argued that the defendant's protestations of innocence prior to, during and after trial, 'proved' he would never have pleaded guilty. The Court rejected this argument by pointing out that Turner's decision and statements were based in constitutionally insufficient advice and, had Turner been fully advised, he may very well have pleaded guilty even without a plea agreement. Turner, 2007 U.S. Dist. LEXIS 37844 at **11-22.

In Kates, the Court graphically stated its analysis as follows:

The government argues that, because Mr. Kates' attorneys found it difficult to deal with him, and Mr. Kates was adamant about not accepting the plea agreement, his attorneys were not ineffective. Having come to know Walter Kates quite well, albeit from the relatively far reaches of the bench, I agree that he is not the easiest of customers. Difficult he can be. But when one undertakes the stewardship of a client on the nether end of a criminal caption, one assumes the risk that not every little tete-a-tete with that client will be all peaches and cream. One just has to overcome that and get across the salient facts, necessary for that client to make an intelligent decision. The client has a right not to be left in the foggy dark.

Kates, 930 F.Supp. at 191-192.

In Griffin v. United States, 330 F.3d 733 (6^th Cir. 2003), a defendant brought a claim of ineffective assistance of counsel in a Section 2255 motion due to an attorney's failure to properly advise him as to pleading guilty instead of proceeding to trial. The government argued that the record showed that the petitioner would not have pled guilty if he had known about the offer because he maintained his innocence throughout the trial and sentencing. Id. at 738. The Sixth Circuit held that the petitioner's "repeated declarations of innocence do not prove, as the government claims, that he would not have accepted a guilty plea." Id. (citing North Carolina v. Alford, 400 U.S. 25, 33, 91 S. Ct. 160, 165, 27 L. Ed. 2d 162 (1970) ("reasons other than the fact that he is guilty may induce a defendant to so plead, . . . and he must be permitted to judge for himself in this respect" (quotation omitted))). The court went on to state the following:

Defendants must claim innocence right up to the point of accepting a guilty plea, or they would lose their ability to make any deal with the government. It does not make sense to say that a defendant must admit guilt prior to accepting a deal on a guilty plea. It therefore does not make sense to say that a defendant's protestations of innocence belie his later claim that he would have accepted a guilty plea. Furthermore, a defendant must be entitled to maintain his innocence throughout trial under the Fifth Amendment. Finally, Griffin could have possibly entered an Alford plea even while protesting his innocence. These declarations of innocence are therefore not dispositive on the question of whether Griffin would have accepted the government's plea offer.

Id. See also Lalani v. United States, 2009 U.S. App. LEXIS 3847 (11^th Cir. 2-26-09) (same)

While the facts of Mr. Sewell's case are unusual in this court, well established, voluminous, precedent supports and demonstrates the constitutional violation which he has suffered. To the extent that counsel faced a difficult job in advising Mr. Sewell, this is simply part and parcel of the obligation imposed by the Sixth Amendment, and accepted by counsel, in criminal cases. It bears repeating,

. . . when one undertakes the stewardship of a client on the nether end of a criminal caption, one assumes the risk that not every little tete-a-tete with that client will be all peaches and cream. One just has to overcome that and get across the salient facts, necessary for that client to make an intelligent decision. The client has a right not to be left in the foggy dark.

Kates v. United States, 930 F.Supp. 189, 191-192 (E.D. Pa. 1996)

Based on the foregoing facts and law, this Court should find that Mr. Sewell has stated a prima facie claim of "prejudice" in the plea process sufficient to entitle him to an evidentiary hearing to enable him to prove his case. Id

3.) AN EVIDENTIARY HEARING IS NECESSARY AND WOULD BE USEFUL TO THIS COURT

Title 28, United States Code, Section 2255 provides that a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released or for reduction of sentence may move the court which imposed the sentence to vacate, set aside or correct the sentence. This section also provides as follows:

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."

28 U.S.C. § 2255⁴⁹

49 United States v. Grist, 1998 U.S. App. LEXIS 20199; 1998 Colo. J. C.A.R. 4384 (10^th Cir. 1998) (evidentiary hearing required unless Section 2255 motion, files, and trial record conclusively show petitioner entitled to no relief; court cannot choose between affidavits); United States v. Blaylock, 20 F.3d 1458, 1465 (9^th Cir. 1994) (evidentiary hearing required unless Section 2255 motion, files, and trial record "conclusively show" petitioner entitled to no relief); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3^rd Cir. 1994) (petitioner entitled to evidentiary hearing on ineffective assistance of counsel claim where facts viewed in light most favorable to petitioner would entitle him to relief); Stoia v. United States, 22 F.3d 766, 768 (7^th Cir. 1994) (same); Ciak v. United States, 59 F.3d 296, 306-07 (2^nd Cir. 1995) (same); Shaw v. United States, 24 F.3d 1040, 1043 (8^th Cir. 1994) (same); Nichols v. United States, 75 F.3d 1137, 1145-46 (7^th Cir. 1996) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel when record inconclusive on issue); United States v. Witherspoon, 231 F.3d 923; 2000 U.S. App. LEXIS 27778 (4^th Cir. 11-6-00) (petitioner entitled to evidentiary hearing when motion presented colorable claim and unclear whether counter affidavit disputed defendant's allegations); Guy v. Cockrell, 343 F.3d 348; 2003 U.S. App. LEXIS 16632 (5^th Cir. 2003) (disputed issues of material fact require evidentiary hearing); Paprocki v. Foltz, 869 F.2d 281, 287 (6^th Cir. 1989) (if there are factual issues in dispute in a section 2255 petition and the record is insufficient to enable the district court to resolve the issue of whether a claim of ineffective assistance of counsel is meritorious, the district court must hold an evidentiary hearing); Buenoano v. Singletary, 963 F.2d 1433; 1992 U.S. App. LEXIS 12462 (11^th Cir. 1992) ("An evidentiary hearing . . . is . . . necessary if Buenoano's petition alleges facts that, if true, establish a right to relief.") (citing Agan v. Dugger, 835 F.2d 1337, 1338 (11^th Cir. 1987) and Tejada v. Dugger, 941 F.2d 1551, 1559 (11^th Cir. 1991)); Ellison v. United States, 324 F.2d 710; 1963 U.S. App. LEXIS 3595 (10^th Cir. 1963); United States v. Gonzalez, 98 Fed. Appx. 825; 2004 U.S. App. LEXIS 10946 (10^th Cir. 2004).

In the instant case as set forth in the Statement of Claim of the Section 2255 motion, and the foregoing arguments, Mr. Sewell has pleaded, presented evidence, and argued the applicable law to demonstrate that his conviction and/or sentence is violative of his Sixth Amendment right to effective assistance of counsel in the pretrial, plea, trial, sentencing and direct appeal process. Id

Mr. Sewell has also submitted the following proffer to support the foregoing allegations:

93.) Pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings, Mr. Sewell asks leave of this Court to invoke the processes of discovery. More specifically, he asks this Honorable Court to ORDER that the witnesses set forth in ¶ 89 allow themselves to be deposed. The evidence developed through the foregoing depositions will materially support the allegations of Mr. Sewell, as to the "performance" of counsel, detailed and set forth herein. More specifically, Mr. Sewell requests this Court to allow counsel to question Hayes H. Gable, III, Timothy E. Warriner, Alexandra Paradis Negin and Mark Joseph Reichel as to the reasons for their failures complained of herein. Mr. Sewell requests the Court to allow counsel to question AUSA Hitt as to whether and under what circumstances he would have agreed to a bench trial on stipulated facts.

94.) Mr. Sewell proffers to this Honorable Court that the foregoing depositions and/or evidentiary hearing will substantiate his allegations set forth in ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80.

(Statement of Claim ¶¶ 93-94)

While many of the allegations are already well established by the files and records of this case, many of the material allegations concern events which took place outside the courtroom and are not, therefore, part of the "files and records". (See Statement of Claim, ¶¶ 25-28, 30-31, 39-51, 53-56, 65-80). These allegations require an evidentiary hearing under well settled law. United States v. Blaylock, 20 F.3d 1458, 1465 (9^th Cir. 1994) (evidentiary hearing required unless Section 2255 motion, files, and trial record "conclusively show" petitioner entitled to no relief); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3^rd Cir. 1994) (petitioner entitled to evidentiary hearing on ineffective assistance of counsel claim where facts viewed in light most favorable to petitioner would entitle him to relief); Stoia v. United States, 22 F.3d 766, 768 (7^th Cir. 1994) (same); Ciak v. United States, 59 F.3d 296, 306-07 (2^nd Cir. 1995) (holding that district court erred in denying request for evidentiary hearing when petitioner "alleged facts, which, if found to be true, would have entitled him to habeas relief."); Shaw v. United States, 24 F.3d 1040, 1043 (8^th Cir. 1994) (same); Nichols v. United States, 75 F.3d 1137, 1145-46 (7^th Cir. 1996) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel when record inconclusive on issue); United States v. Witherspoon, 231 F.3d 923; 2000 U.S. App. LEXIS 27778 (4^th Cir. 11-6-00) (petitioner entitled to evidentiary hearing when motion presented colorable claim and unclear whether counter affidavit disputed defendant's allegations); United States v. Grist, 1998 U.S. App. LEXIS 20199; 1998 Colo. J. C.A.R. 4384 (10^th Cir. 1998) (evidentiary hearing required unless Section 2255 motion, files, and trial record conclusively show petitioner entitled to no relief; court cannot choose between affidavits); Guy v. Cockrell, 343 F.3d 348; 2003 U.S. App. LEXIS 16632 (5^th Cir. 2003) (disputed issues of material fact require evidentiary hearing).

