Mendenhall v. USA

Filing 44

MEMORANDUM DECISION AND ORDER denying Motions 11 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 25 , 39 ; finding as moot Motions 14 and 29 ; granting Motions 4 and 27 . Levi Wayne Mendenhalls Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ.Dkt. 1 and Crim. Dkt. 49) is DISMISSED in its entirety. No certificate of appealability shall issue. Signed by Judge Edward J. Lodge. (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

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

Case No. 3:12-cv-00432-EJL
3:10-cr-00044-EJL

v.
LEVI WAYNE MENDENHALL,

MEMORANDUM DECISION AND
ORDER

Defendant/Movant.

INTRODUCTION
Pending before the Court is Levi Wayne Mendenhall’s (“Mendenhall”) Motion to
Vacate Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) and the Government’s Motion to
Dismiss (Civ. Dkt. 4). Having reviewed the motions, Mendenhall’s Response to Motion
to Dismiss (Civ. Dkt. 9), the Government’s Reply (Civ. Dkt. 34), Mendenhall’s SurReply (Civ. Dkt. 38), and the underlying criminal record, the Court enters the following
Order granting the Motion to Dismiss and dismissing the § 2255 Motion for the reasons
set forth below. Also pending before the Court are numerous motions which the Court
either denies or finds moot for the reasons set forth below.

MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL BACKGROUND
On February 17, 2010, Mendenhall was charged in a six count Indictment with
transportation of explosives by a prohibited person in violation of 18 U.S.C. §§842(i)(1)
and 844(a); possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841,
5845(f), 5861, and 5871; two counts of transportation of explosives in violation of 18
U.S.C. § 844(d); malicious use of explosives in violation of 18 U.S.C. § 844(i); and
stalking in violation of 18 U.S.C. § 2261A(1). Indictment, Crim. Dkt. 1. The charges
arose out of an incident occurring on or about September 4, 2009, in which Mendenhall
placed an explosive or destructive device on the hood of his ex-wife’s friend’s vehicle at
whose home his ex-wife was staying. Roger Peven and Kailey Moran were appointed to
represent Mendenhall.
On May 10, 2011, Mendenhall entered a Plea Agreement with the Government
under which he agreed to plead guilty to a Superseding Information in return for
dismissal of the Indictment and certain sentencing recommendations. The Superseding
Indictment charged him with one count of transportation of explosives with intent to kill,
injure, or intimidate in violation of 18 U.S.C. § 844(d); one count of stalking in violation
of 18 U.S.C. § 2261A; and one count of use of explosives to commit a felony in
violation of 18 U.S.C. § 844(h). Plea Agreement, Crim. Dkt. 34. On May 16, 2011, the
contemplated Superseding Information was filed containing the charges to which
Mendenhall agreed to plead guilty. Superseding Information, Crim. Dkt. 37. On May
MEMORANDUM DECISION AND ORDER - 2

17, 2011, Mendenhall entered his plea to the Superseding Information before the Court.
As part of the Plea Agreement, the parties agreed that the final offense level
calculation was 33 for Counts One and Two with a resulting guideline range of 168-210
months, and a consecutive sentence of 120 months on Count Three pursuant to statute
(for a total guideline range of 288-330 months). Plea Agreement at 9. The parties
further agreed that the offense level reflected a three-level upward departure to reflect
the dangerous nature of the destructive device, the manner in which it was used, and the
extent to which it endangered others. Id. The parties also agreed to a recommended
sentence of 300 months or twenty-five years. Id.
Defense counsel had no objections to the Presentence Report but noted a number
of corrections or clarifications and filed a sentencing memorandum addressing the 18
U.S.C. § 3553(a) sentencing factors for the Court’s consideration to justify the
recommended sentence. Objections and Sentencing Memorandum, Crim. Dkt. 41.
Attached to the Sentencing Memorandum was the psychological report prepared by
licensed neuropsychologist Dr. Craig W. Beaver that addressed Mendenhall’s various
psychological and mental health issues. Psychological Report, Crim. Dkt. 41-2. The
Government likewise filed a Sentencing Memorandum in support of the agreed upon
sentence. Sentencing Memorandum, Crim. Dkt. 42.
On August 9, 2011, the Court accepted the parties’ and the Probation Officer’s
sentencing recommendation and sentenced Mendenhall to a term of imprisonment of 90
MEMORANDUM DECISION AND ORDER - 3

months on Count One, 90 months on Count Two, and 120 months on Count Three all
sentences to be served consecutively for a total of 300 months, and Judgment was
entered on August 18, 2011. Min. Entry, Crim. Dkt. 46; Judgment, Crim. Dkt. 47.
Mendenhall did not appeal his conviction or sentence. On August 20, 2012, he timely
filed the pending § 2255 Motion. Mendenhall has filed several miscellaneous motions
since that time which the Court will address prior to considering the § 2255 Motion and
Motion to Dismiss.
REVIEW OF MISCELLANEOUS MOTIONS
The Court will address Mendenhall’s various pending motions in the order in
which they were filed. The Court notes that the Government has filed one motion in
response to certain of Mendenhall’s motions and will consider that motion in addressing
Mendenhall’s motions.
1.

