Chelberg v. USA
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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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
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TRAVIS CHELBERG,
Defendant-Movant.
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Defendant Travis Chelberg has filed a motion to vacate, set aside, or
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correct his sentence under 28 U.S.C. § 2255. For the reasons discussed
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below, Defendant’s motion is DENIED.
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I. PROCEDURAL BACKGROUND
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On February 5, 2009, a grand jury sitting in the Southern District of
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California returned a two-count indictment against Defendant, charging him
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with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g),
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and 924(a)(1).
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On May 28, 2009, the grand jury returned a three-count superseding
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indictment that included the additional charge of a conspiracy to distribute
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methamphetamine in violation of 21 U.S.C. §§ 841 and 846.
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On February 12, 2010, a second superseding indictment was returned,
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charging Defendant with one count of being a felon in possession of a firearm
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and one count of conspiracy to distribute methamphetamine.
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On May 7, 2010, in a separate criminal case (10cr1753 BTM), Defendant
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was charged with assaulting an inmate with the intent to dissuade him from
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testifying in a separate case.
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On June 21, 2010, the United States filed a notice of its intent to seek an
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enhanced penalty under 21 U.S.C. §§ 841, 846, and 851 based on Defendant’s
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prior conviction for a felony drug offense.
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On December 3, 2010, a superseding information was filed, charging
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Defendant with one count of assault within the special maritime and territorial
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jurisdiction of the United States with the intent to commit a felony (witness
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tampering) in violation of 18 U.S.C. §§ 113(a)(2) and 7, and one count of being
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a felon in possession of a firearm.
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On December 3, 2010, Defendant pled guilty to the superseding
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information. Defendant entered his plea of guilty pursuant to a written plea
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agreement (“Plea Agreement”). (Doc. 129.) In the Plea Agreement, Defendant
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and the government agreed that Defendant was a career offender (Plea
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Agreement § X, ¶ D.) The parties agreed to jointly recommend that Defendant
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be sentenced to 14 years (168 months). (Plea Agreement § X, ¶ G.) In
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exchange for the government’s concessions, Defendant agreed to waive any
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right to appeal or collaterally attack the conviction. (Plea Agreement § XI.)
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On February 24, 2012, the Court sentenced Defendant to a term of 168
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months in accordance with the joint recommendation of the parties. The Court
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reasoned that taking into consideration the serious nature of the offenses,
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including an assault with a razor blade, and the fact that the government was
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dismissing a case where there was a mandatory minimum sentence of 20 years
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to life based upon a methamphetamine charge, anything less than 168 months
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would not accomplish the purposes of § 3553(a). (Tr. of Sent. Hr’g (Gov’t Ex.
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2) 52-54.) Although Defendant did not agree that he qualified as a career
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offender, the Court found that he was a career offender based on two qualifying
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offenses - a 1996 conviction for assault with a firearm (Cal. Penal Code §
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245(a)(2)) and a 1999 conviction for possession of a controlled substance for
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sale (Cal. Health & Safety Code § 11378).
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II. DISCUSSION
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Defendant seeks to vacate his sentence on the ground that he is not a
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career offender. Defendant contends that (1) his attorney, Knut Johnson,
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provided ineffective assistance of counsel in failing to properly research
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whether Defendant’s prior convictions qualify as predicate felony convictions
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for purposes of USSG § 4B1.1, and failing to advise Defendant that he was not
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a career offender; and (2) the Court erred in finding that he was a career
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offender and sentencing him to 168 months.
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The government argues that Defendant waived his right to collateral
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attack in the Plea Agreement. A waiver of collateral attack of a conviction is
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enforceable if voluntarily and knowingly made. United States v. Abarca, 985
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F.2d 1012, 1014 (9th Cir. 1993) United States v. Pruitt, 32 F.3d 431, 433 (9th
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Cir. 1994). However, a defendant’s waiver of collateral attack likely does not
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bar claims that ineffective assistance of counsel rendered the waiver
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involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005)
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(holding that “a plea agreement that waives the right to file a federal habeas
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petition under 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim
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that challenges the voluntariness of the waiver”). See also Pruitt, 32 F.3d at
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433 (expressing “doubt” that such a waiver could be enforceable in a § 2255
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context).
