Chelberg v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255 and Granting a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 2/5/2014.(All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

UNITED STATES OF AMERICA,
v.

Civ. Case No. 13cv453 BTM
Crim. Case No. 09cr365 BTM

Plaintiff-Respondent,

ORDER DENYING § 2255
MOTION AND GRANTING A
CERTIFICATE OF
APPEALABILITY

13
14

TRAVIS CHELBERG,
Defendant-Movant.

15
16
17

Defendant Travis Chelberg has filed a motion to vacate, set aside, or

18

correct his sentence under 28 U.S.C. § 2255. For the reasons discussed

19

below, Defendant’s motion is DENIED.

20

I. PROCEDURAL BACKGROUND

21
22

On February 5, 2009, a grand jury sitting in the Southern District of

23

California returned a two-count indictment against Defendant, charging him

24

with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g),

25

and 924(a)(1).

26

On May 28, 2009, the grand jury returned a three-count superseding

27

indictment that included the additional charge of a conspiracy to distribute

28

methamphetamine in violation of 21 U.S.C. §§ 841 and 846.
1

09cr365 BTM

1

On February 12, 2010, a second superseding indictment was returned,

2

charging Defendant with one count of being a felon in possession of a firearm

3

and one count of conspiracy to distribute methamphetamine.

4

On May 7, 2010, in a separate criminal case (10cr1753 BTM), Defendant

5

was charged with assaulting an inmate with the intent to dissuade him from

6

testifying in a separate case.

7

On June 21, 2010, the United States filed a notice of its intent to seek an

8

enhanced penalty under 21 U.S.C. §§ 841, 846, and 851 based on Defendant’s

9

prior conviction for a felony drug offense.

10

On December 3, 2010, a superseding information was filed, charging

11

Defendant with one count of assault within the special maritime and territorial

12

jurisdiction of the United States with the intent to commit a felony (witness

13

tampering) in violation of 18 U.S.C. §§ 113(a)(2) and 7, and one count of being

14

a felon in possession of a firearm.

15

On December 3, 2010, Defendant pled guilty to the superseding

16

information. Defendant entered his plea of guilty pursuant to a written plea

17

agreement (“Plea Agreement”). (Doc. 129.) In the Plea Agreement, Defendant

18

and the government agreed that Defendant was a career offender (Plea

19

Agreement § X, ¶ D.) The parties agreed to jointly recommend that Defendant

20

be sentenced to 14 years (168 months). (Plea Agreement § X, ¶ G.) In

21

exchange for the government’s concessions, Defendant agreed to waive any

22

right to appeal or collaterally attack the conviction. (Plea Agreement § XI.)

23

On February 24, 2012, the Court sentenced Defendant to a term of 168

24

months in accordance with the joint recommendation of the parties. The Court

25

reasoned that taking into consideration the serious nature of the offenses,

26

including an assault with a razor blade, and the fact that the government was

27

dismissing a case where there was a mandatory minimum sentence of 20 years

28

to life based upon a methamphetamine charge, anything less than 168 months
2

09cr365 BTM

1

would not accomplish the purposes of § 3553(a). (Tr. of Sent. Hr’g (Gov’t Ex.

2

2) 52-54.) Although Defendant did not agree that he qualified as a career

3

offender, the Court found that he was a career offender based on two qualifying

4

offenses - a 1996 conviction for assault with a firearm (Cal. Penal Code §

5

245(a)(2)) and a 1999 conviction for possession of a controlled substance for

6

sale (Cal. Health & Safety Code § 11378).

7

II. DISCUSSION

8
9

Defendant seeks to vacate his sentence on the ground that he is not a

10

career offender. Defendant contends that (1) his attorney, Knut Johnson,

11

provided ineffective assistance of counsel in failing to properly research

12

whether Defendant’s prior convictions qualify as predicate felony convictions

13

for purposes of USSG § 4B1.1, and failing to advise Defendant that he was not

14

a career offender; and (2) the Court erred in finding that he was a career

15

offender and sentencing him to 168 months.

