Hammons v. USA

Filing 8

MEMORANDUM DECISION AND ORDER. Dennis Bruce Hammon's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 1 is DENIED and DISMISSED in its entirety. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

Case No. 1:10-cv-00299-BLW
1:06-cr-00126-BLW

v.
DENNIS BRUCE HAMMONS,

MEMORANDUM DECISION AND
ORDER

Defendant/Movant.

INTRODUCTION
Pending before the Court is Dennis Bruce Hammons’ (“Hammons”) Motion to
Vacate Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion as well as the
Response (Dkt. 5), Reply (Dkt. 6), and the underlying criminal record, the Court enters
the following Order denying the Motion.
BACKGROUND
1.

Indictment and Plea
Hammons was one of fifteen individuals charged in an Indictment filed September

13, 2006 in a case involving an approximately thirty-year drug and money laundering
conspiracy. Relevant to the pending Motion, he was charged in the Second Superseding

MEMORANDUM DECISION AND ORDER - 1

Indictment with continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 1),
conspiracy to manufacture/distribute/possess controlled substances in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 2), conspiracy to launder money in
violation of 18 U.S.C. 1956(h) (Count 3), conspiracy to structure transactions and launder
money in violation of 18 U.S.C. § 371 (Count 4), conspiracy to travel and transport in aid
of racketeering enterprises in violation of 18 U.S.C. §§ 371, 1952 (also known as an
“ITAR” offense) (Count 5), and several related forfeiture counts (Counts 6-10). See
Second Superseding Indictment, Dkt. 425 (in criminal case).1 Hammons was arrested and
appeared on February 4, 2008, in the District of Oregon. Arrest Warrant, Dkt. 446. He
was arraigned on the Second Superseding Indictment in the District of Idaho on February
19, 2008, before Magistrate Judge Mikel H. Williams, waived a detention hearing, and
remained in custody throughout these proceedings. Min. Entry, Dkt. 452; Waiver, Dkt.
456.
Appointed counsel, C. Tom Arkoosh, aggressively defended Hammons by filing a
number of pre-trial motions and joining in the pre-trial motions of co-Defendants Gregory
Frank Sperow and Lawrence Weitzman. See Mot. in Limine, Dkt. 538; Mot. to Change
Venue, Dkt. 539; Mot. to Dismiss on Speedy Trial Grounds, Dkt. 540; Mot. to Sever on
Basis of Duplicity, Dkt. 541; Mot. to Sever on Basis of Multiplicity, Dkt. 542; Mot. to
Dismiss for Vindictive Prosecution, Dkt. 544; and Mot. for Joinder in Motions of Sperow
1

All further docket numbers shall refer to entries in the underlying criminal case, Case No.
1:06-cv-00126-BLW, unless otherwise noted.
MEMORANDUM DECISION AND ORDER - 2

and Weitzman, Dkt. 545 (nine motions including five motions to dismiss for vindictive
prosecution, pre-indictment delay, speedy trial violation, improper venue; three motions
in limine; and a motion to sever). Hearing on the motions was set for May 27, 2008.
Order, Dkt. 570.
Throughout the briefing on the motions, Hammons, though counsel, engaged in
plea negotiations with the Government. See, e.g., Government’s Fourth Request for
Additional Time to Respond to Pretrial Motions, Dkt. 583 (noting that there had been
ongoing negotiations between the parties that could resolve the matter prior to trial or
narrow the scope of motions to be resolved).
On May 23, 2008, prior to the hearing on the motions, the Government filed a
signed Plea Agreement pursuant to which Hammons agreed to plead guilty to Count Five
of the Second Superseding Indictment, the ITAR charge, and to the Information in Case
No. 1:08-cr-00038-BLW charging him with Making False Statements to Obtain a
Fraudulent Passport, in return for dismissal of the remaining counts of the Second
Superseding Indictment. Plea Agreement, Dkt. 596. See also Corrected Plea Agreement,
Dkt. 695 (docketed at a later date to include missing page).2
In the Factual Basis portion of the Plea Agreement, Hammons agreed that between
October 2000 and June 20, 2005, he “conspired with [co-Defendant] Kent Jones and

2

The Court subsequently denied all of the motions in which Hammons had joined with the
exception of Sperow’s motion to sever from the then remaining co-Defendant Weitzman on which it
reserved decision. Mem. Dec. and Order, Dkt. 616.
MEMORANDUM DECISION AND ORDER - 3

others to distribute the proceeds of the drug trafficking enterprise, which conspiracy
resulted in drugs (sic) proceeds being distributed in interstate commerce to Hammons, or
on behalf of Hammons.” Plea Agreement, ¶ III.C. He also agreed that he executed a
passport application in the name of his deceased brother. Id. As relevant here, he agreed
that the maximum term of imprisonment on Count Five was imprisonment for a term of
not more than five years and that the maximum term of imprisonment on the fraudulent
passport charge was likewise not more than five years. Id., IV.A. On June 10, 2008,
Hammons entered his plea of guilty before Magistrate Judge Candy W. Dale. Min. Entry,
Dkt. 622. See also Plea Hearing Tr., Dkt. 708.
2.