Motion for Appointment of Counsel (Civ. Dkt. 11)

Mendenhall moves for counsel in light of Martinez v. Ryan and requests an
“appointed” counsel who “must only assist under Petitioner’s Power of Attorney.”
Motion for Counsel, Crim. Dkt. 11. He makes this specific request “due to the apparent
collusion oriented conditions” encountered in his criminal case. Id. The Court
considered this motion prior to addressing the Motion to Dismiss to determine whether
counsel should be appointed for Mendenhall.
The right to counsel “extends to the first appeal of right, and no further.”
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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). There is no constitutional right to
counsel for a collateral attack on a conviction. Id. However, once a § 2255 motion is
filed, the Court must appoint counsel in certain circumstances. See Rules 6 and 8(c) of
the Rules Governing Section 2255 Proceedings. Even if not required, the Court has the
discretion to appoint counsel for indigent prisoners who are seeking relief under § 2241
or § 2255. See 18 U.S.C. § 3006A(a)(2)(B). Relevant considerations are the likelihood
of success on the merits, the complexities of the issues involved, and the ability of the
prisoner to present his claims. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Here, the Court has not made a determination pursuant to Rule 6 that discovery is
needed to resolve the issues raised by Mendenhall and that appointment of counsel is
necessary for effective discovery. Nor has it made a determination under Rule 8 that an
evidentiary hearing is required to resolve those issues. Furthermore, after considering
the likelihood of success on the merits, the complexity of the issues Mendenhall has
raised, and Mendenhall’s ability to present his claims, the Court finds that appointment
of counsel under § 3006A(a)(2)(B) is not warranted. The Court takes particular note of
Mendenhall’s considerable ability to state his claims, cite case law, and present legal
arguments. Accordingly, Mendenhall’s Motion for Appointment of counsel is denied.
2.

Motion to Strike Motion for Order Concerning Attorney-Client
Privilege and Motion to Continue Response Deadline (Civ. Dkt. 14)

Mendenhall’s Motion to Strike is essentially a response to the motion he wishes
the Court to strike. The Court considered the Motion to Strike in granting the
MEMORANDUM DECISION AND ORDER - 5

Government’s motion. See Order, Civ. Dkt. 33. Accordingly, the Motion to Strike is
moot.
3.

Motions for Issuance of Subpoena (Civ. Dkts. 15-23)

Mendenhall seeks to subpoena several individuals including Government and
defense counsel, his brother, BATF Special Agent Todd Smith, Dr. Craig Beaver, Chief
Marshal Joe Newman, and Gabriel Caballero, all to address the “numerous questions
regarding procedures performed by the government and the legality of several
documents.” See, e.g., Motion for Issuance of Subpoena, Civ. Dkt. 15. The
Government moved to dismiss or deny the requested subpoenas and to dismiss
interrogatories submitted to the Government by Mendenhall on the grounds that they are
premature. Govt. Mot., Civ. Dkt. 27. The Court agrees. The Court has not authorized
discovery and Mendenhall did not submit the interrogatories to the Court together with
reasons for requesting discovery as required by Rule 6. Furthermore, the Court has not
determined that an evidentiary hearing will be required to resolve the issues.
Accordingly, not only is it premature to subpoena witnesses, it would be the function of
appointed counsel, not Mendenhall, to subpoena witnesses if the Court were to grant an
evidentiary hearing. Accordingly, the Government’s motion is granted, and
Mendenhall’s motions for issuance of subpoena are denied.
4.

Motion to Take Judicial Notice (Civ. Dkt. 25)

What has been docketed as a Motion to Take Judicial Notice is actually entitled
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“Nunc Pro Tunc Recission of Signatures.” In this document, Mendenhall appears to be
requesting recision of his signature on the Plea Agreement because “fraud is involved”
and because of the “Ex Post Facto nature of the ‘superseding information.’” He also
appears to contend that Dr. Beaver’s report is grounds for finding him incompetent to
enter a plea.
Mendenhall’s Motion to Take Judicial Notice is procedurally improper.
Nevertheless, the Court finds that because Mendenhall has essentially raised these
issues in his response to the Motion to Dismiss, this motion, to the extent that it is a
motion, is moot.
5.