16

The government argues that Defendant waived his right to collateral

17

attack in the Plea Agreement. A waiver of collateral attack of a conviction is

18

enforceable if voluntarily and knowingly made. United States v. Abarca, 985

19

F.2d 1012, 1014 (9th Cir. 1993) United States v. Pruitt, 32 F.3d 431, 433 (9th

20

Cir. 1994). However, a defendant’s waiver of collateral attack likely does not

21

bar claims that ineffective assistance of counsel rendered the waiver

22

involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005)

23

(holding that “a plea agreement that waives the right to file a federal habeas

24

petition under 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim

25

that challenges the voluntariness of the waiver”). See also Pruitt, 32 F.3d at

26

433 (expressing “doubt” that such a waiver could be enforceable in a § 2255

27

context).

28

It appears that Defendant argues that his waiver was not knowing or
3

09cr365 BTM

1

voluntary because his attorney failed to investigate his career offender status

2

and did not inform him that he was not a career offender. Accordingly, the

3

Court will proceed to the merits of Defendant’s ineffective assistance claim.

4
5

1. Ineffective Assistance of Counsel Claim

6

Defendant claims that his attorney, Knut Johnson, provided ineffective

7

assistance of counsel because he failed to investigate whether Defendant’s

8

prior convictions qualify as predicate felony convictions for purposes of USSG

9

§ 4B1.1, and failed to properly advise Defendant regarding his career offender

10

status. Defendant’s claim lacks merit.

11

To prevail on a claim on ineffective assistance of counsel, a defendant

12

must show that (1) his counsel’s performance fell below an objective standard

13

of reasonableness; and (2) but for his counsel’s deficient performance, the

14

result of the proceeding would have been different. Strickland v. Washington,

15

466 U.S. 668, 687-88 (1984). There is a “strong presumption that counsel’s

16

conduct falls within the wide range of acceptable professional assistance.” Id.

17

at 689.

18

Defendant’s ineffective assistance claim rests on the premise that

19

Defendant does not qualify as a career offender. Defendant advances several

20

arguments regarding why he does not qualify as a career offender. However,

21

none of these arguments is persuasive.

22

Defendant’s first argument is that his 1999 conviction for possession of

23

a controlled substance for sale (San Diego County Superior Court Case No.

24

SCD 142566) does not qualify as a predicate felony conviction because that

25

case was “consolidated” with another case (San Diego County Superior Court

26

Case No. SCD 144765), involving a conviction for transportation of a controlled

27
28
4

09cr365 BTM

1

substance in violation of Cal. Health & Safety Code § 11379(a).1 Defendant

2

argues that because the two convictions are related, the Court can only rely on

3

the longer sentence, which was given for the transportation conviction.

4

As explained by the Court at the sentencing hearing, the sentence for

5

Defendant’s conviction for possession for sale and the sentence for

6

Defendant’s conviction for transportation are counted as separate sentences

7

because the sentences were imposed for offenses that were separated by an

8

intervening arrest. (Tr. of Sent. Hr’g at 20-21.) Guideline § 4A1.2 provides,

9

“Prior sentences always are counted separately if the sentences were imposed

10

for offenses that were separated by an intervening arrest (i.e., the defendant

11

is arrested for the first offense prior to committing the second offense).” Thus,

12

“sentences for offenses separated by an intervening arrest are always

13

unrelated under section 4A1.2 as amended in 1991, regardless whether the

14

cases were consolidated for sentencing.” United States v. Gallegos-Gonzalez,

15

3 F.3d 325, 328 (9th Cir. 1993).

16

Defendant argues that there are no documents proving that he was

17

arrested on different dates. However, the presentence report indicated that

18

Defendant was arrested on January 29, 1999 for the possession charge and

19

was arrested on May 10, 1999 for the transportation charge. (Doc. 142 at 10-

20

11.) At the sentencing hearing, the Court asked defense counsel whether he

21

agreed that since the offenses were separated by different arrest dates, they

22

both score. (Tr. of Sent. Hr’g at 21:11-13.) Mr. Johnson replied that he thought

23

the Court was correct under the Guidelines. (Id. at 21:14-15.) Immediately

24

afterwards, the Court asked Defendant if there was anything that he believed

25

was a mistake in the Criminal History Report other than what had already been

26
27
28

1

At the sentencing hearing, the Court explained that it could not determine whether
the transportation offense qualified as a predicate offense without undergoing the modified
categorical approach. Therefore, the Court did not rely on the transportation conviction in
finding that Defendant was a career offender.
5

09cr365 BTM

1

discussed.

(Id. at 21:23-25.)

Defendant replied, “No.”

(Id. at 21:25.)

