Young v. USA

Filing 2

ORDER denying 1 motion to vacate, set aside, or correct sentence (2255). Signed by Judge Larry R. Hicks on 6/5/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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RICK YOUNG,

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Defendant.

3:08-CR-0120-LRH-VPC
ORDER

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Before the court is defendant Rick Young’s (“Young”) motion to vacate, set aside, or

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correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #287.1 The United States filed an

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opposition (Doc. #293) to which Young replied (Doc. #294).

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I.

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Facts and Background
On March 30, 2011, defendant Rick Young (“Young”) was convicted on various counts

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charged in the second superseding indictment (Doc. #70) including: (1) Count One for conspiracy

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to commit wire fraud in violation of 18 U.S.C. § 1349; (2) Counts Two and Six for wire fraud in

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violation of 18 U.S.C. § 1343; (3) Counts Seven, Ten and Eleven for money laundering in violation

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of 18 U.S.C. § 1957; and (4) Count Thirteen for securities fraud in violation of 15 U.S.C. § 78j(b)

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(Doc. #170). After a series of post-trial motions, Young was sentenced to three hundred (300)

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months imprisonment. Doc. #264. Young appealed his conviction and sentence which was

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Refers to the court’s docket number.

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ultimately upheld by the Ninth Circuit. Doc. #282.Thereafter, Young filed the present motion to

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vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #287.

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II.

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Legal Standard
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct

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a sentence if “the sentence was imposed in violation of the Constitution or laws of the United

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States, or that the court was without jurisdiction to impose such sentence, or that the sentence was

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in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

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28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

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Procedure § 41.3b (5th ed. 2005).

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The Sixth Amendment to the Constitution provides that criminal defendants “shall enjoy

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the right to have the assistance of counsel for his defense.” U.S. Const. Amend. VI. To establish

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ineffective assistance of counsel, a petitioner must show that his counsel’s performance was

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deficient, and that petitioner was prejudiced as a result of counsel’s deficient performance.

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Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel’s performance

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was deficient, the court must examine counsel’s overall performance, both before and at trial, and

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must be highly deferential to the attorney’s judgments.” Quintero-Barraza, 78 F.3d at 1348 (citing

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Strickland, 466 U.S. at 688-89) (internal quotations omitted). Once a petitioner has established that

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counsel’s performance was deficient, the petitioner “must then establish that there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

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been different. A reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id.

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III.

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Discussion
In his motion, Young argues that he is entitled to post-conviction relief under Section 2255

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due to the ineffective assistance of his trial counsel, attorney Donald Hill (“Attorney Hill”). See

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Doc. #287. In particular, Young argues that Attorney Hill was constitutionally ineffective by failing

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to advise him of a formal plea agreement offered by the government on February 28, 2011, which
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contemplated a sentencing guideline range of 63 to 78 months. Young further argues that as a result

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of Attorney Hill’s failure, he proceeded to trial where he was convicted and sentenced to 300

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months.

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It is well established in the Ninth Circuit that counsel has an affirmative duty to present a

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plea offer made by the government to his client. United States v. Blaylock, 20 F.3d 1458, 1465 (9th

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Cir. 1994) (“We hold that an attorney’s failure to communicate the government’s plea offer to his

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client constitutes unreasonable conduct under prevailing professional standards.”); see also,

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Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012) (holding that “as a general rule, defense counsel has

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a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions

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that may be favorable to the accused.”).
Here, the court finds that Attorney Hill did advise defendant Young about the February 28,

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2011 plea agreement. The evidence presented to this court through the signed affidavits of both

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Attorney Hill and Ryan Corrigan, an independent investigator hired to assist in Young’s defense

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and trial preparation, establish that Young was advised about the plea agreement. See Doc. #293,

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Exhibit A, Hill Affidavit; Exhibit B, Corrigan Affidavit. More than four years since trial, the court

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still recalls the pervasive and persistent impression that Young was insistent on going to trial and

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that he was so strong willed that he would pursue his own defense strategy, and that he believed he

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would be found not guilty. The court can also recall an informal comment by Attorney Hill

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sometime before trial that Young was not interested in a plea. Based on Young’s repeated

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misrepresentations to the court, including presenting testimony at trial that was “false, material, and

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willful,” the court finds that Young’s affidavit strains credulity. Considering that Young received a

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sentencing enhancement for perjury, and that both Attorney Hill and an independent investigator

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submitted affidavits stating that Young was presented with the February plea agreement, the court

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finds that Attorney Hill was not constitutionally ineffective.

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Additionally, based on the court’s familiarity with Attorney Hill, investigator Corrigan, and

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defendant Young, the court finds that an evidentiary hearing is not necessary for the court to decide
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the present motion. The proffered affidavits set forth sufficient evidence for the court to find that

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Young was directly advised by Attorney Hill of the February 28, 2011 plea agreement, but that

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defendant Young insisted upon proceeding to trial despite the agreement. The court finds that an

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evidentiary hearing is not unnecessary.

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III.

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Certificate of Appealability
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “an appeal

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may not be taken to the court of appeals from . . . the final order in a proceeding under section

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2255” unless a district court issues a certificate of appealability (“COA”) based on “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(B).

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Here, the court finds that Young has not shown a denial of a constitutional right in his

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motion. In denying his motion, the court notes that Young has failed to raise a meritorious

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challenge to his conviction and sentence based on ineffective assistance of trial counsel. See Supra,

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Section II. As such, the court finds that Young has failed to demonstrate that reasonable jurists

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would find the court’s assessment of his claims debatable or wrong. See Allen v. Ornoski, 435 F.3d

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946, 950-951 (9th Cir. 2006). Therefore, the court shall deny Young a certificate of appealability as

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to his motion to vacate sentence pursuant to U.S.C. § 2255.

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IT IS THEREFORE ORDERED that defendant’s motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. #287) is DENIED.

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IT IS FURTHER ORDERED that defendant is DENIED a certificate of appealability.

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IT IS SO ORDERED.

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DATED this 5th day of June, 2015.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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