Based on all of the foregoing, Mr. Sewell respectfully requests this Honorable Court to ORDER an evidentiary hearing where he can prove his case.

CONCLUSION

Mr. Sewell has demonstrated by the foregoing argument, the factual allegations of his motion, and the attached verified exhibits, that his conviction and/or sentence is violative of his Sixth Amendment right to effective assistance of counsel in the pretrial, plea, trial, sentencing and direct appeal process in his case.

While many of the allegations are already supported by the record, some need to be developed at an evidentiary hearing.

WHEREFORE MOVANT Harvey L. Sewell respectfully asks this HONORABLE COURT to:

ORDER an evidentiary hearing as set forth in his motion and, upon proof of his allegations herein,

ORDER that Mr. Sewell's conviction be VACATED and his indictment be DISMISSED; or,

ORDER that Mr. Sewell's sentence be VACATED and that he be RESENTENCED to a substantially reduced sentence calculated as if he had timely pleaded guilty or nolo contendere or had proceeded to a bench trial on stipulated facts and accepted responsibility for the offense. HARVEY L. SEWELL

Date:_______________ _____________________________ Defendant-Movant 16188-097 3901 Klein Blvd Lompoc, CA 93436 United States District CourtEastern District of CaliforniaAt SacramentoUNITED STATES OF AMERICA, ) Crim. No. 2:05-cr-00554-LKK-1) Civil No. 2:11-cv-809-LKK-EFBPlaintiff-Respondent, ) HON. LAWRENCE K. KARLTON) MAG. JUDGE BRENNANvs. )) CERTIFICATE OF FILINGHARVEY L. SEWELL, ) AND SERVICE)Defendant-Movant. ) Pursuant to the principles of Houston v. Lack, 487 U.S. 266, 276 (1988), the attached motion pursuant to 28 U.S.C. § 2255 was filed with the Court and served on counsel for the United States on this date by depositing the required originals and copies of same into the prison mail collection box, in sealed envelopes, first class postage affixed and addressed to: Clerk — U.S. District Court, 5011 Street, Room 4-200, Sacramento, CA 95814-7300 and Office of U.S. Attorney For The Eastern District of California, 5011 Street, Sacramento, CA 95814.

I have read the foregoing and state that the facts are set forth upon personal knowledge and are true and correct. 28 U.S.C. § 1746 Harvey L. Sewell

Signed under penalty of perjury under , this __________ day of __________, 2011. _________________________________________ 16188-097 3901 Klein Blvd Lompoc, CA 93436 United States District CourtEastern District of CaliforniaAt SacramentoUNITED STATES OF AMERICA, ) Crim. No. 2:05-cr-00554-LKK-1) Civil No. 2:11-cv-809-LKK-EFBPlaintiff-Respondent, ) HON. LAWRENCE K. KARLTON) MAG. JUDGE BRENNANvs. ))HARVEY L. SEWELL, ) VERIFICATION OF EXHIBITS)Defendant-Movant. )COMES NOW DEFENDANT-MOVANT Harvey L. Sewell and deposes and states as follows:

1.) I am the Defendant-Movant in the above entitled case and the instant proceedings pursuant to 28 U.S.C. § 2255.

2.) The attached documents are submitted as exhibits in support of my Section 2255 motion. I have personal knowledge of the originals of the exhibits and state that the copies truly and accurately represent said originals.

3.) I have read the foregoing and state that it is true and correct. 28 U.S.C. § 1746 HARVEY L. SEWELL

Signed under penalty of perjury under this _______ day of ______________, 2011. ______________________________________ Defendant-Movant 16188-097 3901 Klein Blvd Lompoc, CA 93436

Sewell Exhibit A1

TO THE CLERK OF COURT: This form is filed as an ATTACHMENT to my pleading in the following current cause of action or appeal (indicate current case caption, docket no., judicial district, etc.):

United States v. Harvey L. Sewell, Crim. No. 2:05-cr-00554-LKK-1 (ED CA) (Judge Karlton)

My current cause of action or appeal is (check all that apply):X 28 USC § 2255 5 USC § 552a

_____ A direct appeal of my original criminal conviction or sentence (filled with the U.S. Court of Appeals); An original petition for writ of habeas corpus pursuant to title , or appeal of its denial, regarding my criminal conviction or sentence (filled with sentencing court or U.S. Court of Appeals); or _____ Other, e.g., § 2241 habeas petition; Privacy Act of 1974 (), etc. (describe): As part of my current cause of action or appeal, I request the court consider my Pre-Sentence Report (PSR) and Judgement (including Statement of Reasons (SOR)), where necessary, from my underlying criminal case, described as follows (indicate underlying criminal case caption, docket no., judicial district, sentencing judge and date, etc.):

United States v. Harvey L. Sewell, Crim. No. 2:05-cr-00554-LKK-1 (ED CA) (Judge Karlton)

This form is for informational and notification purposes, and is not intended to create a new procedural requirement for inmates, courts, or clerks.

Respectfully submitted: Harvey L. Sewell16188-0973901 Klein BlvdX Lompoc, CA 93436

Inmate Signature X Inmate Printed Name Reg. No. Date Signed Institution Address DIRECTIONS TO INMATE: The Bureau of Prisons prohibits inmates from possessing copies of their Presentence Reports (PSR) or Statement of Reasons (SOR) from criminal judgements. This form is for you to ATTACH to any court action where, as part of your cause of action or appeal, you request the court to consider your PSR or SOR. Complete this form as indicated, and submit it as an ATTACHMENT to your pleading to the court considering your current cause of action or appeal. This form is not a pleading, but an ATTACHMENT requesting the court obtain and consider your PSR and/or SOR when needed. You only need this form when your cause of action involves the PSR or SOR. Be sure to indicate in your pleading the specific part(s) of the PSR or SOR you believe relevant to your case.

(This form may be replicated via WP)

Sewell Exhibit B1

TO THE CLERK OF COURT: This form is filed as an ATTACHMENT to my pleading in the following current cause of action or appeal (indicate current case caption, docket no., judicial district, etc.):

United States v. Harvey L. Sewell, Crim. No. 2:05-cr-00554-LKK-1 (ED CA) (Judge Karlton)

My current cause of action or appeal is (check all that apply):X 28 USC § 2255 5 USC § 552a

_____ A direct appeal of my original criminal conviction or sentence (filled with the U.S. Court of Appeals); An original petition for writ of habeas corpus pursuant to title , or appeal of its denial, regarding my criminal conviction or sentence (filled with sentencing court or U.S. Court of Appeals); or _____ Other, e.g., § 2241 habeas petition; Privacy Act of 1974 (), etc. (describe): As part of my current cause of action or appeal, I request the court consider my Pre-Sentence Report (PSR) and Judgement (including Statement of Reasons (SOR)), where necessary, from my underlying criminal case, described as follows (indicate underlying criminal case caption, docket no., judicial district, sentencing judge and date, etc.):

United States v. Harvey L. Sewell, Crim. No. 2:05-cr-00554-LKK-1 (ED CA) (Judge Karlton)

This form is for informational and notification purposes, and is not intended to create a new procedural requirement for inmates, courts, or clerks.

Respectfully submitted: Harvey L. Sewell16188-0973901 Klein BlvdX Lompoc, CA 93436

Inmate Signature X Inmate Printed Name Reg. No. Date Signed Institution Address DIRECTIONS TO INMATE: The Bureau of Prisons prohibits inmates from possessing copies of their Presentence Reports (PSR) or Statement of Reasons (SOR) from criminal judgements. This form is for you to ATTACH to any court action where, as part of your cause of action or appeal, you request the court to consider your PSR or SOR. Complete this form as indicated, and submit it as an ATTACHMENT to your pleading to the court considering your current cause of action or appeal. This form is not a pleading, but an ATTACHMENT requesting the court obtain and consider your PSR and/or SOR when needed. You only need this form when your cause of action involves the PSR or SOR. Be sure to indicate in your pleading the specific part(s) of the PSR or SOR you believe relevant to your case.