2

Defendant never said that the arrest dates in the report were inaccurate and

3

even now does not claim that his arrests occurred on the same day. Indeed,

4

when pleading guilty to violating Health & Safety Code § 11379, Defendant also

5

pled guilty to an enhancement for committing the offense while he was on his

6

own recognizance or released on bail on another felony case. (Tr. of May 24,

7

1999 Change of Plea Hearing (attached to § 2255 motion), 4:2-9.)

8

At any rate, in finding that Defendant was a career offender, the Court did

9

not rely on the transportation conviction. Therefore, it is irrelevant whether the

10

sentences for the two convictions are “related” - the Court could still count the

11

possession conviction as a predicate offense. In arguing that the Court would

12

be limited to relying on the transportation conviction, which carried a longer

13

sentence, it appears that Defendant misconstrues § 4A1.2(a)(2), which states,

14

“For purposes of applying § 4A1.1(a), (b), and (c), if prior sentences are

15

counted as a single sentence, use the longest sentence of imprisonment if

16

concurrent sentences were imposed.” Section 4A1.1(a), (b), and (c) pertain to

17

the calculation of points to determine criminal history category, not the

18

utilization of a prior felony conviction for purposes of determining career

19

offender status.

20

Next, Defendant argues that his 1996 conviction for assault with a firearm

21

(Cal. Penal Code § 245(a)(2)) does not qualify as a predicate felony conviction

22

because Defendant did not receive a sentence of more than one year.

23

According to Defendant, the sentence imposed on him was 365 days and had

24

already been served when he received a three-year sentence in 1999 for

25

probation violation. Even assuming Defendant’s sentence was only 365 days,

26

his 1996 conviction still qualifies as a predicate felony conviction. Application

27

Note 1 to USSG § 4B1.2 explains:

28
6

09cr365 BTM

3

“Prior felony conviction” means a prior adult federal or state
conviction of an offense punishable by death or imprisonment for
a term exceeding one year, regardless of whether such offense is
specifically designated as a felony and regardless of the actual
sentence imposed.

4

(Emphasis added.) Cal. Penal Code § 245(a)(2) provides that any person who

5

commits assault with a firearm shall be punished by imprisonment in the state

6

prison for two, three, or four years, or in a county jail for not less than six

7

months and not exceeding one year. Thus, the offense of assault with a

8

firearm is punishable by imprisonment for a term exceeding one year, no matter

9

what sentence Defendant actually received. See United States v. Davis, 932

10

F.2d 752, 763 (9th Cir. 1991) (following the Application Note to USSG § 4B1.2

11

and concluding that the defendant’s offense was punishable by imprisonment

12

for a term exceeding one year even though the defendant claimed he was

13

sentenced for a misdemeanor).

14

sentenced to 365 days in custody and a three-year term of probation, but his

15

probation was eventually revoked and he received a sentence of three years

16

imprisonment.

17

determination of which offenses qualify as career offender predicate offenses

18

(USSG 4B1.2, note 3), the total sentence defendant received for the 1996

19

conviction was four years (the original 365 days plus three years on

20

revocation).

1
2

In any event, Defendant was originally

Under USSG § 4A1.2(k)(1), which also applies to the

21

Defendant also argues that his 1996 and 1999 convictions cannot serve

22

as predicate offenses for purposes of § 4B1.1 because the convictions were

23

unconstitutional. With respect to the 1996 conviction, Defendant argues that

24

his guilty plea was not knowing or voluntary because the judge did not tell him

25

the maximum term of imprisonment his offense carried. Defendant also claims

26

that his lawyer provided ineffective assistance of counsel because he did not

27

explain the maximum penalty and did not know the facts of his case.

28

Defendant explains that he entered into the plea agreement because the judge
7

09cr365 BTM

1

and his lawyer were law school friends and he felt pressured to enter into the

2

agreement. Defendant denies the factual basis of his plea.

3

With respect to the 1999 possession conviction, Defendant argues that

4

he was confused and did not know what he was pleading to because there

5

were multiple charges and different arrest dates. Defendant claims that the

6

charging documents were never read to him and that he never admitted the

7

factual basis of his plea.