Sentencing
The road from plea to sentencing was not an easy one. Defense counsel’s vigorous

objections to the Presentence Report led to protracted litigation including evidentiary
hearings in the sentencing phase which ultimately concluded over one year after
Hammons entered his plea. The Presentence Report grouped the ITAR and passport
offenses and applied the drug guideline, § 2D1.1. The resulting offense level was 27
which, with a criminal history category of IV (including two prior federal drug
convictions), yielded a guideline range of 100 to 120 months. Hammons objected to the
offense calculation contending that the appropriate applicable guideline was the money
laundering guideline, § 2S1.1. The Probation Officer disagreed and submitted the final
Presentence Report to the Court with an offense level calculation based on § 2D1.1.

MEMORANDUM DECISION AND ORDER - 4

At the initial sentencing hearing date of October 17, 2008, Hammons continued his
guideline argument, the Court listened to the tape of the plea hearing, decided that there
was not a meeting of the minds, and allowed the parties to confer about how to proceed.
The Court gave the Government the option of proceeding under § 2S1.1 or agreeing to
allow Hammons to withdraw his plea. The Government indicated its agreement to
proceed under § 2S1.1, but requested additional time to reassess the evidence to be
presented. Min. Entry, Dkt. 694. The Government also indicated that it questioned
whether Hammons would still be entitled to an adjustment for acceptance of
responsibility. Id. The Court continued the hearing and directed counsel to file
simultaneous briefs on the various sentencing issues. Id. Further briefing was allowed
after the preparation of the plea hearing transcript. See Briefs, Dkts. 700, 701, 702, 711,
712.
On December 15, 2008, after reviewing the Plea Hearing transcript and the
briefing, the Court found that there was no ambiguity in the Plea Agreement, that
Hammons clearly pleaded guilty to distributing the proceeds of the drug trafficking
enterprise, and that he did not, therefore, have an unqualified right to sentencing under
§ 2S1.1. Order, Dkt. 756. The Court continued:
However, out of an abundance of caution, recognizing that
Defendant’s liberty is at stake, the Court finds that there was
no meeting of the minds at the time the parties entered the
Plea Agreement. Therefore, Defendant shall have two
options. First, he may withdraw from the Plea Agreement.
Second, he may waive his right to contest the validity of his
MEMORANDUM DECISION AND ORDER - 5

plea and proceed with sentencing pursuant to § 2S1.1 with the
understanding that the Government may present evidence on
both the amount and the acceptance of responsibility issues.
Order at 12, Dkt. 756.
Regarding the amount issue, the Government advised that it would seek to prove
that Hammons had received $420,000 in drug proceeds whereas Hammons advised that
he would admit to having received only $2,000. This difference was significant given
that it resulted in a 14-level difference in the total offense level under the sentencing
guidelines.
Defendant opted to proceed with sentencing under § 2S1.1. Notice to Proceed to
Sentencing, Dkt. 757. Sentencing was set for April 17, 2009. Order, Dkt. 762. Prior to
sentencing, each party filed additional argument. Dkts. 787; 791; 792. At the hearing,
the Court heard testimony from Government witnesses Ron Nelson, Gregory Gleason,
and Forest Gerald McDonald. Min., Dkt. 795. The hearing was to continue on May 15,
2009. However, the Government filed an unopposed motion for a 30-day continuance to
interview a new witness or witnesses which the Court granted. Dkt. 821; 823. The
matter was reset for June 23, 2009. Dkt. 831.
On June 23, 2009, the Court once again convened the sentencing hearing and
received further testimony from Forest Gerald McDonald. Minutes, Dkt. 866. However,
the matter was continued yet again to allow for video conference appearance of a defense
witness and a Government witness. Minutes, Dkt. 866. The parties filed additional

