Quiring v. USA

Filing 8

MEMORANDUM DECISION AND ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for hearing 5 is DENIED. IT IS FURTHER ORDERED, that the motion to vacate, set aside, or correct sentence 1 is DENIED , and this case is DISMISSED. The Clerk is directed to close this case. IT IS FURTHER ORDERED, that a Certificate of Appealability will not issue. IT IS FURTHER ORDERED, that if the Petitioner wishes to proceed to the United States Court of Appea ls for the Ninth Circuit, Petitioner must file a notice of appeal in this Court within 30 days after entry of this Order. 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TRAVIS QUIRING,

Civil Case No. 2:17-CV-116-BLW
Criminal Case No. 2:15-CR-113-BLW

Movant,
v.
UNITED STATES OF AMERICA

MEMORANDUM DECISION AND
ORDER AND DENIAL OF
CERTIFICATE OF
APPEALABILITY

Respondent.

INTRODUCTION
The Court has before it a motion to vacate Quiring’s sentence and a request for a
hearing on that motion. The motions are fully briefed and at issue. For the reasons
explained below, the Court will deny both motions.
LITIGATION BACKGROUND
Quiring pled guilty to a counterfeiting charge and was sentenced to 24 months to
run consecutively to his sentence in the State court. He is currently in State custody that
is not set to expire until 2026. On March 10, 2017, Quiring filed a motion under 28
U.S.C. § 2255 to vacate, set aside or correct sentence, claiming that (1) he did not waive
speedy trial; (2) he signed a plea agreement and the prosecutor told him that his federal
sentence would be concurrent with his state sentence; and (3) he has completed his
classes and wants leniency. He also requested a hearing on that motion.
STANDARD OF REVIEW

Memorandum Decision & Order – page 1

Under § 2255, “a district court must grant a hearing to determine the validity of a
petition brought under that section, “[u]nless the motions and the files and records of the
case conclusively show that the prisoner is entitled to no relief.” U.S. v. Blaylock, 20
F.3d 1458, 1465 (9th Cir. 1994). In determining whether a § 2255 motion requires a
hearing, “[t]he standard essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief could be granted.” U.S. v. Withers,
638 F.3d 1055, 1062 (9th Cir. 2011). A district court may dismiss a § 2255 motion based
on a facial review of the record “only if the allegations in the motion, when viewed
against the record, do not give rise to a claim for relief or are palpably incredible or
patently frivolous.” Id. at 1062–63.
ANALYSIS
Speedy Trial Claim
Quiring complains that the Court “took 10 mo. to get me to sentencing” and
alleges that he “never signed or explicitly waived my right to speedy trial.” See Petition
(Dkt. No. 1) at ¶ 14. Quiring made his initial appearance on May 20, 2015. A week later,
on May 27, 2015, the Court granted a motion to continue filed by Quiring’s co-defendant,
continuing the trial for both defendants until October 5, 2015. About two months before
that trial date, on July 28, 2015, Quiring pled guilty.
This time-line shows conclusively that there was no speedy trial violation – at
most only a few days had run off the speedy trial clock when Quiring pled guilty. While
Quiring complains that he never consented to his co-defendant’s motion to continue the
trial, that argument must be rejected. Under the Speedy Trial Act, 18 U.S.C. §
Memorandum Decision & Order – page 2

3161(h)(6), excludable time exists for “a reasonable period of delay when the defendant
is joined for trial with a co-defendant as to whom the time for trial has not run and no
motion for severance has been granted.” As the continuance order makes clear, the
finding of excludable time applied to both Quiring and his co-defendant. See Order (Dkt.
No. 28 in U.S. v. Quiring Case No. 2:15-CR-113-BLW). Quiring’s speedy trial
allegations fail to state a claim and must be dismissed.
Promise for a Concurrent Sentence
Quiring alleges that “I signed a plea agreement to run state and federal time
concurrent” and further alleges that “[t]he prosecutor and I had an agreement for
concurrent sentencing.” Petition, supra at ¶ 14. But the Plea Agreement signed by
Quiring contains no promise for a concurrent sentence – it says nothing that could even
be construed as such a promise. Indeed, that Agreement contains a provision, just above
Quiring’s signature, stating that ‘[n]o other promises or inducements have been made to
me, directly or indirectly, by any agent of the Government, including any Assistant
United States Attorney, concerning the plea to be entered in this case.” See Plea
Agreement (Dkt. No. 32 in U.S. v. Quiring, supra). During the plea hearing, Quiring
confirmed that the signature on the plea agreement was his. He was then asked if there
were any promises or inducements made to him other than those contained in the plea
agreement to induce him to plead guilty, and he answered that there were none. This
argument must be rejected.
Completion of Classes

Memorandum Decision & Order – page 3

Quiring seeks leniency on the ground he has completed his substance abuse and
other classes. While laudable, this is not a ground for relief under § 2255.
Certificate of Appealability
In the event Quiring files a notice of appeal from the Order and Judgment in this
case, the Court now evaluates the claims within the Petition for suitability for issuance of
a certificate of appealability (COA), which is required before a habeas corpus appeal can
proceed. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rule 11(a), Rules Governing Section 2254 Cases.
A COA will issue only when a petitioner has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has
explained that, under this standard, a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When a court has dismissed the petition or claim on the merits, the petitioner must
show that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. The COA standard
“requires an overview of the claims in the habeas petition and a general assessment of
their merits,” but a court need not determine that the petitioner would prevail on appeal.
Miller-El, 537 U.S. at 336.
Here, the Court has denied Quiring’s claims on the merits. The Court finds that
additional briefing on the COA is not necessary. Having reviewed the record, the
Memorandum Decision & Order – page 4

Court concludes that reasonable jurists would not find debatable the Court’s decision on
the merits of the claims raised in the Petition and that the issues presented are not
adequate to deserve encouragement to proceed further. As a result, the Court declines to
grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth Circuit,
Quiring must file a notice of appeal in this Court within thirty (30) days after entry of
this Order, and he may file a motion for COA in the Ninth Circuit Court of Appeals,
pursuant to Federal Rule of Appellate Procedure 22(b)(2).
Conclusion
For the reasons explained above, the claims in the petition fail to state a claim on
their face, and a hearing would serve no purpose. The Court will therefore deny the
motion for a hearing and dismiss the petition. The Court will also deny a Certificate of
Appealability. The Court will enter a separate Judgment as required by Rule 58(a).
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for hearing
(docket no. 5) is DENIED.
IT IS FURTHER ORDERED, that the motion to vacate, set aside, or correct
sentence (docket no. 1) is DENIED, and this case is DISMISSED. The Clerk is directed
to close this case.
IT IS FURTHER ORDERED, that a Certificate of Appealability will not issue. If
Petitioner files a timely notice of appeal, the Clerk of Court shall forward a copy of the
Memorandum Decision & Order – page 5

notice of appeal, together with the Order, and the separate Judgment, to the United States
Court of Appeals for the Ninth Circuit.
IT IS FURTHER ORDERED, that if the Petitioner wishes to proceed to the United
States Court of Appeals for the Ninth Circuit, Petitioner must file a notice of appeal in
this Court within thirty (30) days after entry of this Order, and he may file a motion for a
Certificate of Appealability in the Ninth Circuit Court of Appeals, pursuant to Federal
Rule of Appellate Procedure 22(b)(2).

DATED: February 7, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Memorandum Decision & Order – page 6