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It appears that Defendant argues that his waiver was not knowing or
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voluntary because his attorney failed to investigate his career offender status
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and did not inform him that he was not a career offender. Accordingly, the
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Court will proceed to the merits of Defendant’s ineffective assistance claim.
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1. Ineffective Assistance of Counsel Claim
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Defendant claims that his attorney, Knut Johnson, provided ineffective
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assistance of counsel because he failed to investigate whether Defendant’s
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prior convictions qualify as predicate felony convictions for purposes of USSG
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§ 4B1.1, and failed to properly advise Defendant regarding his career offender
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status. Defendant’s claim lacks merit.
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To prevail on a claim on ineffective assistance of counsel, a defendant
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must show that (1) his counsel’s performance fell below an objective standard
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of reasonableness; and (2) but for his counsel’s deficient performance, the
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result of the proceeding would have been different. Strickland v. Washington,
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466 U.S. 668, 687-88 (1984). There is a “strong presumption that counsel’s
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conduct falls within the wide range of acceptable professional assistance.” Id.
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at 689.
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Defendant’s ineffective assistance claim rests on the premise that
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Defendant does not qualify as a career offender. Defendant advances several
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arguments regarding why he does not qualify as a career offender. However,
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none of these arguments is persuasive.
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Defendant’s first argument is that his 1999 conviction for possession of
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a controlled substance for sale (San Diego County Superior Court Case No.
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SCD 142566) does not qualify as a predicate felony conviction because that
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case was “consolidated” with another case (San Diego County Superior Court
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Case No. SCD 144765), involving a conviction for transportation of a controlled
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substance in violation of Cal. Health & Safety Code § 11379(a).1 Defendant
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argues that because the two convictions are related, the Court can only rely on
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the longer sentence, which was given for the transportation conviction.
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As explained by the Court at the sentencing hearing, the sentence for
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Defendant’s conviction for possession for sale and the sentence for
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Defendant’s conviction for transportation are counted as separate sentences
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because the sentences were imposed for offenses that were separated by an
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intervening arrest. (Tr. of Sent. Hr’g at 20-21.) Guideline § 4A1.2 provides,
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“Prior sentences always are counted separately if the sentences were imposed
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for offenses that were separated by an intervening arrest (i.e., the defendant
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is arrested for the first offense prior to committing the second offense).” Thus,
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“sentences for offenses separated by an intervening arrest are always
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unrelated under section 4A1.2 as amended in 1991, regardless whether the
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cases were consolidated for sentencing.” United States v. Gallegos-Gonzalez,
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3 F.3d 325, 328 (9th Cir. 1993).
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Defendant argues that there are no documents proving that he was
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arrested on different dates. However, the presentence report indicated that
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Defendant was arrested on January 29, 1999 for the possession charge and
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was arrested on May 10, 1999 for the transportation charge. (Doc. 142 at 10-
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11.) At the sentencing hearing, the Court asked defense counsel whether he
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agreed that since the offenses were separated by different arrest dates, they
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both score. (Tr. of Sent. Hr’g at 21:11-13.) Mr. Johnson replied that he thought
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the Court was correct under the Guidelines. (Id. at 21:14-15.) Immediately
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afterwards, the Court asked Defendant if there was anything that he believed
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was a mistake in the Criminal History Report other than what had already been
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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.
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discussed.
(Id. at 21:23-25.)
Defendant replied, “No.”
(Id. at 21:25.)