8

The problem with Defendant’s arguments regarding the validity of his

9

prior convictions is that a motion under § 2255 cannot be used to collaterally

10

attack prior convictions used to enhance a federal sentence unless the

11

defendant claims that he was denied the right to appointed counsel. Daniels

12

v. United States, 532 U.S. 374, 382 (2001). Defendant does not raise a

13

challenge concerning Gideon v. Wainwright, 372 U.S. 335 (1963). Therefore,

14

Defendant cannot use the instant motion as a vehicle for challenging the

15

constitutionality of his prior convictions.

16

The Supreme Court explains that if a prior conviction has not been set

17

aside on direct or collateral review at the time of sentencing, that conviction is

18

presumptively valid and may be used to enhance the federal sentence.

19

Daniels, 532 U.S. at 382. After an enhanced federal sentence has been

20

imposed, the defendant may pursue any channels of direct or collateral review

21

still available to challenge his prior convictions.

22

successfully challenges the underlying conviction, then the defendant may

23

apply for the reopening of his federal sentence. “If, however, a prior conviction

24

used to enhance a federal sentence is no longer open to direct or collateral

25

attack in its own right because the defendant failed to pursue those remedies

26

while they were available (or because the defendant did so unsuccessfully),

27

then that defendant is without recourse.” Id.

28

Id.

If the defendant

The Court expresses no opinion regarding the merits of Defendant’s
8

09cr365 BTM

1

challenges to his state convictions or whether there are any channels that

2

remain open for Defendant to appeal or collaterally attach his convictions. The

3

Court rules only that because Defendant’s convictions have not been set aside

4

at this time, Defendant’s counsel could not challenge the conviction at the time

5

of sentencing (USSG § 4A1.2, note 6), and Defendant cannot here collaterally

6

attack the convictions by way of his § 2255 motion.

7

Defendant has not established that there is any valid argument

8

supporting his position that he is not a career offender. Therefore, Defendant

9

has not shown that his attorney, Knut Johnson, was ineffective in failing to

10

investigate his career offender status or advising him regarding the career

11

offender issues.

12
13

2. Alleged Court Error

14

For the same reasons that Defendant cannot prevail on his ineffective

15

assistance claim, Defendant cannot establish that the Court erred in finding

16

that he qualifies as a career offender.

17

Furthermore, Defendant is barred by his waiver of collateral attack from

18

arguing that the Court should not have found him to be a career offender and

19

should have given him a lesser sentence. The Plea Agreement states that

20

Defendant is a career offender and that the parties will jointly recommend a

21

sentence of 168 months. (Plea Agreement § X,¶¶ D, G.) The Plea Agreement

22

also provides that “defendant waives, to the full extent of the law, any right to

23

appeal or to collaterally attack the conviction and sentence.” (Plea Agreement

24

§ XI.) At the sentencing hearing, Defendant confirmed that he had indeed

25

waived his right to appeal or collaterally attack his sentence and conviction.

26

(Tr. of Sent. Hr’g at 57:22-58:1.) Defendant cannot now complain about his

27

sentence, which conforms to the terms of the Plea Agreement and cannot be

28

any surprise to him.
9

09cr365 BTM

1

The Court reminds Defendant that he did in fact receive a benefit from his

2

bargain. As explained by the Court at the sentencing hearing, Defendant was

3

facing a mandatory minimum sentence of 20 years and could have received a

4

longer sentence under the guidelines.

5
6

3. Request for Counsel

7

In his reply, Defendant requests appointment of counsel. Prisoners do

8

not have a constitutional right to counsel when collaterally attacking their

9

convictions. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990).

10

Under 18 U.S.C. § 3006A(a)(2)(B), the court may provide representation to any

11

financially eligible person whenever the court determines that “the interests of

12

justice so require.” In making this determination, “the district court must

13

evaluate the likelihood of success on the merits as well as the ability of the

14

petitioner to articulate his claims pro se in light of the complexity of the legal

15

issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The

16

Court denies Defendant’s request for appointment of counsel because the

17

Court finds that Defendant is unlikely to succeed on the merits, and Defendant

18

has proven himself capable of presenting his arguments to the Court without

19

any assistance.

20

III. CONCLUSION

21
22

For the reasons discussed above, Defendant’s § 2255 motion is DENIED.

23

The Court GRANTS a Certificate of Appealability on all of the claims raised in

24

Defendant’s motion.

25

IT IS SO ORDERED.

26

DATED: February 5, 2014

27
28

BARRY TED MOSKOWITZ, Chief Judge
United States District Court
10

09cr365 BTM