Motion to Determine Whether Evidentiary Hearing is Required (Civ.
Dkt. 29)

Mendenhall formalized the request for an evidentiary hearing that he made in his
“Response to the Government’s Response.” He also noted the Government’s failure to
respond to the interrogatories he submitted.
This motion is moot given that the Court will make a determination as to the
necessity of holding an evidentiary hearing in accordance with the directives of Rule 8 in
its resolution of the Government’s Motion to Dismiss. The fact that the Government has
not responded to the interrogatories is irrelevant given the Court’s ruling above.
6.

Notices of Default for Failure to Respond (Civ. Dkts. 30-32)

Although entitled and docketed as notices of default, Mendenhall requests entry
of default and summary judgment entered in his favor due to the Government’s failure to
MEMORANDUM DECISION AND ORDER - 7

respond to or rebut declarations or affidavits he submitted in connection with his Motion
to Strike, his Nunc Pro Tunc Recision of Signatures, and his Affidavit in Support of
Motion for Issuance of Subpoena. To the extent that the notices are construed as
motions, they are denied both as being procedurally improper and because default
judgment is not available in habeas proceedings. See Gordon v. Duran, 895 F.2d 610,
612 (9th Cir. 1990) (citing Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984)). See also
Quinones-Torres v. United States, 240 Fed.Appx. 876, 878 (1st Cir. 2007) (applying
Gordon to a § 2255 proceeding).
7.

Motion to Quash (Civ. Dkt. 39)

Mendenhall moves to quash affidavits as part of his “Response to Recent
Government’s Reply.” Specifically, he moves to quash the affidavits attached to the
Government’s Reply to Petitioner’s Response to the Motion to Dismiss 28 U.S.C.
§ 2255 Petition (Civ. Dkt. 34). One is signed by defense counsel Roger Peven, and the
other is signed by C. Todd Smith who accompanied Government counsel to
Mendenhall’s brother’s home to serve a trial subpoena and play recordings of phone
calls between Mendenhall and his brother. Attachments A & B, Civ. Dkt. 34-1.
Mendenhall seeks to quash the affidavits on the grounds that (1) they are not
labeled as affidavits, (2) they are not signed under penalty of perjury or any citation to
28 U.S.C. § 1746, (3) they are signed in their individual capacities only, (4) they are not
signed as “lawyers” with a bar number quoted, and (5) there is no affidavit of co-defense
MEMORANDUM DECISION AND ORDER - 8

counsel Kailey Moran despite the fact that the order of the Court directed her to make
herself available and “to assist in the preparation of an affidavit of counsel concerning
[her] representation of Petitioner.” Motion to Quash at 7. He characterized the
noncompliance with the Order as being “tantamount to contemptuous behavior.” Id.
Mendenhall’s Motion to Quash is denied. The lack of a title is not significant, the
documents indicate that each affiant was duly sworn and stating under oath, there was no
need to sign in any other capacity, and there was no requirement that Roger Peven sign
as a lawyer and include his bar number. Finally, the Order to which Mendenhall refers
did not require Ms. Moran to submit an affidavit. It merely directed her to make herself
available and assist in the preparation of an affidavit. That the Government ultimately
decided not to submit an affidavit from her does not warrant a finding of contempt.
Mendenhall’s Motion to Quash is denied.
REVIEW OF § 2255 MOTION
Mendenhall alleges five grounds of ineffective assistance of counsel at pretrial,
plea, and sentencing stages of his prosecution. More specifically, he alleges that
counsel’s performance was deficient based on: (1) failure to move for dismissal of
several counts in the Indictment on double jeopardy grounds, (2) failure to object to the
dangerous weapon enhancement (U.S.S.G. § 5K2.6) on double counting grounds,

MEMORANDUM DECISION AND ORDER - 9

(3) failure to object to criminal history calculation, (4) failure to object to imposition of
consecutive sentences, and (5) failure to move for downward departure based on
diminished capacity.
The Court notes that Mendenhall opens his § 2255 Motion with the statement that
he “wishes to make clear that he is not seeing to have his plea vacated” and that he “is
only challenging his sentence and not the underlying convictions.” § 2255 Motion at 3
(emphasis in original). He “has no desire to go back to square one but rather is merely
arguing for the sentence that he believes he had a legal right to receive.” Id. He closes
with recognition that he “belongs in jail,” that “his actions were reprehensible,” and that
he has a “troubling history of arson/explosives-related behavior.” § 2255 Motion at 20.
However, he believes he can be rehabilitated with proper mental health treatment.
Therefore, he requests resentencing absent the alleged errors, a departure based on
diminished capacity, and commitment to a psychiatric unit at a Federal Medical Center.
Id. at 20-21.
The Government moves to dismiss on the grounds of waiver or, alternatively,
failure to satisfy the Strickland standard of deficient performance and prejudice. In his
Response to the Motion to Dismiss, Mendenhall raises additional claims: (1) that his
attorneys were ineffective for not raising competency issues; (2) that his attorneys
“pressured [him] into pleading guilty based upon conflict;” (3) that the Superseding
Information violated his Fifth Amendment rights, the ex post facto clause of the U.S.
MEMORANDUM DECISION AND ORDER - 10