MEMORANDUM DECISION AND ORDER - 6

briefing/sentencing memoranda in advance of the newly set date of July 7, 2009,
maintaining their respective positions regarding the amount. Dkts. 882, 885. The Court
heard testimony by video conference of the two witnesses on July 7. Minutes, Dkt. 887.
Sentencing concluded on July 10, 2009. Minutes, Dkt. 891.
Following the vigorously contested evidentiary hearing that occurred over a period
of months, the Court sentenced Hammons to a term of 60 months in Case No. 1:06-cr00126-BLW for the ITAR offense, in Case No. 1:08-CR-138-BLW to a term of 36
months for making false statements to obtain a fraudulent passport, and in Case No. 1:08CR-319-BLW to a term of nine months for revocation of his term of supervised release in
an unrelated federal case, all terms to run consecutively for a total sentence of 96 months.
Respectively, Judgment, Dkt. 892; Judgment, Dkt. 27; and Judgment, Dkt. 19.
On June 14, 2010, nearly a year after sentencing, Hammons timely filed identical
§ 2255 Motions in each of the criminal cases alleging ineffective assistance of counsel for
failure to file a notice of appeal of the sentence in the drug case. The Court dismissed the
§ 2255 Motions filed in the false statements case and the revocation case since the issue
Hammons indicated he wanted to appeal related only to the portion of the sentence
attributable to the ITAR charge. Mem. Dec. and Order, Dkt. 4 in each of Case Nos. 1:10cv-00302-BLW, and 1:10-cv-303-BLW.
REVIEW OF § 2255 MOTION
In his § 2255 Motion, Hammons alleges ineffective assistance of counsel for

MEMORANDUM DECISION AND ORDER - 7

failure to file a notice of appeal of the Court’s determination of the dollar amount for
which he was responsible in connection with the ITAR charge despite his request that
counsel do so. He states that “[a]t sentencing, the sentencing Court gave me the option to
file a Notice of Appeal, despite my conditional waiver of appeal, to appeal the amount of
money that the government alleged I received versus the amount of money I claimed I
was responsible for.” § 2255 Motion, at 5. In his supporting Memorandum, he states that
as part of the Plea Agreement, he “agreed to waive some of his appellate rights. Mem. at
2, Dkt. 1-1. He further correctly states that he waived the right to contest the validity of
his guilty plea and proceed to sentencing. Id. at 3. He contends that he should have only
been sentenced based on the $2,000 he admitted to receiving rather than on the amount of
$420,000. Id.
In arguing that his attorney was ineffective for not filing a notice of appeal,
Hammons states that “[w]hile the plea agreement limited the right to appeal issues that
are irrelevant to this proceeding, [he] still preserved the right to file one direct appeal and
the right to file one habeas petition under 28 U.S.C. § 2255.” Id. at 6. He also claims
that “counsel did not explain to [him] that regardless of his plea waiver he still preserved
his right to appeal certain meritorious issues on appeal” and that “the Court gave [him]
the right to appeal his sentence.” Id. (quoting language from the Sentencing Hearing
Transcript at page 53, ¶¶ 6-20).
Hammons “concedes that he waived most of his appellate rights in the plea

MEMORANDUM DECISION AND ORDER - 8

agreement,” but contends that “this waiver assumed that counsel would adequately
perform his job throughout the proceedings.” Id. at 8. In reliance on United States v.
Raynor, 989 F.Supp. 43 (D.D.C. 1997), he further states that he “did not waive his right
to be sentenced correctly” and that “[u]ntil a sentence is imposed, a defendant cannot
possibly know what it is he or she is waiving.” Id. He claims prejudice in that he
received a “much greater sentence than that advised by his attorney” and that “said
sentence was then unappealable.” Id. He requests that his conviction and sentence be
vacated or in the alternative that his appellate rights be restored. Id.
In response, the Government contends that the waiver in the Plea Agreement was
valid. It submitted an affidavit from Mr. Arkoosh stating that he had discussed the effect
of the appellate waiver with Hammons and that Hammons ultimately directed him not to
appeal because he was concerned that he could receive a harsher sentence if re-sentenced.
The Government also submitted a copy of Mr. Arkoosh’s letter to Hammons indicating
that he had discussed with Hammons the “various limitations in the Plea Agreement to
appeal” and the possible adverse consequences of appealing. The Government concludes
that even if Mr. Arkoosh’s performance had been deficient in not filing a notice of
appeal, Hammons has failed to demonstrate prejudice in that he failed to demonstrate that
there is a reasonable probability that he would have timely appealed if counsel had
consulted with him.
In his Affidavit, Mr. Arkoosh states that in addition to discussing the appeal