(This form may be replicated via WP)

Sewell Exhibit C

U.S. District Court

Eastern District of California — Live System (Sacramento)

CRIMINAL DOCKET FOR CASE #: 2:05-cr-00554-LKK-1

Case title: USA v. Sewell

Date Filed: 12/29/2005

Date Terminated: 08/05/2008

Assigned to: Senior Judge Lawrence K. Karlton

Appeals court case number: '08-10363'

Defendant (1)

Harvey L. Sewell

TERMINATED: 08/05/2008 represented by Hayes H. Gable, III

Law Office of Hayes H. Gable, III

428 J Street, Suite 354

Sacramento, CA 95814

(916) 446-3331

Fax: (916) 447-2988

Email: hhgable@pacbell.net

TERMINATED: 08/05/2008

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Designation: CJA Appointment

Timothy E. Warriner

Law Office of Timothy E. Warriner

813 6th Street

Suite 450

Sacramento, CA 95814

(916) 443-7141

Fax: (916) 441-0970

Email: tew@warrinerlaw.com

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Alexandra Paradis Negin

Federal Public Defender's Office

801 I Street

3rd Floor

Sacramento, CA 95818

916-498-5700

Email: lexi_negin@fd.org

TERMINATED: 12/19/2006

Mark Joseph Reichel

Mark Reichel, Attorney at Law

455 Capitol Mall

Suite 350

Sacramento, CA 95813

(916) 498-9258

Fax: (916) 441-6553

Email: mark@reichellaw.com

TERMINATED: 07/11/2007

Designation: CJA Appointment

Pending Counts

Disposition

CONSPIRACY TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE AT LEAST 50 GRAMS OF CRACK COCAINE.

(1ssss) The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 300 months on each of Counts 1 through 5, to be served concurrently, for a total term of 300 months. Upon release from imprisonment, the defendant shall be on supervised release for a term of 120 months on Count 1, and terms of 96 months on each of Counts 2 through 5, all to be served concurrently for a total term of 120 months. The Court recommends that the defendant be incarcerated in a California facility, but only insofar as this accords with security classification and space availability. $500 Special Assessment, fine waived. Appeal rights given. DISTRIBUTION OF AT LEAST 5 GRAMS OF CRACK COCAINE (2ssss-5ssss) The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 300 months on each of Counts 1 through 5, to be served concurrently, for a total term of 300 months. Upon release from imprisonment, the defendant shall be on supervised release for a term of 120 months on Count 1, and terms of 96 months on each of Counts 2 through 5, all to be served concurrently for a total term of 120 months. The Court recommends that the defendant be incarcerated in a California facility, but only insofar as this accords with security classification and space availability. $500 Special Assessment, fine waived. Appeal rights given. Highest Offense Level (Opening) Felony Terminated Counts Disposition POSSESSION WITH INTENT TO DISTRIBUTE AS LEAST 5 GRAMS OF COCAINE BASE (1) DISMISSED DISTRIBUTION OF COCAINE BASE (1s) DISMISSED DISTRIBUTION OF AT LEAST 5 GRAMS OF COCAINE BASE (1ss) DISMISSED CONSPIRACY TO DISTRIBUTE AT LEAST 5 GRAMS OF COCAINE BASE (1sss) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE METHAMPHETAMINE (2) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE AT LEAST 5 GRAMS OF COCAINE BASE (2s) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE AT LEAST 5 GRAMS OF COCAINE BASE (2ss) DISMISSED DISTRIBUTION OF AT LEAST 5 GRAMS OF COCAINE BASE (2sss-4sss) DISMISSED FELON IN POSSESSION OF A FIREARM (3) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE METHAMPHETAMINE (3s) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE METHAMPHETAMINE (3ss) DISMISSED POSSESSION WITH INENT TO DISTRIBUTE COCAINE (4s) DISMISSED POSSESSION WITH INTENT TO DISTRIBUTE COCAINE. (4ss) DISMISSED FELON IN POSSESSION OF A FIREARM (5s) DISMISSED FELON IN POSSESSION OF A FIREARM (5ss) DISMISSED DISTRIBUTION OF COCAINE BASE (6s-7s) DISMISSED DISTRIBUTION OF AT LEAST 5 GRAMS OF COCAINE BASE (6ss) DISMISSED DISTRIBTUION OF AT LEAST 5 GRAMS OF COCAINE BASE (7ss) DISMISSED Highest Offense Level (Terminated)