Constitution, constituted entrapment, and was filed as a result of prosecutorial
misconduct; (4) that the Superseding Information was charged inappropriately; and (5)
that the District Court and prosecution violated Rule 11 of the Federal Rules of Criminal
Procedure because they did not advise him of his sentencing range. The Government
urges dismissal of these claims as untimely, procedurally defaulted, and lacking in merit.
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.”
MEMORANDUM DECISION AND ORDER - 11

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 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.
2.

Ineffective Assistance of Counsel
A defendant is entitled to effective assistance of counsel at the plea and

sentencing stages of a criminal prosecution as well as at trial. United States v. Leonti,
326 F.3d 1111, 1116-17 (9th Cir. 2003).
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).
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).
MEMORANDUM DECISION AND ORDER - 12

The Strickland two-part test is also applicable to a case in which a defendant
contends that his counsel was constitutionally inadequate during the guilty plea process.
Hill v. Lockhart, 474 U.S. 54, 58 (1985). To show prejudice in the guilty plea context, a
defendant must show “that there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 58-59. However, part of the prejudice determination is the likelihood a more
favorable outcome at trial. Id.
DISCUSSION
This case arises from Mendenhall’s purchase from retail stores in Eastern
Washington components for a destructive device made out of PVC pipe and containing
explosive powder, razor blades, and BBs, and his subsequent transportation of that
device to the State of Idaho with intent to use it to kill or injure his estranged wife. Plea
Agreement at 3-4. Mendenhall placed the device in the bottom of a box and wired it so
that it would explode when an item was removed from the box which he then left on the
hood of his estranged wife’s friend’s automobile while she was staying overnight at the
friend’s home. Id. The explosive device was disarmed by the Spokane Bomb Squad
after his estranged wife’s friend became suspicious of the package. Id.
Underlying Mendenhall’s claims is the contention that if counsel’s representation
had not been deficient, his sentence exposure would not have been 100 years or more
and the 15-year sentence agreed to by the prosecutor and defense counsel would not
MEMORANDUM DECISION AND ORDER - 13

have been rejected by the Department of Justice. In other words, he contends that the
Department of Justice rejected the 15-year sentence because it appeared to be too
lenient in the face of a potential 100-year sentence.
1.

Waiver
A defendant may waive his statutory right to file a § 2255 motion challenging his

sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508
U.S. 979 (1993). However, a plea agreement must expressly state that the right to bring
a § 2255 motion is waived in order for the waiver to be valid. United States v. Pruitt,
32 F.3d 431 (9th Cir. 1994) (finding that language in plea agreement that “he will not
appeal whatever sentence is imposed by the court” did not constitute a waiver of the
right to bring a § 2255 motion). “The sole test of a waiver’s validity is whether it was
made knowingly and voluntarily.” United States v. Anglin, 215 F.3d 1064, 1068 (9th
Cir. 2000). The scope of such a waiver is demonstrated by the express language of the
plea agreement. Id. Nevertheless, even an express waiver may not bar an ineffective
assistance of counsel claim challenging the knowing and voluntary nature of the plea
agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d
1149, 1156 n.4 (9th Cir. 2005).
Here, the Plea Agreement did expressly state that the right to bring a § 2255
motion was waived:
A.
In exchange for this Agreement, and except as
provided in subparagraph B, the defendant waives any right
MEMORANDUM DECISION AND ORDER - 14

to appeal or to collaterally attack the conviction, entry of
judgment, and sentence. The defendant acknowledges that
this waiver shall result in the dismissal of any appeal or
collateral attack the defendant might file challenging the plea,
conviction or sentence in this case. . . .
B.
Notwithstanding subparagraph A, the defendant shall
retain the right to file one direct appeal only if the sentence
imposed by the District Court exceeds 330 months in prison.
Notwithstanding subparagraph A, the defendant may
file one habeas petition (motion under 28 U.S.C. § 2255)
for ineffective assistance of counsel only if: (1) the motion is
based solely on information not known to the defendant at
the time the District Court imposed sentence; and (2) in the
exercise of reasonable diligence, the information could not
have been known by the defendant at that time.
Plea Agreement at 9 (emphasis added).
Mendenhall has alleged nothing in his § 2255 Motion that was not known to him
or that could not have been known by him in the exercise of reasonable diligence at the
time the Court imposed sentence. The Plea Agreement clearly spelled out the
agreements, concessions, and expectations of the parties: that Mendenhall would plead
guilty to the three-count Superseding Information in return for dismissal of the Indictment
which included dismissal of all of the § 924 charges, that the sentences on each count
would run consecutively, that the parties would jointly recommend a sentence of 300
months based on the application of certain guideline cross-references and an upward
departure under USSG § 5K2.6, and that defense counsel would not file any motions for
downward departure. Plea Agreement at 1, 7-9. Mendenhall signed the Plea Agreement
MEMORANDUM DECISION AND ORDER - 15