MEMORANDUM DECISION AND ORDER - 9

waiver language when reviewing the Plea Agreement, he met with Hammons on July 4, 6,
7, 8, 9, and 10, 2009 preparing for sentencing, discussing his options for appeal, and
discussing how the Court and the AUSA might respond to an appeal.3 Arkoosh Aff., ¶¶ 18. He also referred to the July 16, 2009 letter to Hammons memorializing the
conversations and stated that Hammons expressed his concerns that if he were to be
resentenced he would get a harsher sentence. Id. at ¶ 10. Finally, Mr. Arkoosh states that
after sentencing, Hammons directed him not to file an appeal. He never heard otherwise
until the § 2255 was filed. Id.
In his Reply, Hammons claims “it should not matter that [he] waived his right to
appeal his sentence and conviction as part of his plea agreement.” Reply at 2. He notes
that the waiver must be knowing and voluntary and that it can be invalidated based on
ineffective assistance of counsel. He argues that waiver of appellate review of his
sentence “is implicitly conditioned on the assumption that the proceedings following
entry of the plea will be conducted in accordance with constitutional limitations.” Id. at
3. However, none of the cases he cited stand for that proposition.
In a similar vein, in reliance on United States v. Raynor, 989 F. Supp. 43 (D.D.C.
1997), Hammons argues that plea agreements are unfair and should not be upheld as to a
yet to be imposed sentence. Finally, Hammons concedes that he waived his appeallate

3

The Plea Agreement provided, inter alia, that in the event of a breach of any promise in the
Plea Agreement, “the Government is relieved of any obligation not to prosecute defendant on other
charges, including any charges dismissed as part of this Plea Agreement.” Plea Agreement, ¶ IX.A.
MEMORANDUM DECISION AND ORDER - 10

rights in the Plea Agreement but states that the waiver “assumed that counsel would
adequately perform his job throughout the proceedings.” Id. He relied on counsel to
make sure he was not erroneously sentenced, and he did not waive his right to be
sentenced correctly. Id. at 4.
Specifically addressing Mr. Arkoosh’s Affidavit, Hammons states that the
meetings of July 4, 7, 8, and 9, in which Mr. Arkoosh represents that he discussed the
appeal waiver, were primarily spent preparing for sentencing. He states that discussions
about the appeal did not take place until July 10 – after sentencing – at which time he
recalls discussing with counsel his desire to appeal the court’s decision regarding the
amount of money attributed to him. Id. at 4. They also discussed an appeal the following
day when counsel visited him at the Ada County Jail. Id. at 4-5. While admitting that he
may have discussed appeal options with counsel “briefly and at different times, Hammons
claims that the discussions never amounted to the “significant amount of time” counsel
claims. Id. at 5. Hammons posits that if he had indicated “some sort of unhappiness,”
even if the appeal discussions had been significant, counsel “should have been competent
enough to file a Notice of Appeal on [his] behalf.” Id. at 5. Finally, he states that he “did
not merely demonstrate to counsel his interest in an appeal, he explicitly told his lawyer
he wanted to appeal and his lawyer refused to do so.” Id. 6.
In his supporting Affidavit, Hammons states that it was only after sentencing that
he and counsel discussed an appeal:

MEMORANDUM DECISION AND ORDER - 11

It was only after I had been sentenced, on July 10, 2009, that
my attorney came to the holding cell and then we discussed an
appeal. It was at that time that I told him that I wanted to
argue and appeal the judge’s decision concerning the amount
of money attributed to me. My attorney then came and saw
me the following day at the Ada County Jail and we talked
about the appeal. He told me I could not file an appeal
because I waived my right to appeal, but I told him to file one
anyway.
I also talked to another attorney about filing an appeal on my
behalf. But, after the second attorney contacted Mr. Arkoosh
about my appeal, Mr. Arkoosh told him that I had waived my
appeal rights.
Hammons Aff., Dkt. 6-1.

MEMORANDUM DECISION AND ORDER - 12

Notably absent from Hammons’ Affidavit is any reference to Mr. Arkoosh’s letter.
Hammons does not deny having received it or state that after he received the letter he
directed Mr. Arkoosh to file a notice of appeal.
STANDARDS OF LAW
1.

28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may

grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.”
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the
Government “to file an answer, motion, or other response within a fixed time, or to take
other action the judge may order.”
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after

MEMORANDUM DECISION AND ORDER - 13

consideration of the pleadings and an expanded record. See Advisory Committee Notes
following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then determines under Rule
8 whether an evidentiary hearing is required. The Court need not hold an evidentiary
hearing if the issues can be conclusively decided on the basis of the evidence in the
record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
2.

Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of

counsel claims is deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a
claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156,
1161 (9th Cir. 1989).
In order to establish deficient performance, a defendant must show that counsel’s
performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. Under the performance prong, there is a strong presumption that counsel’s
performance falls “within the wide range of reasonable professional assistance.” Id. at
689. This is so because for the defendant, “[i]t is all too tempting . . . to second-guess
counsel’s assistance after conviction or adverse sentence. . . .” Id. For the court, “it is all

MEMORANDUM DECISION AND ORDER - 14

too easy to conclude that a particular act or omission of counsel was unreasonable in the
harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).
In order to establish prejudice, a defendant must affirmatively prove by a
reasonable degree of probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland
standard is “highly demanding.” Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386
(noting that the court should “assess counsel’s overall performance throughout the case”
when evaluating whether his assistance was reasonable).
Both prongs of the Strickland test must be met “before it can be said that a
conviction (or sentence) ‘resulted from a breakdown in the adversary process that
render[ed] the result [of the proceeding] unreliable’ and thus in violation of the Sixth
Amendment.” United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting
Strickland, 466 U.S. at 687).
Ineffective assistance of counsel claims for failure to file a notice of appeal are
evaluated under the Strickland test. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Where a defendant specifically instructs counsel to file a notice of appeal, failure to do so
constitutes ineffective assistance of counsel, and the lost chance to appeal constitutes
prejudice. United States v. Sandoval-Lopez, 409 F.3d 1193, 1196-98 (9th Cir. 2005).
However, where a defendant does not instruct counsel to either file or not file a notice of
appeal, the court must first determine whether counsel consulted with the defendant

MEMORANDUM DECISION AND ORDER - 15

regarding an appeal. Flores-Ortega, 528 U.S. at 477-78 (2000). If counsel has not done
so, then the court must determine whether that failure to consult in and of itself
constituted deficient performance. Id.

MEMORANDUM DECISION AND ORDER - 16

[C]ounsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing. In making this
determination, courts must take into account all the
information counsel knew or should have known.
Id. at 480.
If counsel fails to consult with a defendant about an appeal in circumstances giving
rise to the duty to consult, Defendant must demonstrate that he would have timely
appealed but for counsel’s failure to consult. Id. at 484. Evidence that a defendant
sufficiently demonstrated an interest in appealing is not determinative that he would have
instructed counsel to file a notice of appeal after receiving reasonable advice. Id. at 486.
3.

Waiver
“[P]ublic policy strongly supports plea agreements,” even those waiving the right

to appeal. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990).
“[P]erhaps the most important benefit of plea bargaining[] is the finality that results.” Id.
at 322.
“A defendant’s waiver of his appellate rights is enforceable if (1) the language of
the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is
knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th
Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947
(9th Cir. 2007) (en banc). General waivers of appeal in a plea agreement are read broadly
MEMORANDUM DECISION AND ORDER - 17

and include appeals of matters other than the conviction itself. United States v. Rahman,
642 F.3d 1257, 1259 (9th Cir. 2011).
DISCUSSION
The sole issue before the Court is whether counsel provided ineffective assistance
by failing to file a notice of appeal. In addressing that issue, whether or not there was an
appeal waiver is of limited relevance. However, other issues have been addressed in the
briefing that prompt comment before addressing the merits of Hammons’ claim.
Although those issues are not relevant to the sole issue before the Court, they reflect a
misunderstanding or misreading of both the record and the law by Hammons. The Court
questions whether he would have filed the § 2255 Motion despite his admitted waiver
absent his misperceptions.
1.

Preliminary Matters
A.

Alleged Conditional Waiver

As stated above, Hammons alleges in his § 2255 Motion that “[a]t sentencing, the
sentencing Court gave me the option to file a Notice of Appeal, despite my conditional
waiver of appeal, to appeal the amount of money that the government alleged I received
versus the amount of money I claimed I was responsible for.” § 2255 Motion at 5. He
also claimed that “counsel did not explain to [him] that regardless of his plea waiver he
still preserved his right to appeal certain meritorious issues on appeal.”
The waiver of appeal was not conditional and did not give him the right to raise

MEMORANDUM DECISION AND ORDER - 18

“certain meritorious issues” on appeal. The clear language of the Plea Agreement stated:
A.
In exchange for the Government’s concessions in this
Plea Agreement, and except as provided in subparagraph B,
defendant waives to the full extent of the law any right to
appeal or to collaterally attack the conviction, entry of
judgment, sentence (including any restitution or forfeiture
order), or entry of sentence. This waiver includes appeals and
collateral attacks based on any source whatever, including
but not limited to:
1.

28 U.S.C. § 1291 (judgment and conviction);

2.

18 U.S.C. §§ 3553 and 3742(a), and 28 U.S.C. § 1291
(sentencing);

3.