Felony

Complaints

Disposition

None

Plaintiff

USA represented by Jason Hitt

United States Attorney's Office

501 I Street

Sacramento, CA 95814

(916) 554-2751

Fax: (916) 554-2900

Email: jason.hitt@usdoj.gov

LEAD ATTORNEY

ATTORNEY TO BE NOTICED STATUS RE TRIAL CONFIRMATIONLKKFORTHWITHEXHIBITS USED/ADMITTED:Special Assessment

Date Filed # Docket Text 12/29/2005 1 INDICTMENT as to Harvey L. Sewell (1) count(s) 1, 2, 3. (Brown, T) (Entered: 12/29/2005) 12/29/2005 2 AO 257 (Brown, T) (Entered: 12/29/2005) 01/12/2006 4 MINUTES for proceedings held before Judge Gregory G. Hollows: INITIAL APPEARANCE as to Harvey L. Sewell held on 1/12/2006. Attorney Alexandra Paradis Negin for Harvey L. Sewell added. T4 Start: 01/12/06 Stop: 02/07/06, Added attorney Alexandra Paradis Negin for Harvey L. Sewell. Status Conference set for 2/7/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 01/12/2006) 01/12/2006 5 DETENTION ORDER as to Harvey L. Sewell signed by Judge Gregory G. Hollows on 1/12/06. (Caspar, M) (Entered: 01/13/2006) 01/18/2006 6 Arrest WARRANT RETURNED Executed on 1/12/06 as to Harvey L. Sewell. (Duong, D) (Entered: 01/19/2006) 02/07/2006 7 MINUTES for proceedings held before Judge Lawrence K. Karlton: STATUS CONFERENCE as to defendant Harvey L. Sewell held on 2/7/2006. The parties stipulate to a Motion briefing schedule as follows: Motion due 03/07/2006; Responses due by 3/28/2006; Replies due by 4/4/2006. Motion Hearing set for 4/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. ***Excludable started as to Harvey L. Sewell: Excludable T4 Start: 02/07/2006 Stop: 03/07/2006. Government Counsel Jason Hitt present. Defense Counsel Alexandra Paradis Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/07/2006) 03/07/2006 8 MOTION to SUPPRESS Evidence by Harvey L. Sewell. Motion Hearing set for 4/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit Police Reports) (Negin, Alexandra) (Entered: 03/07/2006) 03/30/2006 9 STIPULATION and PROPOSED ORDER resetting the briefing schedule by USA (Hitt, Jason) Modified on 3/31/2006 (Duong, D). (Entered: 03/30/2006) 04/04/2006 10 STIPULATION AND ORDER signed by Judge Lawrence K. Karlton on April 3, 2006 as to Harvey L. Sewell re 9. The Parties stipulate and agree that the briefing schedule and hearing on defendant's motion to suppress evidence 8 should be reset as follows: Responses due by 4/4/2006. Replies due by 4/7/2006. Motion Hearing set for 4/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Rivas, A) (Entered: 04/04/2006) 04/04/2006 11 MEMORANDUM/RESPONSE in OPPOSITION by USA to dft Sewell's Motion to Suppress Evidence .(Attachments: # 1 Declaration of Deputy Chris Britton; # 2 Exhibit A — Dec. 11, 2005, Report; # 3 Exhibit B — Photos of the Magnum; # 4 Exhibit C — Google Map;# 5 Exhibit D — Google Map II) (Hitt, Jason) Modified on 4/5/2006 (Duong, D). (Entered: 04/04/2006) 04/07/2006 12 REPLY to RESPONSE to 8 MOTION to SUPPRESS Evidence by Harvey L. Sewell (Negin, Alexandra) Modified on 4/10/2006 (Kirkpatrick, S). (Entered: 04/07/2006) 04/11/2006 13 MINUTES for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING as to defendant Harvey L. Sewell held on 4/11/2006 re 8 MOTION to SUPPRESS Evidence filed by Harvey L. Sewell. After argument, the matter is set for an Evidentiary Hearing. Evidentiary Motion Hearing set for 4/27/2006 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt present. Defense Counsel Alexandra Paradis-Negis present. Custody Status: In Custody. Court Reporter: Vicki Britt (Diamond Court Reporters). (Rivas, A) (Entered: 04/12/2006) 04/13/2006 14 SUPERSEDING INDICTMENT as to Harvey L. Sewell (1) count(s) 1s, 2s, 3s, 4s, 5s, 6s-7s. (Duong, D) (Entered: 04/14/2006) 04/14/2006 15 AO 257. (Duong, D) (Entered: 04/14/2006) 04/17/2006 16 MEMORANDUM requesting calendaring for Arraignment on 4/20/06 2:00pm on Superseding Indictment by USA (Hitt, Jason) Modified on 4/18/2006 (Duong, D). (Entered: 04/17/2006) 04/20/2006 17 MINUTES for proceedings held before Judge Dale A. Drozd: ARRAIGNMENT as to Harvey L. Sewell (1) Count 1s, 2s, 3s, 4s, 5s, 6s-7s held on 4/20/2006. Advised rights/charges. NOT GUILTY PLEA ENTERED and request jury trial. Evidentiary hearing on 4/27/06 at 9:15 am re motion to suppress before the Honorable Lawrence K. Karlton confirmed. Dft previously ordered detained. Government Counsel Ellen Endrizzi for Jason Hitt present. Defense Counsel Alexandra Negin present. Custody Status: in custody. Court Reporter/CD Number: Casey Forester/1. (Buzo, P) (Entered: 04/20/2006) 04/25/2006 18 MOTION to Reset the Hearing Date on Defendant's Motion to Suppress Evidence by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 04/25/2006) 04/25/2006 19 PROPOSED ORDER Granting the Government's Motion to Reset Hearing Date by USA as to Harvey L. Sewell (Hitt, Jason) (Entered: 04/25/2006) 04/26/2006 20 ORDER signed by Judge Lawrence K. Karlton on April 25, 2006 as to Harvey L. Sewell re 8 MOTION to SUPPRESS Evidence. The government's motion to reset the evidentiary hearing is GRANTED. The evidentiary hearing currently set for 04/27/2006 is VACATED. Evidentiary Hearing set for 5/18/2006 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Rivas, A) (Entered: 04/26/2006) 05/18/2006 21 MINUTES for proceedings held before Judge Lawrence K. Karlton: EVIDENTIARY HEARING re 8 MOTION to SUPPRESS Evidence as to Harvey L. Sewell held on 5/18/2006. Witnesses: Matt Deaux, Raymond Roberts and Christopher Britton, sworn/testified. Exhibits Admitted: Goverment's Exhibits: 1, 2, 4, 5, 6, 7, 8, 11, 12, 13, 14, Defense Exhibits: A, B, C. For the reasons stated on the record in open court, the Motion to Supress is GRANTED. Status Conference set for 5/31/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (All exhibits returned to counsel at the conclusion of the hearing). Government Counsel Jason Hitt present. Defense Counsel Alexandra Paradis- Negin present. Custody Status: In Custody. Court Reporter: Vicki Britt (Diamond Court Reporters). (Rivas, A) (Entered: 05/18/2006) 05/18/2006 22 PROPOSED ORDER to Exclude Time pursuant to the Speedy Trial Act by Harvey L. Sewell (Negin, Alexandra) (Entered: 05/18/2006) 05/18/2006 23 RECEIPT OF EXHIBITS used during Evidentiary Hearing. (Rivas, A) (Entered: 05/18/2006) 05/22/2006 24 ORDER signed by Judge Lawrence K. Karlton on May 19, 2006 as to Harvey L. Sewell re 22. Further Status Conference set for 5/31/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. ***Excludable started as to Harvey L. Sewell: Excludable T4 Start: 05/18/2006 Stop: 05/31/2006. (Rivas, A) (Entered: 05/22/2006) 05/31/2006 25 MINUTES for proceedings held before Judge Lawrence K. Karlton: STATUS CONFERENCE as to defendant Harvey L. Sewell held on 5/31/2006. The government represents that there is new case law re rental cars and standing that is relevant to the issues dealt in the motion to suppress. The Court VACATED its previous ruling on the Motion to Suppress 8, and will take the matter under submission pending further briefing. The parties stipulate to a briefing schedule and hearing re the Government's Motion to Reconsider: Motion due by 06/13/2006, Response due by 06/27/2006, Reply due by 07/04/2006. Motion Hearing set for 7/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Matter is set for Trial: Trial Confirmation Hearing set for 7/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 7/25/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. AUSA to prepare a formal order. Time continues to be excluded due to pending motions. ***Excludable started as to Harvey L. Sewell: Excludable E. Start: 05/31/2006 Stop: 07/11/2006. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/31/2006) 06/13/2006 26 NOTICE of Motion to Reconsider and Motion to Reconsider Court's May 18, 2006, Ruling by USA as to Harvey L. Sewell (Hitt, Jason) (Entered: 06/13/2006) 06/13/2006 27 MOTION for RECONSIDERATION of Court's May 18, 2006, Ruling by USA as to Harvey L. Sewell. Motion Hearing set for 7/11/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit A — Enterprise Rent-A-Car Computer Printout of Rental. Agreement Activity# 2 Exhibit B — Enterprise Rent-A-Car Rental Agreement with Jacqueline Simon) (Hitt, Jason) (Entered: 06/13/2006) 06/21/2006 28 MEMORANDUM/RESPONSE in OPPOSITION by Harvey L. Sewell to Government Motion to Reconsider (Attachments: # 1 Declaration of Jacqueline Simon) (Negin, Alexandra) Modified on 6/22/2006 (Duong, D). (Entered: 06/21/2006) 06/30/2006 29 REPLY to RESPONSE to MOTION for Reconsideration by USA as to Harvey L. Sewell. (Hitt, Jason) Modified on 7/3/2006 (Duong, D). (Entered: 06/30/2006) 07/10/2006 30 MINUTE ORDER: The Hearing on the Government's MOTION for RECONSIDERATION 27 and the Trial Confirmation Hearing, as to defendant Harvey Sewell, currently scheduled for 07/11/2006 is hereby CONTINUED TO 7/18/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Rivas, A) (Entered: 07/10/2006) 07/11/2006 31 ORDER signed by Judge Lawrence K. Karlton on July 11, 2006 as to Harvey L. Sewell. Trial Briefs, exhibit and witness list due five court days prior to trial. Proposed Jury Instructions, Proposed Verdict Form and Voir Dire Questions due seven court days prior to trial. Motions in Limine, if any, due seven court days prior to trial. Any opposition briefs to the motions in limine shall be filed five court days prior to trial. (Rivas, A) (Entered: 07/11/2006) 07/14/2006 32 SUPPLEMENTAL BRIEF in SUPPORT of Motion for Reconsideration 27 by USA as to Harvey L. Sewell. (Hitt, Jason) Modified on 7/17/2006 (Duong, D). (Entered: 07/14/2006) 07/14/2006 33 PROPOSED JURY INSTRUCTIONS by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 07/14/2006) 07/14/2006 34 PROPOSED VERDICT submitted by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 07/14/2006) 07/14/2006 35 PROPOSED VOIR DIRE by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 07/14/2006) 07/14/2006 36 MOTION IN LIMINE to Exclude Evidence by Harvey L. Sewell. Motion Hearing set for 7/18/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Negin, Alexandra) (Entered: 07/14/2006) 07/18/2006 37 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:MOTION HEARING as to defendant Harvey L. Sewell held on 7/18/2006 re 8 MOTION to SUPPRESS Evidence filed by Harvey L. Sewell and 27 MOTION for RECONSIDERATION of Court's May 18, 2006 Ruling filed by USA. After oral argument, the matter is set for an Evidentiary hearing and the Jury Trial currently scheduled to begin 07/25/2006 is VACATED. Evidentiary Hearing set for 8/1/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 07/19/2006) 07/20/2006 38 SECOND SUPERSEDING INDICTMENT as to Harvey L. Sewell (1) count(s) 1ss, 2ss, 3ss, 4ss, 5ss, 6ss, 7ss. (Duong, D) (Entered: 07/21/2006) 07/20/2006 39 A0257 (Sealed) as to Harvey L. Sewell.(Duong, D) (Entered: 07/21/2006) 07/21/2006 40 MEMORANDUM by USA as to Harvey L. Sewell calendering Arraignment Date of 7/24/06 on Second Superseding Indictment (Hitt, Jason) Modified on 7/24/2006 (Duong, D). (Entered: 07/21/2006) 07/24/2006 41 MINUTES for proceedings held before Judge Kimberly J. Mueller: ARRAIGNMENT as to Harvey L. Sewell (1) Count 1ss, 2ss, 3ss, 4ss, 5ss, 6ss, 7ss held on 7/24/2006. NOT GUILTY PLEA ENTERED. Dates previously set before Judge Karlton. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: in custody. Court Reporter/CD Number: Casey Schultz, ECRO. (Farnsworth, C) (Entered: 07/24/2006) 08/01/2006 42 MINUTES for proceedings held before Judge Lawrence K. Karlton: EVIDENTIARY HEARING as to defendant Harvey L. Sewell held on 8/1/2006. Defense witness Jacqueline Simon, sworn/testified on direct, cross, re-direct, re-cross. Nothing futher. Parties rest. Motion to Suppress 8 GRANTED. Trial Confirmation Hearing set for 9/19/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 10/3/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Motion 27 TERMINATED. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Rivas, A). (Entered: 08/01/2006) 09/19/2006 43 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 9/19/2006. The parties indicate they are not ready to proceed with trial and request the trial be continued. Trial Confirmation Hearing set for 11/14/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial is CONTINUED TO 12/5/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Defense counsel to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 09/19/2006 Stop: 12/05/2006. Government Counsel Ellen Endrizzi (for Jason Hitt) present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 09/19/2006) 11/09/2006 45 INDICTMENT as to Harvey L. Sewell (1) count(s) 1sss, 2sss- 4sss, Audrey Beasley (2) count(s) 1, 5-7. (Duong, D) (Entered: 11/13/2006) 11/09/2006 46 A0257 (Sealed) as to Harvey L. Sewell, Audrey Beasley (Attachments: # 1 A0257) (Duong, D) (Entered: 11/13/2006) 11/11/2006 44 PROPOSED ORDER to Exclude Time Pursuant to Speedy Trial Act by Harvey L. Sewell. (Negin. Alexandra) (Entered: 11/11/2006) 11/13/2006 48 SUMMARY ORDER signed by Judge Lawrence K. Karlton on November 13, 2006 as to defenedant Harvey L. Sewell re 44. Trial Confirmation Hearing set for 11/14/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 12/5/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 09/19/2006 Stop: 12/05/2006. (Rivas, A) (Entered: 11/13/2006) 11/14/2006 49 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:TRIAL CONFIRMATION HEARING and ARRAIGNMENT as to Harvey L. Sewell (1) Counts 1sss, 2sss-4sss held on 11/14/2006. Defendant was arraigned, waived right to a full reading. NOT GUILTY PLEA ENTERED as to all counts. The Court's order setting forth timeline for filing trial documents was handed out in court. Jury Trial was CONFIRMED for 12/5/2006 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 11/14/2006) 11/14/2006 50 ORDER signed by Judge Lawrence K. Karlton on November 14, 2006 as to defendant Harvey L. Sewell re due dates for trial documents. (Rivas, A) (Entered: 11/14/2006) 11/27/2006 58 MINUTE ORDER by CRD (Text Only): The parties are hereby advised that defendant Harvey Sewell is now set for status on 11/28/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Ordered by Judge Lawrence K. Karlton on November 27, 2006. (Rivas, A) (Entered: 11/27/2006) 11/28/2006 59 MINUTES for STATUS CONFERENCE proceedings as to Harvey L. Sewell held before Judge Lawrence K. Karlton on 11/28/2006. Government moves to sever under 14A; no objections; so ordered. Matter confirmed for trial on 12/5/06 as to defendant Sewell. Motions in limine due today 11/28/06. Trial briefs and objections to motions in limine due on Thursday 11/30/06. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter/CD Number: C. Bodene. (TEXT ONLY) (Caspar, M) (Entered: 11/28/2006) 11/28/2006 61 APPLICATION for WRIT of HABEAS CORPUS AD TESTIFICANDUM re: Alicia Phillips by Harvey L. Sewell, Audrey Beasley (Hitt, Jason) (Entered: 11/28/2006) 11/28/2006 62 ORDER as to Harvey L. Sewell, Audrey Beasley signed by Judge Lawrence K. Karlton on 11/28/06 re 61 that US' application for writ of habeas corpus as to the name of detainee Alicia Phillips is GRANTED. The above named custodian, as well as USM, is hereby ORDERED to produce the named detainee, FORTHWITH, and any further proceedings to be had in this cause, and at the conclusion of said proceedings to return said detainee to the above-named custodian. (Duong, D) (Entered: 11/28/2006) 11/28/2006 63 MOTION IN LIMINE to Exclude Other Crimes Evidence by Harvey L. Sewell. Motion Hearing set for 12/5/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Negin, Alexandra) (Entered: 11/28/2006) 11/28/2006 64 PROPOSED VOIR DIRE by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/28/2006) 11/28/2006 65 PROPOSED VERDICT submitted by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/28/2006) 11/28/2006 66 PROPOSED JURY INSTRUCTIONS by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/28/2006) 11/28/2006 67 NOTICE of INFORMATION CHARGING PRIOR CONVICTION as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/28/2006) 11/29/2006 68 PROPOSED VOIR DIRE by Harvey L. Sewell. (Negin, Alexandra) (Entered: 11/29/2006) 11/29/2006 69 MOTION for EXTENSION of TIME to file Proposed Voir Dire by Harvey L. Sewell. Motion Hearing set for 12/5/2006 at 09:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Negin, Alexandra) (Entered: 11/29/2006) 11/29/2006 70 ORDER signed by Judge Lawrence K. Karlton on November 29, 2006 as to Harvey L. Sewell re 69 MOTION for EXTENSION of TIME to file Proposed Voir Dire. The defendant is hereby given leave to file the proposed voir dire questions. (Rivas, A) (Entered: 11/29/2006) 11/30/2006 71 REQUEST for Change of Plea for Defendant Audrey Beasley on Friday, December 1, 2006 by USA as to Harvey L. Sewell, Audrey Beasley (Hitt, Jason) (Entered: 11/30/2006) 11/30/2006 72 EXHIBIT LIST by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/30/2006) 11/30/2006 73 WITNESS LIST by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/30/2006) 11/30/2006 74 TRIAL BRIEF by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 11/30/2006) 11/30/2006 78 TRANSCRIPT of Evidentiary as to Harvey L. Sewell held on 8/1/06 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Duong, D) (Entered: 12/01/2006) 12/03/2006 79 STATEMENT of NON-OPPOSITION by plt to MOTION to Exclude Certain 404(b) Evidence in its Case-in-Chief by dft H. Sewell, Jr 63. (Hitt, Jason) Modified on 12/5/2006 (Duong, D). (Entered: 12/03/2006) 12/03/2006 80 OBJECTION by USA to Portions of Defendant's Proposed Voir Dire 68. (Hitt, Jason) Modified on 12/5/2006 (Duong, D). (Entered: 12/03/2006) 12/04/2006 83 MOTION to DISMISS Count One of Third Superseding Indictment and to Preclude Government from calling certain Witnesses by Harvey L. Sewell. Motion Hearing set for 12/5/2006 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Negin, Alexandra) Modified on 12/5/2006 (Mena-Sanchez, L). (Entered: 12/04/2006) 12/04/2006 84 OPPOSITION by USA as to Harvey L. Sewell, Audrey Beasley to Defendant's Motion to Dismiss the Conspiracy Count and Exclude Certain Witnesses (Hitt, Jason) Modified on 12/5/2006 (Mena-Sanchez, L). (Entered: 12/04/2006) 12/05/2006 85 MINUTES for MOTION HEARING proceedings as to Harvey L. Sewell held before Judge Lawrence K. Karlton on 12/5/2006: Defendant's 83 Motion to Dismiss Count One and to Preclude Witnesses is DENIED. Jury Trial set for 2/13/2007 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Trial Confirmation Hearing set for 1/23/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. T4 Start: 12/5/06 Stop: 1/23/07. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin present. Custody Status: In Custody. Court Reporter/CD Number: C. Bodene. (Text Only) (Caspar, M) (Entered: 12/05/2006) 12/13/2006 86 MEMORANDUM requesting a Hearing on Substitution of Counsel be placed on calendar on 12/19/06 9:30am by counsel for dft Harvey L. Sewell. (Negin, Alexandra) Modified on 12/14/2006 (Duong, D). (Entered: 12/13/2006) 12/19/2006 87 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton :STATUS CONFERENCE as to defendant Harvey L. Sewell held on 12/19/2006. Defendant requests new counsel. Ms. Negin indicates that the office of the Federal Defenders has contacted CJA panel attorney Mark Reichel, who is prepared to take over. Defendant's request for new counsel is GRANTED. Attorney Mark Joseph Reichel substituted in for defendant Harvey L. Sewell instead of Lexi Negin. Trial Confirmation Hearing is advanced to 1/9/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial date remains the same, set for 02/13/2007 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. AUSA to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 12/19/2006 Stop: 01/09/2007. Government Counsel Jason Hitt present. Defense Counsel Lexi Negin and Mark Reichel present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 12/19/2006) 01/03/2007 88 PROPOSED ORDER Following Status Conference Excluding Time by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 01/03/2007) 01/04/2007 89 SUMMARY ORDER signed by Judge Lawrence K. Karlton on January 4, 2007 as to defendant Harvey L. Sewell re 88. Trial Confirmation Hearing set for 1/9/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 12/19/2006 Stop: 01/09/2007. (Rivas, A) (Entered: 01/04/2007) 01/04/2007 90 LETTER from C. Compton confirmed of CJA 20 Appointment of Attorney Mark Joseph Reichel for dft Harvey L. Sewell signed by Judge Edmund F. Brennan on 12/19/06. (Duong, D) (Entered: 01/05/2007) 01/09/2007 91 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: HEARING as to defendant Harvey L. Sewell held on 1/9/2007. Defense counsel indicates he needs additional time and requests the matter set for further status. The Jury Trial currently scheduled for 02/13/2007 is hereby VACATED. Further Status Conference set for 1/23/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 01/09/2007 Stop: 01/23/2007. Government Counsel Jason Hitt present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 01/09/2007) 01/23/2007 93 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 1/23/2007. Change of Plea Hearing set for 2/6/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Defense counsel to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 01/23/2007 Stop: 02/06/2007. Government Counsel Michael Beckwith (for Jason Hitt) present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 01/23/2007) 02/01/2007 96 PROPOSED ORDER after hearing to set hearing for further status by Harvey L. Sewell as to Harvey L. Sewell, Audrey Beasley. (Reichel, Mark) Modified on 2/2/2007 (Carlos, K). Modified on 2/2/2007 (Carlos, K). (Entered: 02/01/2007) 02/01/2007 97 STIPULATION and PROPOSED ORDER by Harvey L. Seweil. (Reichel, Mark) (Entered: 02/01/2007) 02/01/2007 98 SUMMARY ORDER signed by Judge Lawrence K. Karlton on February 1, 2007 as to defendant Harvey L. Sewell re 96. Further Status Conference set for 2/6/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 01/23/2007 Stop: 02/06/2007. (Rivas, A) (Entered: 02/01/2007) 02/01/2007 99 STIPULATION AND ORDER signed by Judge Lawrence K. Karlton on February 1, 2007 as to defendant Harvey L. Sewell re 97. The Status Conference currently set for 02/06/2007 is hereby CONTINUED TO 2/22/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 02/06/2007 Stop: 02/22/2007. (Rivas, A) (Entered: 02/01/2007) 02/22/2007 100 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 2/22/2007. Trial Confirmation Hearing set for 5/30/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 6/19/2007 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. AUSA to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 02/22/2007 Stop: 06/19/2007. Government Counsel Jason Hitt present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter. (Rivas, A) (Entered: 02/22/2007) 04/12/2007 101 STIPULATION and PROPOSED ORDER Continuing the Judgment and Sentencing by USA. (Hitt, Jason) (Entered: 04/12/2007) 05/30/2007 103 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 5/30/2007. Jury Trial is CONFIRMED for 6/19/2007 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The Court's order setting forth the timeline for filing trial documents was handed out in court. Government Counsel Jason Hitt present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/30/2007) 05/30/2007 104 ORDER as to Harvey L. Sewell signed by Judge Lawrence K. Karlton on May 30, 2007 re due dates for trial documents. (Rivas, A) (Entered: 05/30/2007) 05/31/2007 105 FOURTH SUPERSEDING INDICTMENT as to Harvey L. Sewell (1) count(s) 1ssss, 2ssss-5ssss. (Duong, D) (Entered: 06/01/2007) 05/31/2007 106 AO257 (Sealed) as to Harvey L. Sewell. (Duong, D) (Entered: 06/01/2007) 06/01/2007 107 NOTICE of Request for Arraignment Caledaring on Fourth Superseding Indictment by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/01/2007) 06/04/2007 108 MINUTES for ARRAIGNMENT proceedings as to Harvey L. Sewell held before Judge Kimberly J. Mueller on 6/4/2007: Rights given. Charges reviewed. Defendant waives further reading