indicating that he had read and carefully reviewed every provision with his attorney and
that he understood the agreement’s affect on his potential sentence. Id. at 14.
At the change of plea hearing, Mendenhall was placed under oath. Plea Tr. at 3,
Dkt. 4-1. The Court then conducted a very thorough Rule 11 hearing during which
Mendenhall responded under oath to the Court’s questions. He agreed that he
understood his attorney’s advice and had adequate time with his attorney prior to the
hearing. Id. at 4. He stated that he had read and reviewed the Superseding Information
with counsel and understood the charges, that he understood that the sentences would be
imposed consecutively, that he had signed the Plea Agreement and had discussed each
and every paragraph with his attorney, that he understood that there would be no
downward departure, that he agreed with the guideline calculations contained in the Plea
Agreement, that he understood there was a provision for an upward departure, and that
he had waived his right to appeal or bring a § 2255 motion absent certain limited
circumstances. Plea Tr. at 5, 11, 16, 17, 19-20.
Based on the above, the Court finds that Mendenhall unequivocally waived his
right to file a § 2255 motion based on circumstances known to him at sentencing. The
Court further finds that the bases of all of his claims were known to him at the time of
sentencing. Moreover, he did not file a direct appeal challenging his guilty plea or claim
in his § 2255 Motion that the Rule 11 colloquy was inadequate, that his guilty plea was
involuntary, or that he is actually innocent of the charges to which he pled guilty.
MEMORANDUM DECISION AND ORDER - 16

Accordingly, the Court finds that Mendenhall has waived his right to file the within
§ 2255 motion alleging the five grounds of ineffective assistance of counsel.
The Court is cognizant of the fact that the waiver may not bar an ineffective
assistance of counsel claim challenging the knowing and voluntary nature of his plea
agreement or the voluntariness of the waiver itself. However, Mendenhall’s § 2255
Motion contains no such challenge. In any event, statements made in open court at the
time of a plea carry a strong presumption of verity and are entitled to great weight.
Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (citing Blackledge v. Allison, 431
U.S. 63, 73-74 (1977); see also U.S. v. Kazcynski, 239 F.3d 1108, 1114-15 (9th Cir
2001) (“substantial weight” must be given to in-court statements). Even though that
presumption is not necessarily an insurmountable barrier to an evidentiary hearing, the
“subsequent presentation of conclusory allegations unsupported by specifics is subject
to summary dismissal, as are contentions that in the face of the record are wholly
incredible.” Id. (citations omitted).
The Court is not persuaded by Mendenhall’s newly raised claims in his Response
to the Government’s Motion to Dismiss to the effect that he was pressured to enter the
Plea Agreement and that he was incompetent at the time he entered his plea. Not only
are these claims time barred as discussed below, but they are not credible in the face of
the record. It is readily apparent that this claim, which represents a 180-degree turn from

MEMORANDUM DECISION AND ORDER - 17

his position in his § 2255 Motion, was advanced only because the Government raised
the waiver issue.
Although the Court finds the new claims to be untimely, it notes with respect to
the incompetence claim, as argued by the Government, Mendenhall cannot establish
deficient performance in failing to seek a competency hearing unless he first
demonstrates that “he was indeed incompetent to plead guilty.” United States v.
Howard, 381 F.3d 873, 878 (9th Cir. 2004) (citation omitted). He cannot meet this
burden by speculatively asserting certain portions of the report.
“An individual is competent to stand trial if ‘he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding – and . . . he
has a rational as well as a factual understanding of the proceedings against him.’”
Boyde v. Brown, 404 F.3d 1159, 1165 (9th Cir. 2005) (citing Dusky v. United States,
362 U.S. 402, 402 (1960)). “[T]here is no difference between the level of competence
needed to plead guilty and that to stand trial.” United States v. Mendez-Sanchez, 563
F.3d 935, 948 (9th Cir. 2009) (citations omitted). There is nothing in the record to
suggest that Mendenhall lacked the ability to consult with his lawyer or understand the
proceedings. Indeed, the plea colloquy shows otherwise. Counsel did not believe he
had a reasonable basis to raise the issue of competency based on Dr. Beaver’s report.
Affidavit of Roger Peven, Dkt. 34-1 at 2-3. Dr. Beaver’s report did not question
Mendenhall’s competence. In fact, the report even assumed the possibility of his
MEMORANDUM DECISION AND ORDER - 18

entering a plea agreement. Dr. Beaver Report, Dkt. 9-7 at 16. Neither Government
counsel nor the Court observed evidence of incompetence. The fact that neither defense
counsel nor the Court had doubt about Mendenhall’s competence is most significant.
See Boyde, 404 F.3d at 1167 (stating “perhaps the most telling evidence that Boyde was
competent at trial is that neither defense counsel – who would have had every incentive
to point out that his client was incapable of assisting with his defense – nor the trial
court even hinted that Boyde was incompetent.”)
2.