28 U.S.C. §§ 2241-2255 (habeas corpus).

The defendant acknowledges and agrees that this
waiver shall result in the dismissal of any appeal or collateral
attack the defendant might file challenging his conviction or
sentence in this case. Further, if the defendant files a notice
of appeal or a habeas petition, notwithstanding this
agreement, defendant agrees that this case shall, upon the
motion of the Government, be remanded to the district court
to determine whether defendant is in breach of this agreement
and, if so, to permit the Government to withdraw from the
Plea Agreement.
If the defendant believes the Government has not fulfilled its
obligations under this agreement, defendant will object at the
time of sentencing; otherwise the objection will be deemed
waived.
B.
Notwithstanding subparagraph A, the defendant shall
retain the right to file one direct appeal if the sentence
imposed exceeds the statutory maximum as determined by the
district court; . . . .
Plea Agreement at 5-6 (emphasis added), Dkt. 695.
MEMORANDUM DECISION AND ORDER - 19

The waiver language is “about as solid a waiver of the right to appeal as can be
imagined.” See United States v. Sandoval-Lopez, 409 F.3d 1193, 1195 (9th Cir. 2005)
(addressing a plea agreement that stated “[t]he defendant agrees not to appeal his
convictions or any sentences imposed in accordance with the plea agreement” coupled
with the plea colloquy). Here, the only appealable issue under the Plea Agreement was a
sentenced imposed in excess of the statutory maximum. Hammons was not sentenced
above the statutory maximum. The Plea Agreement did not give him the right to appeal
“certain meritorious issues” other than a sentence above the statutory maximum.
B.

Court’s Comments Regarding Appeal Rights

As also stated above, Hammons alleges that “the Court gave [him] the right to
appeal his sentence.” Mem. at 3 (quoting language from the Sentencing Hearing
Transcript at page 53, ll. 6-20).
The Court’s sole comments on the right to appeal were:
Typically a defendant has the right to appeal their (sic)
conviction or sentence, however your plea agreement in [Case
No.] 06-126 and [Case No.] 08-138 contains a provision
which waives some or all of those rights with regard to
appeals from those convictions. Such waivers are generally
enforceable, but you may argue that in your case they are not.
If you wish to pursue an appeal, either an appeal from the
Court decision on the supervised release violation in [Case
No.] 08-319 or an appeal under [Case No.] 06-126 or [Case
No.] 08-138, to either challenge the waiver of your appeal
rights or to appeal an issue not waived by your plea agreement
in those two cases, you must file an appeal within 10 days
from today within which – or that right may be waived. So
MEMORANDUM DECISION AND ORDER - 20

it’s important if you’re going to pursue an appeal you must do
so within 10 days.
Sent. Tr. at 53 (emphasis added), Dkt. 924.
Nowhere did the Court give Hammons the right to appeal his sentence or its
findings regarding the amount. It essentially told Hammons that he could either argue
that his waiver was unenforceable or appeal an above the statutory maximum sentence.
These general comments of the Court cannot be construed to invalidate the waiver in the
Plea Agreement. See United States v. Arias-Espinosa, 704 F.3d 616, 619 (9th Cir. 2012)
(court’s statement that defendant “may have a right to appeal” did not invalidate waiver).
See also United States v. Watson, 582 F.3d 974, 987-88 (9th Cir. 2009) (same regarding
“ambivalent comments” by the court that “maybe” the defendant’s attorney could find a
way to appeal a supervised release condition to challenge its constitutionality); United
States v. Aquilar-Muniz, 156 F.3d 974, 977 (9th Cir. 1998) (same regarding court’s
comments that although waivers are generally enforceable “if you believe the waiver is
unenforceable, you can present that theory to the appellate court”); United States v.
Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (same regarding court’s comments that
“[i]t’s up to the Ninth Circuit to decide whether under the circumstances [defendant] lost
his right of appeal.”).
C.

Argument that Waiver Does Not Pertain to Sentencing Matters

Hammons claims that he “did not waive his right to be sentenced correctly.” Mem.
at 8. He continues, “[u]ntil a sentence is imposed, a defendant cannot possibly know
MEMORANDUM DECISION AND ORDER - 21

what it is he or she is waiving.” Id. (citing United States v. Raynor, 989 F. Supp. 43
(D.D.C. 1997)). In his Reply, he continues this Raynor argument. The court in Raynor
opined that “[a] defendant cannot knowingly, intelligently and voluntarily give up the
right to appeal a sentence that has not yet been imposed and about which the defendant
has no knowledge as to what will occur at the time of sentencing. This Court therefore
will accept no plea agreements containing waiver provisions of this kind.” Raynor, 989
F.Supp. at *49.
The Court can find no Circuit Court of Appeals that has adopted the reasoning of
the district judge in Raynor. See, e.g., United States v. Hahn, 359 F.3d 1315, 1326 (10th
Cir. 2004) (rejecting Raynor-based argument that “a defendant can never knowingly and
voluntarily waive his appellate rights because he cannot possibly know in advance what
errors a district court might make in the process of arriving at an appropriate sentence.”)
See also United States v. Teeter, 257 F.3d 14, 23 and n.6 (1st Cir. 2001) (noting and
following the “collective wisdom” of the then nine circuit courts passing on the validity
of presentence waivers of appellate rights although noting Raynor and other individual
judges who “have demurred”); United States v. Khattak, 273 F.3d 557, 560-62 (3d Cir.
2001) (same citing decisions of ten other courts of appeal). More importantly relevant
here, as recognized in Teeter and Khattack, the Ninth Circuit recognizes waivers in the
sentencing context as long as the waiver was knowing and voluntary. See, e.g., United
States v. Nguyen, 235 F.3d 1179, 1182-83 (9th Cir. 2000), abrogated on other grounds by

