USA v. Geozos

Filing 121

Initial Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
DAVID P. GEOZOS,
Defendant.

Case No. 3:06-cr-082-RRB-JDR
INITIAL RECOMMENDATION TO
DENY DEFENDANT’S MOTION
FOR AN EVIDENTIARY HEARING
AND RECOMMENDING DENIAL
OF DEFENDANT’S 28 U.S.C §
2255 CLAIM ON THE MERITS
Docket 90

Defendant, David P. Geozos filed an amended Motion to Vacate his
sentence seeking relief under 28 U.S.C. § 2255 at Dockets 101 and 102. The
Government filed it’s opposition at Docket 103. Following the Government’s motion
to dismiss, the parties filed briefing on the merits of Defendant’s habeas request.
Defendant filed his opening brief at Docket 113; the Government’s opposition was
filed at Docket 119, and the Defendant’s reply at Docket 120.1
1

It is notable that all of the filings by the defendant in this habeas action are
nearly identical. With the exception of the omission of paragraphs between
pleadings, he has offered nothing new for the court to review regarding his claims
on the merits of his habeas petition since he filed his first amended petition at
Docket 101. His reply does not respond to the Government’s briefing, it only re-

I. Procedural History
The Defendant entered into a plea agreement for one count of felon in
possession of a firearm and ammunition and one count of unlawful possession of a
controlled substance on January 12, 2007.2 Following his entrance into a plea
agreement, Defendant obtained a new attorney. On January 17, 2007, Dan Libbey,
Defendant’s new counsel, filed his entry of appearance.3 Prior to sentencing, Mr.
Libbey filed a motion to continue sentencing and for limited withdrawal as counsel.4
Charles Coe was then appointed to represent the Defendant.5 As a result, Mr. Coe
represented the Defendant at sentencing with the help of Mr. Libbey.6
United States District Court Judge Ralph Beistline held a sentencing
hearing on July 10, 2007. Mr. Coe argued that the Defendant should not be
sentenced under the Armed Career Criminal Act (ACCA) and that the Court had
discretion to depart from the mandatory minimum sentence of 15 years. Judge

states his exact arguments previously presented. Similarly, the Government filed
nearly identical pleadings on the issues regarding the merits.
2

Docket 27, Minutes of the Change of Plea (citing Docket 2, Indictment).

3

Docket 28, Entry of Appearance.

4

Docket 38, Motion for Limited Withdraw [sic] of Counsel and Substitution
and to Continue Sentencing.
5

Docket 43, Notice of Appearance.

6

See Docket 38, Motion for Limited Withdraw of Counsel and Substitution
and to Continue Sentencing.
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Beistline rejected Defendant’s arguments and sentenced Mr. Geozos to 15 years
imprisonment and 5 years of supervised release.7
On July 11, 2007, the Defendant filed his Notice of Appeal.8 The District
Court entered it’s final judgement on July 17, 2007.9 The Court of Appeals for the
Ninth Circuit denied the Defendant’s appeal and affirmed his sentence on August 12,
2008.10 On November 6, 2009, Defendant filed this instant Motion to Vacate under
28 U.S.C. § 2255.11 Defense counsel, Heather Gardner, was assigned to represent
the Defendant on December 1, 2009.
II. Relevant Law
A. 28 U.S.C. § 2255
Defendant files his Motion to Vacate pursuant to 28 U.S.C. § 2255 as
a means to challenge his sentence. The relevant portion of the statute outlines the
burden the Defendant must establish:

7

See Docket 60, Minutes for Imposition of Sentence; and see Docket 79,
Transcript of Proceedings as to David P. Geozos Imposition of Sentence.
8

Docket 61, Notice of Appeal.

9

Docket 62, Judgment in a Criminal Case.

10

Docket 88, Memorandum.

11

The Government filed a motion to dismiss at Docket 106 based on a
statute of limitation claim. The magistrate judge issued a Recommendation that
the motion be denied at Docket 109 and Judge Beistline denied the motion at
Docket 110.
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(a) A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that [1] the sentence was
imposed in violation of the Constitution or laws of the
United States, or [2] that the court was without jurisdiction
to impose such sentence, or [3] that the sentence was in
excess of the maximum authorized by law, or [4] is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or
correct the sentence.
The Defendant argues that his sentence is subject to collateral attack because he
was denied his Sixth and Fourteenth Amendment12 rights to effective assistance of
counsel for his sentencing.
B. Ineffective Assistance of Counsel
The Sixth Amendment to the Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance
of Counsel for his defense.”13

The Sixth Amendment guarantee has two

components. The right to counsel’s undivided loyalty and the right to reasonably
competent counsel.14

12

The Defendant does not elaborate on his Fourteenth Amendment claim
beyond this statement. As such, the magistrate judge addresses only his Sixth
Amendment concerns.
13

U.S. Constitution, Amendment VI.