New Claims
In addition to now claiming ineffective assistance of counsel regarding his plea,

Mendenhall also raised numerous other new claims in his Response. He asserts that the
Superseding Information violated his Fifth Amendment rights, the ex post facto clause of
the U.S. Constitution, constituted entrapment, and was the result of prosecutorial
misconduct; that the Superseding Information was charged inappropriately; and that the
Court and Government violated Rule 11 because they did not advise him of a sentencing
range.
Motions filed pursuant to 28 U.S.C. § 2255 must be filed within one year of “the
date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). In a
case such as the present one, where there was no direct appeal, a judgment of
conviction becomes final 14 days after the district court enters judgment. See United
States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 19

Judgment was entered against Mendenhall on August 18, 2011. Therefore, his
conviction became final on September 1, 2011, and the deadline for filing a § 2255
motion became September 1, 2012. Although Mendenhall’s initial § 2255 Motion was
timely, the claims raised in the Response dated December 27, 2012 and filed January 2,
2013, are clearly untimely and thus procedurally defaulted. The argument regarding the
voluntariness of his plea was clearly raised to rebut the Government’s claim of waiver
and directly contrary to his claims in his § 2255 Motion that he was not seeking to
withdraw his plea. Read together with his sur-Reply, Mendenhall also appears to now
contend that he was incompetent at the time he committed the offenses with which he
was charged.
Mendenhall’s attempt to introduce these new issues fails. An otherwise untimely
claim is not saved by Rule 15(c) of the Federal Rules of Civil Procedure unless the new
claim is “tied to a common core of operative facts” and thus relates back to a claim in
the § 2255 Motion. See Mayle v. Felix, 545 U.S. 644, 664 (2005). Mendenhall’s new
claim that his plea was involuntary or that he was incompetent to enter the plea is
directly contradictory to his claim that he was not trying to set aside his plea and thus is
necessarily not tied to a common core of operative facts. Indeed, it is based on an
entirely different set of facts.
The Court has no doubt that had the Government addressed the merits of his
claims without claiming waiver, Mendenhall would not have made these assertions. The
MEMORANDUM DECISION AND ORDER - 20

Government’s assertion of waiver cannot open the door so to speak to alleging new
claims that were neither raised before this Court or on appeal.
Mendenhall’s various other claims asserted in the Response and the assertion that
perhaps he was not competent at the time of the offense are even less tied to the claims
in the § 2255 Motion and therefore do not relate back to the timely filed § 2255 Motion.
Accordingly, the Court will dismiss any new claims included in the Response and find
the waiver valid.
3.

Timely Claims in § 2255 Motion
Even if Mendenhall’s initial claims were not waived, they would fail on the merits

as briefly discussed below.
A.

Failure to Move for Dismissal of Several Counts in the Indictment on
Double Jeopardy Grounds

Mendenhall contends that Count Five which charged malicious use of explosives
in an attempt to damage or destroy a vehicle should have been dismissed because the
offense conduct for Count Five was fully encompassed in Count Four which charged
transportation of explosives with intent to damage or destroy a vehicle. He also
contends that Counts 7 and 8, which charged that he used or carried a destructive device
in relation to the transportation of that destructive device, should have been dismissed
because “prosecution for carrying a destructive device in relation to carrying a
destructive device would be barred by the Double Jeopardy Clause of the Fifth
Amendment.” § 2255 Motion at 9. Finally, Mendenhall contends that Count Nine
MEMORANDUM DECISION AND ORDER - 21