MEMORANDUM DECISION AND ORDER - 22

United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). In his § 2255 Motion,
Hammons did not claim that his waiver was not knowing and voluntary.
D.

Claim Raised in Reply

To the extent that Hammons is claiming in his Reply that his waiver was not
knowing and voluntary, that claim must be dismissed. Issues raised for the first time in a
reply are not cognizable. See Detrich v. Ryan,

F.3d

, 2013 WL 4712729, at *28 n.6

(9th Cir. Sept. 3, 2013) (en banc) (citing United States v. Anekwu, 695 F.3d 967, 958 (9th
Cir. 2012)). See also United States v. Joiner, 847 F. Supp. 604, 606-07 (N.D.Ill. 1994)
(refusing to consider arguments raised for first time in reply in a § 2255 proceeding);
Wilson v. United States, 149 F.Supp.2d 1045 (N.D.Ind. 2001) (same). The purpose of a
reply is to address arguments raised in the answer or response rather than to add new
claims against the opposing party. Indeed, a reply is not even mentioned among the
documents to be reviewed when a court is making a decision as to whether an evidentiary
hearing on a § 2255 motion is warranted. See Rule 8 of the Rules Governing Section
2255 Proceedings.4

4

The claim could not even be raised by amendment because it would be time-barred. The
Supreme Court has held that an amendment does not relate back to the date of the initial pleading and
therefore defeat the one-year statute of limitations “when it asserts a new ground for relief supported by
facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545
U.S. 644, 650 (2005) (finding claim that admission of damaging statements made in response to coercive
police tactics violated his Fifth Amendment rights did not relate back to initial claim that the admission
of videotaped testimony of a prosecution witness violated his rights under the Sixth Amendment
Confrontation Clause). Whether or not counsel failed to file a notice of appeal despite his client’s
alleged directive to do so after sentencing is clearly removed temporally and substantively from counsel’s
advice and a defendant’s state of mind at the time of the change of plea hearing.
MEMORANDUM DECISION AND ORDER - 23

2.

Merits of § 2255 Motion
On the sole issue raised in the § 2255 Motion, the Court can proceed under either

of two theories and reach the same conclusion based on the record – that Hammons’
Motion should be dismissed.
The Court has before it counsel’s and Hammons’ affidavits. There is no real
factual dispute. Hammons disputes the level of discussion about the merits and
consequences of appealing, but he does not dispute that there was at least some
discussion, particularly on the day of sentencing and the day after sentencing. The
difference in degree is not significant. What is significant is the fact that Hammons did
not deny in his Affidavit that counsel sent him the July 16, 2009, letter or deny that he
received it. In the absence of any evidence to the contrary, the Court must assume that
Hammons received the letter. Nevertheless, Hammons does not state that he directed
counsel to file a notice of appeal (or confirmed a prior directive) after receiving the letter.
Accordingly, the Court finds that Hammons ultimately did not instruct counsel to file a
notice of appeal after receiving the letter which clearly called for a response.
The Government takes the view that Hammons did not instruct counsel to file a
notice of appeal, as the Court has found, and that Flores-Ortega governs. Under FloresOrtega, where a defendant does not direct counsel to file a notice of appeal, a court must
first determine if counsel consulted with the defendant regarding an appeal and, if not,
then determine whether counsel had reason to believe that a rational defendant would