14

See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980); Wood v. Georgia,
450 U.S. 261, 272 (1981).
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The standard for ineffective assistance of counsel claims comes from
Strickland v. Washington.15

Strickland established a two-prong test where a

defendant must show not only that his attorney’s representation was deficient but
also that the attorney’s representation prejudiced his cause.16 The defendant bears
the burden of establishing that his attorney’s performance was “so deficient that it
fell below an objective standard of reasonableness.”17
With respect to judicial scrutiny of an attorney’s performance, the court
must be “highly deferential” and “every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”18 This means that a defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.”19

15

466 U.S. 688 (1984).

16

Id. at 693.

17

Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002).

18

Strickland at 689.

19

Id.; see also Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001)
(Defendant “bears the heavy burden of proving that counsel’s assistance was
neither reasonable nor the result of sound trial strategy.”).
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In order for a defendant to establish prejudice, he must demonstrate
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.”20 A reasonable probability
is one “sufficient to undermine confidence in the outcome.”21 Elaborating on the
threshold, Strickland states:
It is not enough for [a defendant] to show that the errors
had some conceivable effect on the outcome of the
proceedings. Virtually every act or omission of counsel
would meet that test, and not every error that conceivably
could have influenced the outcome undermines the
reliability of the result of the proceedings.22
A court may first examine whether a defendant shows sufficient prejudice prior to
engaging in an evaluation of whether counsel’s performance was deficient.23
C. Request for Evidentiary Hearing
In habeas proceedings, a defendant is entitled to an evidentiary hearing
unless “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.”24 And, “[a] district court must conduct an evidentiary

20

Strickland at 694.

21

Id.

22

Id. at 693.

23

Id. at 697.

24

28 U.S.C. 2255; see also Frazer v. United States, 18 F.3d 778, 780 (9th
Cir. 1994).
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hearing on the prisoner’s claims unless ‘the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief. . . .’”25 Moreover,
“vague, palpably incredible, or frivolous allegations warrant summary dismissal of
a section 2255 motion.”26
The district court may deny a § 2255 motion without holding an
evidentiary hearing if “(1) the petitioner’s allegations, accepted as true, would not
entitled him to relief; or (2) the allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or allege conclusions rather
than statements of fact.”27
The Ninth Circuit has held that a petitioner’s speculation is not an
adequate basis for an evidentiary hearing.28 Similarly, “conclusory allegations
unsupported by specific facts are insufficient.”29

25

BRIAN R. MEANS, FEDERAL HABEAS MANUAL: A GUIDE TO FEDERAL HABEAS
CORPUS LITIGATION § 4:2 (West ed., 2010) (quoting 28 U.S.C.A. § 2255(b)).
26

DHILLON KHOSLA, 28 U.S.C. § 2255 CHECKLIST/UPDATED SUPPLEMENT TO
HABEAS CORPUS OUTLINE p. 5 (2005) (citing Frazer at 781).
27

Id. (citing Sanders v. U.S., 341 F.3d 720, 722 (8th Cir. 2003)).

28

FEDERAL HABEAS MANUAL § 4:17 (citing U.S. v. Zuno-Arce, 209 F.3d 1095,
1103 (9th Cir. 2000)).
29

Id. (citing Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006), cert.
denied, 127 S.Ct. 1877 (U.S. 2007) (“bald assertions and conclusory allegations
do not provide sufficient ground to warrant requiring . . . an evidentiary hearing.”);
Williams v. Woodford, 384 F.3d 567, 588 (9th Cir. 2004) (unsworn, conclusory
assertion by counsel unsupported by proof does not provide a basis for an
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III. Analysis
Defendant argues he was denied his Sixth Amendment right to effective
assistance of counsel. Specifically, he argues that the performance of his attorneys,
Daniel Libbey and Charles Coe, at the time of sentencing, following his entry into a
guilty plea agreement with the government, fell below the objective standards of
reasonableness and this caused him to be prejudiced.
Defendant states that Mr. Coe “failed to state with any specificity the
legal authorities he relied upon, did not clearly discuss what provisions of the
constitution or the law was violated by the proposed sentence, and did not articulate
why the sentence ultimately imposed would be unlawful.”30 Knowing that Mr. Libbey
was aiding Mr. Coe in representing the petitioner at sentencing, the petitioner argues
that both attorneys were ineffective because he is unable to determine who did the
research for the arguments.31
Mr. Geozos’s arguments center around his claim that his sentence
should not have fallen under the guidelines of the ACCA and that the court had
discretion to depart from the mandatory minimum sentence of 15 years. Mr. Coe did
argue against the imposition of ACCA guidelines and did argue that the court should

evidentiary hearing)).
30

Docket 113, p. 7.