should have been dismissed because it “essentially charged that Mendenhall used a
destructive device in relation to using a destructive device.” Id. He does not challenge
Count Ten.
Mendenhall claims prejudice on two grounds. First, he argues that if the counts
above had been dismissed, his sentence would have been at least five years less than
what he received because he would have faced only a five-year rather than a ten-year
consecutive sentence on the one remaining § 924(c) charge. Second, he argues that if
the counts violative of the double jeopardy clause had been dismissed, his sentence
exposure would have been 20 years, 8 months, and the 15-year plea deal would not have
looked so lenient and would have been accepted. He requests resentencing to a term of
imprisonment not to exceed 15 years as contemplated in the original plea offer.
In evaluating an ineffective assistance of counsel claim, a court may consider the
performance and prejudice components of the Strickland test in either order.
Strickland, 466 U.S. at 697. Furthermore, the Court need not consider one component if
there is an insufficient showing of the other. Id. Indeed, a court is encouraged to decide
an ineffective assistance of counsel claim on prejudice grounds if it is “easier” to
dispose of it on those grounds. Id.
Here, Mendenhall’s claim is readily disposed of on the grounds of lack of
prejudice. First, he is mistaken that he would have faced only a 5-year consecutive
sentence on the remaining § 924(c) charge. Rather, the remaining § 924(c) count would
MEMORANDUM DECISION AND ORDER - 22

have carried a mandatory 30-year sentence given that the offense involved a destructive
device. See 18 U.S.C. § 924(c)(1)(B)(ii). Defense counsel and the Government
negotiated a sentence of 300 months or 25 years based on dismissal of all § 924(c)
charges. The Court followed their recommendation. Second, to suggest that dismissal
of the other § 924(c) charges would have made the Government more amenable to a 15year sentence is highly speculative with no support in the record.
Although the lack of prejudice obviates the need to address the alleged
ineffectiveness, the Court notes that the Ninth Circuit and every other circuit that has
addressed the issue have held that multiple § 924(c) convictions arising for the same
course of conduct are permissible under the statute. United States v. Rahim, 431 F.3d
753, 757-58 (citations omitted). As for Mendenhall’s specific double jeopardy claim,
Rahim makes clear that as long as each count “requires proof of an additional fact which
the other does not,” multiple § 924(c) conviction are permissible under the Double
Jeopardy Clause. Id. at 758 (citing Blockburger v. United States, 284 U.S. 299, 304
(1932)).
B.

Failure to Object to the Dangerous Weapon Enhancement (U.S.S.G.
§ 5K2.6) on Double Counting Grounds

Relying on Application Note 3 of USSG § 2K2.4, Mendenhall contends that
counsel’s performance was deficient when they failed to object to the dangerous weapon
enhancement on the grounds that application of the enhancement or departure resulted in
double counting and resulted in an approximately 4-year increase in his sentence “for the
MEMORANDUM DECISION AND ORDER - 23

same instance of using the same weapon to commit the same federal felony.” § 2255
Motion at 13. Furthermore, he contends that the resulting incorrect guideline calculation
“also likely resulted in the 15-year plea deal being rejected.” Id.
The Court notes that Mendenhall is actually referring to Application Note 4 which
provides that there should be no weapons enhancement applied as a special offense
characteristic to an underlying offense where there is a sentence imposed under § 2K2.4,
the guideline pertaining to the use of firearms or explosives. See USSG § 2K2.4,
comment. (n.4). There was no weapons enhancement in any of the underlying offenses.
Rather, the increase was the result of the application of an upward departure under
§ 5K2.6. The departure was clearly applicable based on the dangerousness of the
device, the manner in which it was used, and the extent to which its use endangered
others. See USSG § 5K2.6. To the extent application of the departure results in double
counting, it is permissible and appropriate because of the dangerousness of the weapon
involved. See United States v. Leahy, 169 F.3d 433, 443 (9th Cir. 1999); United States
v. Reese, 2 F.3d 870, 895 (9th Cir. 1993). While the departure increased his sentence, it
was part of the overall plea deal reach by the parties that significantly reduced his
exposure under the Indictment.
C.

Failure to Object to Criminal History Calculation

Mendenhall contends that counsel was deficient in not objecting to the attribution
of one point for his conviction for violating a protective order in 2009. He contends no
MEMORANDUM DECISION AND ORDER - 24

points should have been awarded because the offense is similar to the offenses listed
under § 4A1.2(c)(1) for which points are counted only if the sentence was a term of
probation of more than one year or a term of imprisonment of at least thirty days. As
prejudice, he sites the increased sentence and the rejection of the 15-year plea deal.
Mendenhall cannot demonstrate prejudice. The Presentence Report found that he
had six criminal history points which placed him in a category III. PSR ¶ 48. Had the
one point not been counted, he would have had five criminal history points which would
have likewise placed him in category III. See Sentencing Table, USSG Ch. 5, Pt. A
(indicating that criminal history category III applies where criminal history points total
either 4, 5, or 6). Also, the state court Judgment provided with the Government’s
Motion to Dismiss clearly states that the sentence imposed for violating the protective
order was 35 days. Response, Ex. B, Dkt. 4-2 at 2-5. Therefore, regardless of whether
the offense was similar to those listed under § 4A1.2(c)(1), the conviction was properly
counted.
D.

