Dady v. USA

Filing 7

MEMORANDUM DECISION AND ORDER dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255); granting 6 Motion to Dismiss. This matter is 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALBERT DEAN DADY,
Petitioner,

Case No. 1:10-cv-00478-BLW
1:09-cr-00080-BLW

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM DECISION AND
ORDER

Before the Court is a Petition (Dkt. 1) to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255, by Defendant/Petitioner Albert Dean Dady. The government
opposes and has moved to dismiss Barron’s Petition (Dkt. 6). The deadline for Petitioner
to respond has long passed, and the Court has received no response or reply from
Petitioner in this matter. Being familiar with the record and having considered the
briefing, the Court will deny Barron’s Petition under § 2255, and grant the government’s
Motion to Dismiss, as follows.
BACKGROUND
Petitioner was indicted and charged with Aggravated Abuse of a Child Under the
Age of Twelve (Dkt. 1 in criminal case).1 The government l filed a Superseding
Information charging Petitioner with Interstate Transportation of a Minor with Intent to
Engage in Unlawful Sexual Conduct (Dkt. 10). Petitioner waived his right to indictment

1
Throughout the Background section only, citations to the Court Docket shall refer to entries in
petitioner’s criminal case, No. 1:09-cr-00080-BLW, unless otherwise identified.

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and pleaded guilty to this latter charge. See Dkts. 17, 21. United States Magistrate Judge
Ronald Bush presided over Petitioner’s change of plea hearing, and filed a Report and
Recommendation (Dkt. 22). This Court adopted the Report and Recommendation on
June 9, 2009 (Dkt. 23).2 The parties filed a Joint Sentencing Stipulation (Dkt. 31),
pursuant to which the Court sentenced Petitioner to 168 months imprisonment (Dkt. 32).
Judgment was entered October 13, 2009 (Dkt. 33). Petitioner did not appeal to the Ninth
Circuit.
In Petitioner’s motion under 28 U.S.C. § 2255, now before the Court, he alleges
violation of his Fifth Amendment rights by the Garden City Police, violation of his
Fourteenth Amendment due process rights due to actions of police and counsel, and
ineffective assistance of counsel due to counsel’s (1) failure to move to suppress
Petitioner’s confession, (2) misrepresentation of the joint sentencing stipulation, and (3)
refusal to clear up an error in the Magistrate Judge’s Report and Recommendation.
LEGAL STANDARD
A prisoner asserting the right to be released “may move the court which imposed
the sentence to vacate, set aside or correct the sentence” under 28 U.S.C. § 2255(a).
Section 2255 provides four grounds that justify relief for a federal prisoner who
challenges the fact or length of his detention: (1) whether “the sentence was imposed in
violation of the constitution or laws of the United States”; (2) whether the court was

2
As noted in the Petition and discussed in the Government’s Motion, the Report and Recommendation
references plea to the charge for which Petitioner was initially indicted, rather than the charge to which he
pleaded guilty; this Court adopted the Magistrate Judge’s Report and Recommendation as written.
However, Petitioner does not allege, nor does the record support, that the error resulted in an improper
sentence or otherwise affected Petitioner’s sentence in any way.

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without jurisdiction to impose such sentence; (3) whether the sentence was “in excess of
the maximum authorized by law”; or (4) whether the sentence is “otherwise subject to
collateral attack.” See Hill v. United States, 368 U.S. 424, 428 (1962). Despite this
seemingly broad language, “the range of claims which may be raised in a § 2255 motion
is narrow.” United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
The Court recognizes that a response from the government and a prompt hearing
are required “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief . . ..” 28 U.S.C. § 2255(b). Further, a hearing
must be granted unless the movant’s allegations, “when viewed against the record, either
fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to
warrant summary dismissal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984), cert. denied, 470 U.S. 1058 (1985) (citations omitted); Marrow v. United States,
772 F.2d 525, 526 (9th Cir. 1985). However, where a petitioner’s allegations, “viewed
against the record, do not state a claim for relief,” the Court may deny an evidentiary
hearing. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003)(quotation omitted).
A district court may summarily dismiss a § 2255 motion “[i]f it plainly appears from the
face of the motion and any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to relief . . ..” Rule 4(b), Rules Governing § 2255 Proceedings in
the United States District Court.
To withstand summary dismissal of a motion for relief under § 2255, a defendant
“must make specific factual allegations which, if true, would entitle him to relief on his

MEMORANDUM DECISION AND ORDER - 3

claim.” United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). Conclusory
statements, without more, are insufficient to require a hearing. United States v. Johnson,
988 F.2d 941, 945 (9th Cir. 1993).
ANALYSIS
As discussed below, the Court finds that Petitioner has failed to raise allegations
sufficient to warrant a hearing on issues before it. Thus, the Court will consider the
matter based on the record and pleadings before it.
1.