MEMORANDUM DECISION AND ORDER - 24

want to appeal or that the particular defendant demonstrated a desire to appeal. FloresOrtega, 528 U.S. at 480. Whether or not there was an appellate waiver is a factor to be
considered when determining whether a rational defendant would want to appeal. Here,
however, it is not necessary to make that determination because counsel did consult with
Hammons regarding problems attendant to appealing despite the waiver. Therefore, the
Court concurs with the Government’s conclusion that counsel’s performance was not
constitutionally deficient.
The Court views the circumstances in this case as more akin to the circumstances
in Sandoval-Lopez which addressed the situation where a defendant alleged that counsel
failed to file a notice of appeal despite his clear instructions to do so. In this scenario,
whether there is an appellate waiver in the Plea Agreement is irrelevant. Indeed, there
was a “solid waiver” in Sandoval-Lopez.
In Sandoval-Lopez, the Ninth Circuit held that counsel’s failure to file a notice of
appeal despite a defendant’s instruction to do so constitutes deficient performance, and
the lost opportunity to appeal constitutes prejudice. Sandoval-Lopez, 409 F.3d at 119698. Noting that Sandoval-Lopez’s appeal would “most probably have been dismissed
because it had been waived” and that if he had a new trial on the original indictment he
would likely receive a much longer sentence than his attorney negotiated, the court stated
that “he was probably lucky to have a lawyer who exercised such wise judgment” by not
appealing. Id. at 1198. The court continued, “[b]ut even though no one would think a

MEMORANDUM DECISION AND ORDER - 25

doctor incompetent for refusing to perform unwise and dangerous surgery, the law is that
‘a lawyer who disregards specific instructions from the defendant to file a notice of
appeal acts in a manner that is professionally unreasonable.’” Id. Finally, it noted that
requiring counsel to file a requested notice of appeal “may amount to saying ‘it is
ineffective assistance of counsel to refuse to file a notice of appeal when your client tells
you to, even if doing so would be contrary to the plea agreement and harmful to your
client,’ but that is the law on filing a notice of appeal.” Id.
Based on Sandoval-Lopez, if the Court were to find that Hammons directed
counsel after receiving counsel’s July 16, 2009, letter to file a notice of appeal, then it
would grant the § 2255 Motion without regard to the waiver and restart the time for filing
a notice of appeal. However, Hammons did not so allege in his responsive Affidavit.
Counsel’s Affidavit stands unrebutted in its most significant respects. Accordingly, the
Court will dismiss the § 2255 Motion.
CONCLUSION
As the Court stated at sentencing, Hammons got a “tremendous benefit” from the
Plea Agreement. Sent. Tr. at 54. The Court noted that in particular the benefit of the
Government’s allowing him to plead guilty to a charge with a five-year maximum. Id.
Indeed, two of the other charges carried statutory minimums of twenty and ten years,
respectively, and one carried a twenty-year maximum. See Second Superseding
Indictment, Counts 1, 2, and 3. The Court concluded that counsel “did an excellent job in

MEMORANDUM DECISION AND ORDER - 26

representing you and although this was a difficult, hard-fought, and perhaps contentious, I
think the government still was true to their word and you still received a tremendously
beneficial plea agreement and a sentence that could have been much worse.” Sent. Tr. at
54-55. Under the circumstances, like the court in Sandoval-Lopez, this Court would
seriously question the wisdom of appealing. However, it is not up to the Court to
consider that question. It must only determine whether Hammons told counsel to appeal.5
The Court finds that despite his interest in appealing, Hammons did not ultimately direct
counsel to do so.
Finally, although it did not factor into its decision, the Court notes that while
Hammons argues emphatically that he wanted to appeal, that he directed counsel to
appeal, and that he consulted a second attorney regarding an appeal, he waited eleven
months to file his § 2255 Motion. While the Motion was timely, it is certainly not
suggestive of someone who adamantly wanted to appeal and instructed his counsel to do
so.

CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a

5

Although not determinative, that Mr. Arkoosh suggested that Hammons consult with another
attorney, that Hammons did so, and that the other attorney reached the same conclusion regarding the
appeal lends credence to Mr. Arkoosh’s position that Hammons did not ultimately direct him to file a
notice of appeal.
MEMORANDUM DECISION AND ORDER - 27

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).6 When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Slack, 529 U.S. at
484; Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s determination that counsel’s
performance was not constitutionally deficient to be debatable or wrong. Accordingly, a
certificate of appealability will not issue.
ORDER
IT IS ORDERED:
1.

Dennis Bruce Hammon’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DENIED and DISMISSED in its
entirety.

6

The requirements for a certificate of appealability for a § 2255 appeal do not appear to differ
from the requirements for a certificate of appealability for a § 2254 habeas petition related to a state
conviction. See United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997). Therefore, cases addressing the
requirements in the context of a § 2254 proceeding are pertinent to a § 2255 proceeding as well.
MEMORANDUM DECISION AND ORDER - 28

2.

No certificate of appealability shall issue. Hammons is advised that he may
still request a certificate of appealability from the Ninth Circuit Court of
Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, he must file a timely notice of appeal.

5.

If Hammons files a timely notice of appeal, and not until such time, the
Clerk of Court shall forward a copy of the notice of appeal, together with
this Order, to the Ninth Circuit Court of Appeals. The district court’s file in
this case is available for review online at www.id.uscourts.gov.

DATED: September 24, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 29