Failure to Object to Imposition of Consecutive Sentences

Mendenhall contends that counsel was deficient for not objecting to imposition of
consecutive sentences because 18 U.S.C. § 3584(1) states that “except that the terms
may not run consecutively for an attempt and for another offense that was the sole object
of the attempt.” § 2255 Motion at 14. He claims that “it can fairly be said that
Mendenhall transported explosives in an attempt to stalk the victims listed in the
MEMORANDUM DECISION AND ORDER - 25

information.” Id. He continues, “Indeed, stalking was the sole object of the attempt
contemplated in the transportation of explosives count” so he should have received
concurrent sentences. Because counsel did not object, he received an additional 90
months of imprisonment.
A review of the Superseding Indictment reflects that Mendenhall was not charged
with “an attempt.” Rather, he was charged with transportation of explosives in Count
One and with stalking in Count Two. Even if the sentences on Counts One and Two
should have otherwise run concurrently, they had to run consecutively to reach the
guideline range. See USSG § 5G1.2(d). Count Three was statutorily required to run
consecutively to the sentences imposed on Counts One and Two. See 18 U.S.C.
§ 924(c)(1)(D)(ii).
E.

Failure to Move for Downward Departure Based on Diminished
Capacity

Finally, Mendenhall contends that counsel should have moved for a downward
departure based on diminished capacity based on the mental health issues found in the
report of Dr. Craig Beaver. Such issues included diagnoses of Bipolar Type II Disorder,
Cognitive Dysfunction Not Otherwise Specified, Personality Disorder Not Otherwise
Specified among others. Based on what he speculatively characterizes as “extraordinary
diminished capacity,” he alleges that counsel was deficient for agreeing to the
prohibition in the Plea Agreement against moving for a downward departure. § 2255

MEMORANDUM DECISION AND ORDER - 26

Motion at 19. He concludes that had counsel informed him of the possibility of the
departure, he would not have agreed to the provision. Id.
Had Mendenhall not agreed to the provision prohibiting downward departures, the
§ 924(c) charges would not have been dismissed and he would have exposed himself to
a sentence of 30 years on one of those counts alone consecutive to the sentences
imposed on the underlying crimes of violence. Had counsel requested the departure, he
would have breached the Plea Agreement which would have permitted the Government
to withdraw from the Plea Agreement and to prosecute the charges that it had agreed to
dismiss. Plea Agreement at 10.
CONCLUSION
The Court need look no further than the dismissal of the § 924(c) counts to find
that counsel effectively represented Mendenhall. Conviction of even one § 924(c)
charge would have resulted in a consecutive sentence of thirty years over and above the
sentences of the remaining charges. To have negotiated for a 300-month or 25-year
sentence is indicative of highly effective advocacy. A necessary part of reaching that
agreement was Mendenhall’s waiver of his right to file a § 2255 motion except in limited
circumstances not applicable here. Mendenhall unequivocally agreed to that waiver in
the written Plea Agreement and at the change of plea hearing. That knowing and
voluntary waiver precludes the claims asserted in the § 2255 Motion. Even if it did not,

MEMORANDUM DECISION AND ORDER - 27

the claims fail on the merits as Mendenall can demonstrate neither ineffective assistance
nor prejudice. The newly asserted claims are subject to dismissal as untimely.
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
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).1 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 all of the grounds
alleged in the § 2255 Motion are subject to dismissal on both waiver and substantive

1

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

grounds and that issues raised in the response to the Motion to Dismiss are untimely to
be debatable or wrong. Accordingly, a certificate of appealability will not issue.
ORDER
IT IS ORDERED:
1.

Mendenhall’s Motion for Appointment of Counsel (Civ. Dkt. 11), Motions
for Issuance of Subpoena (Civ. Dkts. 15-23), and Notices of Default for
Failure to Respond (Civ. Dkts. 30-32) are DENIED.

2.

Mendenhall’s Motion to Strike and Motion to Continue Response Deadline
(Civ. Dkt. 14), Motion to Take Judicial Notice, and Motion to Determine
Whether Evidentiary Hearing is Required (Civ. Dkt. 29) are MOOT.

3.

The Government’s Motion to Dismiss Interrogatories and Requested
Subpoenas (Civ. Dkt. 27) is GRANTED.

4.

The Government’s Motion to Dismiss (Civ. Dkt. 4) is GRANTED and
Levi Wayne Mendenhall’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Civ.Dkt. 1 and Crim. Dkt. 49) is
DISMISSED in its entirety.

5.

No certificate of appealability shall issue. Mendenhall 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

MEMORANDUM DECISION AND ORDER - 29

Local Ninth Circuit Rule 22-1. To do so, he must file a timely notice of
appeal.
6.

If Mendenhall 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, 2014

Honorable Edward J. Lodge
U. S. District Judge

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