of the Indictment. NOT GUILTY PLEA and request for jury trial ENTERED. Jury trial already set before Judge Karlton. Government Counsel Jason Hitt present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter/CD Number: 1 of 1. (Text Only) (Caspar, M) (Entered: 06/05/2007) 06/04/2007 Shackling Status F as to Harvey L. Sewell. (Caspar, M) (Entered: 06/05/2007) 06/05/2007 109 NOTICE of INFORMATION CHARGING PRIOR CONVICTION as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/05/2007) 06/08/2007 110 PROPOSED JURY INSTRUCTIONS by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/08/2007) 06/08/2007 111 PROPOSED VOIR DIRE by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/08/2007) 06/08/2007 112 NOTICE of Intention to Impeach Using Prior Convictions by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/08/2007) 06/12/2007 113 TRIAL BRIEF by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/12/2007) 06/12/2007 114 EXHIBIT LIST by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/12/2007) 06/12/2007 115 WITNESS LIST by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/12/2007) 06/14/2007 117 PROPOSED VERDICT submitted by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/14/2007) 06/14/2007 118 PROPOSED JURY INSTRUCTIONS by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 06/14/2007) 06/15/2007 119 AMENDED EXHIBIT LIST by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) Modified on 6/19/2007 (Duong, D). (Entered: 06/15/2007) 06/17/2007 120 MOTION to DISMISS and or not proceed to trial on the Fourth Superseding Indictment: Count 1 and 5 of 4th Superseding Indictment by Harvey L. Sewell as to Harvey L. Sewell. (Reichel, Mark) Modified on 6/19/2007 (Duong, D). (Entered: 06/17/2007) 06/17/2007 121 MOTION for DISCOVERY of All Proffer Sessions Between Government Witnesses, Their Counsel and the Government by Harvey L. Sewell as to Harvey L. Sewell. (Reichel, Mark) Modified on 6/19/2007 (Duong, D). (Entered: 06/17/2007) 06/17/2007 122 MOTION for DISCOVERY of codefendant PSR by Harvey L. Sewell as to Harvey L. Sewell, Audrey Beasley. (Reichel, Mark) Modified on 6/19/2007 (Duong, D). (Entered: 06/17/2007) 06/17/2007 123 MOTION to PRECLUDE Evidence Of Other Conspiracy with anyone other than co-dft Alicia Beasley by Harvey L. Sewell as to Harvey L. Sewell. (Reichel, Mark) Modified on 6/19/2007 (Duong, D). (Entered: 06/17/2007) 06/17/2007 124 MEMORANDUM requesting a hearing re Issue of dft's representation by current counsel for trial by Harvey L. Sewell as to Harvey L. Sewell. (Reichel, Mark) Modified on 6/19/2007 (Duong, D). (Entered: 06/17/2007) 06/19/2007 125 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 6/19/2007. Defendant requests to substitute counsel. The Court grants the defendant's request, and Attorney Mark Reichel is relieved as counsel of record. The Jury Trial scheduled to begin 06/20/2007 is hereby VACATED. Mr. Reichel is instructed to contact the Office of the Federal Defender in order to secure new counsel for defendant. Mr. Reichel is instructed to deliver all discovery documents forthwith to new counsel. Status Conference set for 6/26/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. AUSA to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 06/19/2007 Stop: 06/26/2007. Government Counsel Jason Hitt present. Defense Counsel Mark Reichel present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 06/19/2007) 06/26/2007 126 PROPOSED ORDER Vacating the Trial Date and Ordering Further Status Conference and Excluding Time by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 06/26/2007) 06/26/2007 127 PROPOSED ORDER Following Status Conference Excluding Time by USA as to Harvey L. Sewell. (Hitt, Jason) (Entered: 06/26/2007) 06/26/2007 128 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 6/26/2007. Further Status Conference set for 7/31/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. AUSA to prepare a formal order. **Excludable started as to Harvey L. Sewell, Audrey Beasley: Excludable T4 Start: 06/26/2007 Stop: 07/31/2007. Government Counsel Jason Hitt present. Defense Counsel Hayes Gable present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 06/27/2007) 06/28/2007 129 SUMMARY ORDER signed by Judge Lawrence K. Karlton on June 28, 2007 as to Harvey L. Sewell re 126. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 06/19/2007 Stop: 06/26/2007. (Rivas, A) (Entered: 06/28/2007) 06/28/2007 130 SUMMARY ORDER signed by Judge Lawrence K. Karlton on June 28, 2007 as to defendant Harvey L. Sewell re 127. Further Status Conference set for 7/31/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 06/26/2007 Stop: 07/31/2007. (Rivas, A) (Entered: 06/28/2007) 07/11/2007 131 CJA 20 as to defendant Harvey L. Sewell: (Appointment of Counsel) Hayes H. Gable. (Marciel, M) (Entered: 07/12/2007) 07/31/2007 132 PROPOSED ORDER After Hearing by Harvey L. Sewell. (Gable, Hayes) (Entered: 07/31/2007) 07/31/2007 133 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 7/31/2007. Further Status Conference set for 8/28/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Defense counsel to prepare a formal order. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 07/31/2007 Stop: 08/28/2007. Government Counsel Jason Hitt present. Defense Counsel Hayes Gable present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 08/01/2007) 08/08/2007 134 SUMMARY ORDER signed by Judge Lawrence K. Karlton on August 7, 2007 as to defendant Harvey L. Sewell re 132. Further Status Conference set for 8/28/2007 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 07/31/2007 Stop: 08/28/2007. (Rivas, A) (Entered: 08/08/2007) 08/28/2007 136 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:STATUS CONFERENCE as to defendant Harvey L. Sewell held on 8/28/2007. Trial Confirmation Hearing set for 1/15/2008 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 1/29/2008 at 10:30 AM in Courtroom 4 () before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 08/28/2007 Stop: 01/29/2008. AUSA to prepare a formal order. Government Counsel Jason Hitt present. Defense Counsel Hayes Gable present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 08/28/2007) 12/27/2007 139 PROPOSED ORDER Following Hearing and Excluding Time by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 12/27/2007) 01/03/2008 140 SUMMARY ORDER signed by Judge Lawrence K. Karlton on January 2, 2008 as to defendant Harvey L. Sewell re 139. Trial Confirmation Hearing set for 1/15/2008 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 1/29/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. **Excludable started as to Harvey L. Sewell: Excludable T4 Start: 08/28/2007 Stop: 01/29/2008. (Rivas, A) (Entered: 01/03/2008) 01/15/2008 141 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton:TRIAL CONFIRMATION HEARING as to defendant Harvey L. Sewell held on 1/15/2008. The Jury Trial is CONFIMRED for 1/29/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The Court's order setting forth the timeline for filing trial documents was handed out in court. Government Counsel Jason Hitt present. Defense Counsel Hayes Gable present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 01/16/2008) 01/15/2008 142 ORDER signed by Judge Lawrence K. Karlton on January 15, 2008 as to Harvey L. Sewell re due dates for trial documents. (Rivas, A) (Entered: 01/16/2008) 01/16/2008 143 MOTION IN LIMINE To Exclude Evidence by Harvey L. Sewell.Motion Hearing set for 1/29/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Gable, Hayes) (Entered: 01/16/2008) 01/17/2008 144 PROPOSED JURY INSTRUCTIONS by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 01/17/2008) 01/17/2008 145 PROPOSED VOIR DIRE by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 01/17/2008) 01/17/2008 146 NOTICE of Intent to Impeach Using Prior Convictions — Rule 609 by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 01/17/2008) 01/17/2008 147 PROPOSED VERDICT submitted by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 01/17/2008) 01/22/2008 148 MEMORANDUM/RESPONSE in OPPOSITION by USA as to Harvey L. Sewell to Defendant's 143 Motion to Exclude Evidence under Rule 404(b). (Hitt, Jason) Modified on 1/23/2008 (Duong, D). (Entered: 01/22/2008) 01/22/2008 149 TRIAL BRIEF by USA as to Harvey L. Sewell. (Hitt, Jason) Modified on 1/23/2008 (Duong, D). (Entered: 01/22/2008) 01/22/2008 150 EXHIBIT LIST by USA as to Harvey L. Sewell. (Hitt, Jason) Modified on 1/23/2008 (Duong, D). (Entered: 01/22/2008) 01/22/2008 151 WITNESS LIST by USA as to Harvey L. Sewell. (Hitt, Jason) Modified on 1/23/2008 (Duong, D). (Entered: 01/22/2008) 01/23/2008 152 APPLICATION for WRIT of HABEAS CORPUS AD TESTIFICANDUM for Alicia Phillips by Harvey L. Sewell, Audrey Beasley (Hitt, Jason) (Entered: 01/23/2008) 01/23/2008 153 ORDER AND WRIT of HABEAS CORPUS AD TESTIFICANDUM signed by Senior Judge Lawrence K. Karlton on 1/23/2008 ORDERING USM to produce , Alicia Phillips X-Ref 1597993 to USCA EDCA Sacramento, CA for trial testimony on 1/29/2008 at 10:30 AM before LKK; WRIT ISSUED. (Reader, L) (cc: SCJ, USM, A. Phillips) Modified on 1/24/2008 (Reader, L). (Entered: 01/23/2008) 01/29/2008 154 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL/JURY SELECTION — day 1 as to Harvey L. Sewell held on 1/29/2008. Jury Selected and sworn. Court in recess Jury Trial set for 1/30/2008 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Attachments: # 1 Main Document) (Rivas, A) (Entered: 01/30/2008) 01/30/2008 155 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton:JURY TRIAL — day 2 as to Harvey L. Sewell held on 1/30/2008. Witnesses: Yogesh Waland and Sergeant Jose Whitfield. EXHIBITS ADMITTED: Government Exhibits 1, 1A, 1B, 2A, 2B, 6A, 6B, 6C, 6D, 6E, 6F, 6G, 6H, 61, 6J, 7, 15, 16, 17, 21, 22, 23, 24, 25, 29, 31, 32, 33, 34. Defense Exhibit A. Court in recess until 1/31/2008 at 01:15 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene.(Rivas, A) (Entered: 01/30/2008) 01/31/2008 156 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL — Day 3 as to Harvey L. Sewell held on 1/31/2008. Witness: Jose Whitfield. EXHIBITS USED/ADMITTED: Government Exhibits 1A, 1C, 2A, 2B, 3, 3A, 3B, 3C,4, 4A, 4B, 5, 5A, 5B, 6F, 6G, 6K, 8, 13, 14, 15, 28, 34. Defense Exhibits A, B4, B5, B6, B7, B8, C. Court in recess until 2/1/2008 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/01/2008) 02/01/2008 157 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton:JURY TRIAL — Day 4 as to Harvey L. Sewell held on 2/1/2008. Witnesses: Jose Whitfield, Jacqueline Simon, Joel Duncan. EXHIBITS USED/ADMITTED: Government Exhibits 1, 1B, 1C, 2, 2B, 2C, 3, 3A, 3C, 4, 4B, 5, 5B, 14, 15, 30, 36, 37. Defense Exhibit A, B5, B7, B9, C. Court in recess until 2/5/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/01/2008) 02/05/2008 158 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL — Day 5 as to defendant Harvey L. Sewell held on 2/5/2008. Witnesses: Tim Ruiz, Justice Campbell, Audrey Beasley. EXHIBITS USED/ADMITTED: Government Exhibits 3B, 8, 9, 10, 15. Defense Exhibit A. Court in recess until 2/6/2008 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/06/2008) 02/06/2008 159 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL — Day 6 as to defendant Harvey L. Sewell held on 2/6/2008. Witnesses: Audrey Beasley, Larry Eugene Lee, Alicia Philips. Government Exhibits 1A, 2A, 2B, 6F, 9, 10, 32. Defense Exhibits A, C. Court in recess until 2/7/2008 at 09:15 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/07/2008) 02/07/2008 160 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL — day 7 as to Harvey L. Sewell held on 2/7/2008. Witneeses: Yogesh Waland, James Minge, Erika Joiner, Charles Gillespie. EXHIBITS USED/ADMITTED: Government Exhibits 15, 26, 27, 31, 35, 38, 39, 40. Defense Exhibits A, B1, E1, E2, E3, E4, E5, E6. Government rests. Defense rests. Court in recess until for 2/12/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene.(Rivas, A) (Entered: 02/11/2008) 02/12/2008 161 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL — day 8 as to Harvey L. Sewell held on 2/12/2008. Closing Statements. Jury Instructed. Jury begins deliberating. Court in recess until 2/13/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes H. Gable, III present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/13/2008) 02/12/2008 164 JURY NOTES time: 4:05 as to Harvey L. Sewell (Reader, L) (Entered: 02/13/2008) 02/12/2008 165 WITNESS and EXHIBIT RECORD as to Harvey L. Sewell. (Reader, L) (Entered: 02/13/2008) 02/12/2008 166 JURY INSTRUCTIONS as to Harvey L. Sewell (Reader, L) (Entered: 02/13/2008) 02/13/2008 162 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: JURY TRIAL-Day 9 as to defendant Harvey L. Sewell held on 2/13/2008. Jury continues deliberating. Court in session regarding Jury Note #2: The Jury has reached a unanimous verdict. Verdict is read: The Jury finds the defendant, Harvey Lee Sewell, Jr., GUILTY as to Counts 1, 2, 3, 4 and 5 of the 4TH Superseding Indictment. Matter is referred to Probation for the preparation of a presentence report. Hearing on the matter of Judgment and Sentencing is set for 4/29/2008 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Rivas, A) (Entered: 02/13/2008) 02/13/2008 163 SCHEDULE FOR DISCLOSURE OF PSR as to defendant Harvey L. Sewell. (Rivas, A) (Entered: 02/13/2008) 02/13/2008 167 JURY NOTES that the Jury has reached a unanimous verdict as to Harvey L. Sewell. (Duong, D) (Entered: 02/14/2008) 02/13/2008 168 VERDICT as to Harvey L. Sewell (1) Guilty on Count 1ssss,2ssss-5ssss Harvey L. Sewell. (Duong, D) (Entered: 02/14/2008) 02/20/2008 169 RECEIPT for Government's Trial Exhibits. (Duong, D) (Entered: 02/21/2008) 03/19/2008 171 MEMORANDUM of HEARING as to defendant Harvey L. Sewell: Judgment and Sentencing CONTINUED to 5/28/2008 at 09:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Motion for Correction of Pre-Sentence Report due 5/20/08; Pre-Sentence Report to be filed and disclosed no later than 5/13/08; written Objections due 5/6/08; and Proposed Pre-Sentence Report to be disclosed no later than 4/22/08. (Marciel, M) (Entered: 03/20/2008) 05/01/2008 172 WRIT of HABEAS CORPUS RETURNED Executed for Harvey Lee Sewell, Jr. on 2/13/08 as to Harvey L. Sewell. (Duong, D) (Entered: 05/02/2008) 05/08/2008 173 MEMORANDUM continuing Judgment and Sentencing by Harvey L. Sewell. (Gable, Hayes) Modified on 5/9/2008 (Marciel, M). (Entered: 05/08/2008) 06/19/2008 175 MEMORANDUM by Harvey L. Sewell in to Continue J S. (Gable, Hayes) (Entered: 06/19/2008) 07/01/2008 176 SENTENCING MEMORANDUM by Harvey L. Sewell. (Gable, Hayes) (Entered: 07/01/2008) 07/03/2008 177 MEMORANDUM by Harvey L. Sewell as to Harvey L. Sewell, Audrey Beasley TO CONTINUE JUDGEMENT AND SENTENCING. (Gable, Hayes) Modified on 7/8/2008 (Kaminski, H). (Entered: 07/03/2008) 07/03/2008 178 SENTENCING MEMORANDUM by USA as to Harvey L. Sewell, Audrey Beasley. (Hitt, Jason) (Entered: 07/03/2008) 07/21/2008 179 MEMORANDUM by USA in Continuing the Judgment and Sentencing of Defendant Audrey BEASLEY to 8/26/08. (Hitt, Jason) Modified on 7/21/2008 (Duong, D). (Entered: 07/21/2008) 08/05/2008 180 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: SENTENCING held on 8/5/2008 for defendant Harvey L. Sewell (1) as to Count 1ssss, 2ssss-5ssss, of the Fourth Superseding Indictment: The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 300 months on each of Counts 1 through 5, to be served concurrently, for a total term of 300 months. Upon release from imprisonment, the defendant shall be on supervised release for a term of 120 months on Count 1, and terms of 96 months on each of Counts 2 through 5, all to be served concurrently for a total term of 120 months. The Court recommends that the defendant be incarcerated in a California facility, but only insofar as this accords with security classification and space availability. $500 , fine waived. Appeal rights given. Mr. Gables requests to be relieved as counsel and Attorney Timothy Warriner present, seeking appointment for appeal purposes. So ordered. Attorney Hayes Gable is relieved as counsel of record and Mr. Warriner is appointed. DEFENDANT Harvey L. Sewell TERMINATED. Government Counsel Jason Hitt, William Wong present. Defense Counsel Hayes Gable present. Custody Status: In Custody. Court Reporter: C. Bodene. (Rivas, A) Modified on 8/13/2008 (Rivas, A). (Entered: 08/11/2008) 08/11/2008 181 JUDGMENT and COMMITMENT as to Harvey L. Sewell signed by Senior Judge Lawrence K. Karlton on August 11, 2008. (Rivas, A) (Entered: 08/11/2008) 08/12/2008 182 NOTICE of APPEAL by Harvey L. Sewell. Attorney Warriner, Timothy E. added. (Warriner, Timothy) (Entered: 08/12/2008) 08/18/2008 183 APPEAL PROCESSED to Ninth Circuit re 182 Notice of Appeal — CR filed by Harvey L. Sewell. Filed dates for Notice of Appeal *8/12/2008*, Complaint *12/29/2005* and Appealed Order / Judgment *8/11/2008*. Court Reporter: *C. Bodene*. *Fee Status: CJA or IFP granted on 8/5/2008* ** (Kastilahn, A) (Entered: 08/18/2008) 08/18/2008 184 CLERK'S NOTICE of DOCKET CORRECTION: Please disregard 183 Appeal Processed to USCA. (Kastilahn, A) (Entered: 08/18/2008) 08/18/2008 185 APPEAL PROCESSED to Ninth Circuit re 182 Notice of Appeal — CR filed by Harvey L. Sewell. Filed dates for Notice of Appeal *8/12/2008*, Complaint *12/29/2005* and Appealed Order / Judgment *8/11/2008*. Court Reporter: *C. Bodene*. *Fee Status: CJA or IFP granted on 8/5/2008* ** (Attachments: # 1 Appeal Notice) (Kastilahn, A) (Entered: 08/18/2008) 08/18/2008 186 MEMORANDUM and ORDER for TIME SCHEDULE re 182 Notice of Appeal — CR filed by Harvey L. Sewell with Date of Appeal or Judgment of *8/12/2008*. Status: *CJA or IFP* *Counsel Appointed* *Dft in Custody* (Attachments: # 1 Order for Time Schedule) (Kastilahn, A) (Entered: 08/18/2008) 08/18/2008 SERVICE BY MAIL: 186 Memorandum and Order for Time Schedule, 185 Appeal Processed to USCA served on USCA. cc: C. Bodene w/copy of docket sheet and Appeal Notice. (Kastilahn, A) Modified on 8/18/2008 (Kastilahn, A). (Entered: 08/18/2008) 08/21/2008 187 USCA CASE NUMBER 08-10363 for 182 Notice of Appeal — CR filed by Harvey L. Sewell. (Kaminski, H) (Entered: 08/22/2008) 08/29/2008 189 TRANSCRIPT REQUEST (Warriner, Timothy) (Entered: 08/29/2008) 11/03/2008 192 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/7/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 193 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 5/31/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 194 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 7/18/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 195 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 9/19/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 196 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 11/14/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 197 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 11/28/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 198 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 12/5/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 199 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 12/19/06, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 200 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/9/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 201 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/23/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 202 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/22/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 203 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 5/30/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 204 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 6/19/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 205 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 6/26/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 206 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 7/31/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 207 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 8/28/07, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 208 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/15/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 209 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/29/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 210 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/30/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 211 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 1/31/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 212 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/1/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 213 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/5/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 214 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/6/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 215 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/7/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 216 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 2/12/08, 2/13/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/03/2008 217 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 8/5/08, before Senior Judge Lawrence K. Karlton, filed by Court Reporter/Transcriber Cathie Bodene, Phone number 916-446-6360 E-mail creporters15@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/2/2009. (Bodene, C) (Entered: 11/03/2008) 11/12/2008 218 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 4/11/08, before Senior Judge Lawrence K. Karlton, filed by Diamond Court Reporters, Phone number 916-498-9288 E- mail dmndcsrs@lanset.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 12/3/2008. Redacted Transcript Deadline set for 12/15/2008. Release of Transcript Restriction set for 2/10/2009. (Diamond Court Reporters,) (Entered: 11/12/2008) 11/12/2008 219 TRANSCRIPT of Proceedings as to Harvey L. Sewell, Audrey Beasley held on 05-18-2006, before Senior Judge Lawrence K. Karlton, filed by Diamond Court Reporters, Phone number 916-498- 9288 E-mail dmndcsrs@lanset.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 12/3/2008. Redacted Transcript Deadline set for 12/15/2008. Release of Transcript Restriction set for 2/10/2009. (Diamond Court Reporters,) (Entered: 11/12/2008) 12/21/2009 220 MEMORANDUM of USCA as to 182 Notice of Appeal. The District Court's Decision is AFFIRMED.(Mena-Sanchez, L) (Entered: 12/21/2009) 01/13/2010 221 MANDATE of USCA as to 182 Notice of Appeal — CR filed by Harvey L. Sewell (Benson, A.) (Entered: 01/13/2010) 03/14/2011 223 MOTION FOR LEAVE to file amended motion 28:2255 by Harvey L. Sewell. (Reader, L) (Entered: 03/15/2011) 03/18/2011 224 MOTION for LEAVE to file Amended 223 Motion pursuant to 28:2255 by Harvey L. Sewell. (Reader, L) Modified on 4/1/2011 (Marciel, M). (Entered: 03/21/2011) 03/18/2011 225 MOTION to VACATE, Set Aside or Correct Sentence under 28 U.S.C. 2255 by Harvey L. Sewell. (Reader, L) [2:11cv809 LKK] (Entered: 03/21/2011) 06/08/2011 227 ORDER signed by Magistrate Judge Edmund F. Brennan on 6/7/2011 GRANTING 224 movant Harvey L. Sewell's motion for leave to file an amended motion 28:2255; movant shall have 60 days from the date of service of this order to file the amended motion. (Reader, L) (Entered: 06/08/2011) 06/08/2011 SERVICE BY MAIL: 227 Order on Motion, served on Harvey L. Sewell (Reader, L) (Entered: 06/08/2011) Sewell Exhibit D359 Fed. Appx. 860, *; 2009 U.S. App. LEXIS 27980, ** UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HARVEY L. SEWELL, Defendant — Appellant. No. 08-10363 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 359 Fed. Appx. 860; 2009 U.S. App. LEXIS 27980 December 2, 2009, Argued and Submitted, San Francisco, California December 21, 2009, Filed NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the Eastern District of California D.C. No. 2:05-CR-00554-LKK. Lawrence K. Karlton, District Judge, Presiding