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Defendant never said that the arrest dates in the report were inaccurate and
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even now does not claim that his arrests occurred on the same day. Indeed,
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when pleading guilty to violating Health & Safety Code § 11379, Defendant also
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pled guilty to an enhancement for committing the offense while he was on his
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own recognizance or released on bail on another felony case. (Tr. of May 24,
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1999 Change of Plea Hearing (attached to § 2255 motion), 4:2-9.)
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At any rate, in finding that Defendant was a career offender, the Court did
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not rely on the transportation conviction. Therefore, it is irrelevant whether the
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sentences for the two convictions are “related” - the Court could still count the
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possession conviction as a predicate offense. In arguing that the Court would
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be limited to relying on the transportation conviction, which carried a longer
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sentence, it appears that Defendant misconstrues § 4A1.2(a)(2), which states,
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“For purposes of applying § 4A1.1(a), (b), and (c), if prior sentences are
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counted as a single sentence, use the longest sentence of imprisonment if
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concurrent sentences were imposed.” Section 4A1.1(a), (b), and (c) pertain to
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the calculation of points to determine criminal history category, not the
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utilization of a prior felony conviction for purposes of determining career
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offender status.
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Next, Defendant argues that his 1996 conviction for assault with a firearm
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(Cal. Penal Code § 245(a)(2)) does not qualify as a predicate felony conviction
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because Defendant did not receive a sentence of more than one year.
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According to Defendant, the sentence imposed on him was 365 days and had
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already been served when he received a three-year sentence in 1999 for
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probation violation. Even assuming Defendant’s sentence was only 365 days,
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his 1996 conviction still qualifies as a predicate felony conviction. Application
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Note 1 to USSG § 4B1.2 explains:
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“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.
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(Emphasis added.) Cal. Penal Code § 245(a)(2) provides that any person who
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commits assault with a firearm shall be punished by imprisonment in the state
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prison for two, three, or four years, or in a county jail for not less than six
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months and not exceeding one year. Thus, the offense of assault with a
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firearm is punishable by imprisonment for a term exceeding one year, no matter
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what sentence Defendant actually received. See United States v. Davis, 932
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F.2d 752, 763 (9th Cir. 1991) (following the Application Note to USSG § 4B1.2
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and concluding that the defendant’s offense was punishable by imprisonment
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for a term exceeding one year even though the defendant claimed he was
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sentenced for a misdemeanor).
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sentenced to 365 days in custody and a three-year term of probation, but his
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probation was eventually revoked and he received a sentence of three years
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imprisonment.
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determination of which offenses qualify as career offender predicate offenses
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(USSG 4B1.2, note 3), the total sentence defendant received for the 1996
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conviction was four years (the original 365 days plus three years on
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revocation).
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In any event, Defendant was originally
Under USSG § 4A1.2(k)(1), which also applies to the
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Defendant also argues that his 1996 and 1999 convictions cannot serve
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as predicate offenses for purposes of § 4B1.1 because the convictions were
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unconstitutional. With respect to the 1996 conviction, Defendant argues that
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his guilty plea was not knowing or voluntary because the judge did not tell him
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the maximum term of imprisonment his offense carried. Defendant also claims
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that his lawyer provided ineffective assistance of counsel because he did not
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explain the maximum penalty and did not know the facts of his case.
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Defendant explains that he entered into the plea agreement because the judge
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and his lawyer were law school friends and he felt pressured to enter into the
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agreement. Defendant denies the factual basis of his plea.
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With respect to the 1999 possession conviction, Defendant argues that
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he was confused and did not know what he was pleading to because there
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were multiple charges and different arrest dates. Defendant claims that the
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charging documents were never read to him and that he never admitted the
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factual basis of his plea.
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The problem with Defendant’s arguments regarding the validity of his
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prior convictions is that a motion under § 2255 cannot be used to collaterally
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attack prior convictions used to enhance a federal sentence unless the
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defendant claims that he was denied the right to appointed counsel. Daniels
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v. United States, 532 U.S. 374, 382 (2001). Defendant does not raise a
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challenge concerning Gideon v. Wainwright, 372 U.S. 335 (1963). Therefore,
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Defendant cannot use the instant motion as a vehicle for challenging the
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constitutionality of his prior convictions.