31

Id.

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depart from the mandatory minimum sentence. But the Defendant is dissatisfied
with the manner in which he argued.
Mr. Geozos asserts that Mr. Coe, and by implication Mr. Libbey, should
have cited particular cases and components of the Constitution in the arguments to
the judge. He concedes that Mr. Coe did offer some specific case citations, but he
is dissatisfied that his attorneys did not do more. Despite his assertion that his
attorneys violated his Sixth Amendment rights by not offering specific cases and
citations to the Constitution, the Defendant has not offered the court any case law
which would have aided his cause. The Defendant can offer no examples of specific
parts of the Constitution which should have been cited.
In a similar vein, Mr. Geozos argues that attorneys have an obligation
to spend sufficient time preparing a defendant’s case. Implicitly, Mr. Geozos argues
that his attorneys did not fulfill this obligation. However, he can offer no facts to
support his position.
The remainder of Defendant’s argument is recitation of case law without
any description on how the law relates to the instant case. The court need not
discuss each case cited or distinguish the facts here from the facts in the cited
decision. The Defendant bears this burden.
//
//

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A. Ineffective Assistance of Counsel
In order for the Defendant to show that his attorneys at sentencing were
ineffective, thereby violating his constitutional rights as described in 28 U.S.C. §
2255, he must prove that his attorney’s representation was deficient and that the
deficiency prejudiced his case.32 Here, Mr. Geozos does not even pass the first
requirement. He makes assertions without any factual support. His allegations that
his attorneys failed to make particular arguments at sentences are assertions without
cited bases.
He fails to show that “there is a reasonable probability that, but for his
counsel’s unprofessional errors, the result of the proceedings would have been
different.”33 Because he cannot prove he was prejudiced, following the rule laid out
in Strickland, the court need not examine whether his attorneys were deficient in
their performance.34 Though, a review of the record does not demonstrate any
reason to believe the performance of either Mr. Libbey or Mr. Coe fell below their
professional requirements. Defendant’s petition is without merit. Accordingly, the
magistrate judge RECOMMENDS THE PETITION FOR RELIEF UNDER 28 U.S.C.
§ 2255 BE DENIED.

32

See Strickland at 693.

33

Id. at 689.

34

Id. at 697.

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B. Request for Evidentiary Hearing
The Defendant requests an evidentiary hearing so that he may develop
a factual basis for his allegations. But this is not sufficient to warrant a hearing.35
As stated in Sanders v. U.S., the court may deny a § 2255 motion without an
evidentiary hearing when the allegations are conclusory rather than statements of
fact.36 Unsworn, conclusory statements by counsel which are unsupported by proof
do not provide a basis for an evidentiary hearing.37 That is the scenario with the
present case. Mr. Geozos has not met his burden to warrant an evidentiary hearing.
The magistrate judge RECOMMENDS THE DEFENDANT’S REQUEST FOR AN
EVIDENTIARY HEARING BE DENIED.
IV. Conclusion
The Defendant argues his Constitutional rights were violated by his
attorneys’ deficient performances at his sentencing. He provides no factual basis
for his claims, rather asserting conclusory statements of ineffectiveness. He fails to
meet even the minimum threshold to warrant an evidentiary hearing to further
develop his allegations.

35

See generally Sanders, 341 F.3d at 722; Zuno-Arce 209 F.3d at 1103.

36

341 F.3d at 722; see also Washington, 455 F.3d at 733.

37

Williams, 384 F.3d at 588.

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The

MAGISTRATE

JUDGE

THEREBY

RECOMMENDS

DEFENDANT’S 28 U.S.C. § 2255 PETITION BE DENIED WITHOUT AN
EVIDENTIARY HEARING. It is so recommended.
DATED this

24th

day of November, 2010, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

Pursuant to F.R.Cv.P. 72(b) and 28 U.S.C. § 636(b)(1), a party seeking
to object to this proposed finding and recommendation shall file written objections
with the Clerk of Court no later than December 29, 2010. Failure to object to a
magistrate judge's findings of fact may be treated as a procedural default and waiver
of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185,
1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes
that a district court is not required to consider evidence introduced for the first time
in a party's objection to a magistrate judge's recommendation United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed
five (5) pages in length, and shall not merely reargue positions presented in motion
papers. Rather, objections and responses shall specifically designate the findings
or recommendations objected to, the basis of the objection, and the points and

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authorities in support. Response(s) to the objections shall be filed on or before
January 13, 2011. The parties shall otherwise comply with provisions of F.R.Cv.P.
72(b).
Reports and recommendations are not appealable orders. Any notice
of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the
district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).

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