DISPOSITION: AFFIRMED.

CORE TERMS: plain error, investigator's, prosecutor's, misconduct, crack cocaine, state attorney, questioning, distribute, harmless, grams

COUNSEL: For UNITED STATES OF AMERICA, Plaintiff-Appellee: Jason Hitt, USSAC — OFFICE OF THE U.S. ATTORNEY, Sacramento, CA.

For HARVEY L. SEWELL, Defendant — Appellant: Timothy Edward Warriner, Attorney, Attorney at Law, Sacramento, CA.

JUDGES: Before: B. FLETCHER, THOMAS and N.R SMITH, Circuit Judges.

OPINION

[*861] MEMORANDUM*

FOOTNOTES

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Before: B. FLETCHER, THOMAS and N.R SMITH, Circuit Judges.

Harvey Sewell appeals his jury conviction of one count of conspiracy to distribute and possess with intent to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and five counts of distribution of at least 5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). We affirm. Because the parties are familiar with the facts and procedural history, we will not recount them here.

Sewell contends that the prosecutor's cross-examination of his investigator constituted reversible prosecutorial misconduct. Under controlling [**2] circuit law, a prosecutor commits misconduct when he or she attempts to create an impression on the jury by innuendoes in questions when no supporting evidence exists. See, e.g., United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993); United States v. Blueford, 312 F.3d 962 (9th Cir. 2002).

In this case, because defense counsel only objected as to the questions regarding the investigator's failure to contact Phillip's state attorney, we review all other issues for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 730-36, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Under the plain error standard, relief is not warranted unless there has been: (1) error, (2) that was plain, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004).

Assuming, without deciding that the prosecutor's questioning was improper, we conclude that there was no plain error requiring reversal. The evidence of Sewell's guilt, even discounting the testimony of Phillips, was overwhelming. Therefore, the misconduct did not rise to the level of plain error.

[*862] We review the district [**3] court's evidentiary ruling on the relevancy of the questions regarding the investigator's failure to contact Phillips's state attorney for abuse of discretion. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). Even if we were to find that the district court abused its discretion, we still review to determine whether such an error was harmless. In deciding to overrule the objection, the district court judge also examined the question on Federal Rule of Evidence 403 prejudice grounds. Given the totality of the evidence, any error was harmless. The amount of evidence independent from this questioning that implicated Sewell was substantial. Even if the district court judge had sustained the objection, we conclude it would have been unlikely to have a "substantial effect" on the outcome.

AFFIRMED.