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The Supreme Court explains that if a prior conviction has not been set
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aside on direct or collateral review at the time of sentencing, that conviction is
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presumptively valid and may be used to enhance the federal sentence.
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Daniels, 532 U.S. at 382. After an enhanced federal sentence has been
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imposed, the defendant may pursue any channels of direct or collateral review
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still available to challenge his prior convictions.
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successfully challenges the underlying conviction, then the defendant may
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apply for the reopening of his federal sentence. “If, however, a prior conviction
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used to enhance a federal sentence is no longer open to direct or collateral
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attack in its own right because the defendant failed to pursue those remedies
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while they were available (or because the defendant did so unsuccessfully),
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then that defendant is without recourse.” Id.
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Id.
If the defendant
The Court expresses no opinion regarding the merits of Defendant’s
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challenges to his state convictions or whether there are any channels that
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remain open for Defendant to appeal or collaterally attach his convictions. The
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Court rules only that because Defendant’s convictions have not been set aside
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at this time, Defendant’s counsel could not challenge the conviction at the time
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of sentencing (USSG § 4A1.2, note 6), and Defendant cannot here collaterally
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attack the convictions by way of his § 2255 motion.
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Defendant has not established that there is any valid argument
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supporting his position that he is not a career offender. Therefore, Defendant
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has not shown that his attorney, Knut Johnson, was ineffective in failing to
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investigate his career offender status or advising him regarding the career
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offender issues.
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2. Alleged Court Error
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For the same reasons that Defendant cannot prevail on his ineffective
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assistance claim, Defendant cannot establish that the Court erred in finding
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that he qualifies as a career offender.
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Furthermore, Defendant is barred by his waiver of collateral attack from
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arguing that the Court should not have found him to be a career offender and
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should have given him a lesser sentence. The Plea Agreement states that
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Defendant is a career offender and that the parties will jointly recommend a
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sentence of 168 months. (Plea Agreement § X,¶¶ D, G.) The Plea Agreement
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also provides that “defendant waives, to the full extent of the law, any right to
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appeal or to collaterally attack the conviction and sentence.” (Plea Agreement
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§ XI.) At the sentencing hearing, Defendant confirmed that he had indeed
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waived his right to appeal or collaterally attack his sentence and conviction.
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(Tr. of Sent. Hr’g at 57:22-58:1.) Defendant cannot now complain about his
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sentence, which conforms to the terms of the Plea Agreement and cannot be
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any surprise to him.
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The Court reminds Defendant that he did in fact receive a benefit from his
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bargain. As explained by the Court at the sentencing hearing, Defendant was
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facing a mandatory minimum sentence of 20 years and could have received a
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longer sentence under the guidelines.
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3. Request for Counsel
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In his reply, Defendant requests appointment of counsel. Prisoners do
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not have a constitutional right to counsel when collaterally attacking their
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convictions. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990).
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Under 18 U.S.C. § 3006A(a)(2)(B), the court may provide representation to any
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financially eligible person whenever the court determines that “the interests of
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justice so require.” In making this determination, “the district court must
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evaluate the likelihood of success on the merits as well as the ability of the
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petitioner to articulate his claims pro se in light of the complexity of the legal
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issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The
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Court denies Defendant’s request for appointment of counsel because the
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Court finds that Defendant is unlikely to succeed on the merits, and Defendant
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has proven himself capable of presenting his arguments to the Court without
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any assistance.
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III. CONCLUSION
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For the reasons discussed above, Defendant’s § 2255 motion is DENIED.
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The Court GRANTS a Certificate of Appealability on all of the claims raised in
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Defendant’s motion.
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IT IS SO ORDERED.
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DATED: February 5, 2014
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BARRY TED MOSKOWITZ, Chief Judge
United States District Court
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