Waiver of Right to Petition Under § 2255
The government moves to dismiss Petitioner’s petition, arguing that, under the

terms of Petitioner’s plea agreement, his petition is waived. In the plea agreement,
Petitioner waived any right to appeal or collaterally attack his conviction or sentence, and
agreed that any appeal or collateral attack – whether under § 2255 or otherwise – would
be dismissed by virtue of the waiver. Plea Agreement, Dkt. 17 in criminal case at 12.
“[P]ublic policy strongly supports plea agreements,” including 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. However, “waiver of the right to appeal would not prevent an appeal where the
sentence imposed is not in accordance with the negotiated agreement.” Id. at 321. Also,
the Ninth Circuit has held that “a plea agreement that waives the right to file a federal
habeas petition . . . is unenforceable with respect to an [ineffective assistance of counsel]
claim that challenges the voluntariness of the waiver.” Washington v. Lampert, 422 F.3d

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864, 870 (9th Cir. 2005)(quoting United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4
(9th Cir. 2005)). This is consistent with holdings in other circuits. Lampert, 422 F.2d at
870-71(citations omitted); see e.g. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999).
In his motion under § 2255, Petitioner raises an ineffective assistance of counsel
claim. However, he does not explicitly challenge the voluntariness of the waiver in his
plea agreement (Dkt. 17). Rather, Petitioner argues that counsel misrepresented that the
government would drop its objection to the Pre-Sentence Investigation Report if
Petitioner agreed to sign the Joint Sentencing Stipulation (Dkt. 31), when in fact, the
prosecution had already dropped its objection. The Joint Sentencing Stipulation includes
no waiver of rights to appeal or petition under § 2255, thus the voluntariness of his
consent to the Stipulation is immaterial. Lampert, 422 F.2d at 870.
Petitioner also argues that counsel was ineffective in advising that a motion to
suppress Petitioner’s confession “would hurt us more than help us.” Petition, Dkt. 1 at 4.
Notably, Petitioner has not identified any impropriety in counsel’s actions in so advising
Petitioner. Moreover, under Lampert, Petitioner’s argument does not amount to a
challenge to the validity of his waiver.
Finally, Petitioner contends that counsel was ineffective in refusing to clear up an
error in the Magistrate Judge’s Report and Recommendation. Apart from the fact that
Petitioner has shown no prejudice from the error, counsel’s alleged inaction has no
bearing on the voluntariness of Petitioner’s waiver. The remainder of Petitioner’s claims

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allege violations of his rights under the Fifth and Fourteenth Amendments. Because none
of Petitioner’s claims go to the voluntariness of the waiver of his right to appeal or
petition under § 2255, the Court will grant the government’s motion to dismiss.
2.

Procedural Default
Even if Petitioner had not waived his right to petition under § 2255, the

Government argues that – at least with respect to the constitutional challenges –
Petitioner’s claims are procedurally defaulted. Although claims of ineffective assistance
of counsel may be raised under § 2255, the Supreme Court has said that collateral attack
through “[h]abeas review is an extraordinary remedy and ‘will not be allowed to do
service for an appeal.’” Reed v. Farley, 512 U.S. 339, 354, (1994)(quotation omitted); see
also United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981)(“Errors of law which
might require reversal of a conviction or sentence on appeal do not necessarily provide a
basis for relief under § 2255”). “[T]he concern with finality served by the limitation on
collateral attack has special force with respect to convictions based on guilty pleas.”
United States v. Timmreck, 441 U.S. 780, 784 (1979).
Where a defendant fails to raise claims on direct review, those claims are
procedurally defaulted unless he can demonstrate cause for and prejudice from the
procedural default, or actual innocence. United States v. Ratigan, 351 F.3d 957, 962
(2003)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). Petitioner here did not
file a direct appeal after his sentencing, and has neither challenged the Government’s
assertion of procedural default, nor argued actual innocence. Thus, regardless of his

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undisputed waiver of rights under § 2255 (Dkt. 17), Petitioner’s constitutional claims are
procedurally defaulted, and are dismissed accordingly.
3.

Government’s Remaining Arguments
Although the Government has raised additional bases for dismissal, the Court

finds that the grounds already addressed more than adequately support the Government’s
motion. Thus, the remaining arguments need not be considered. For the above stated
reasons, the Government’s motion will be granted, and the petition under § 2255
dismissed.
ORDER
IT IS ORDERED THAT:
1.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Dkt. 1)

under § 2255 is DENIED, and this matter is DISMISSED in its ENTIRETY.
2.

The Government’s Motion to Dismiss the Petition (Dkt. 6) is GRANTED.

3.

Judgment shall be entered separately.

DATED: April 23, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court 

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