Decker v. USA

Filing 3

ORDER - Defendant's motion for relief under 28 U.S.C. § 2255 (ECF No. 163 filed in Case 3:13-cr-53) is hereby DENIED. The court further denies a certificate of appealability. Signed by Judge Howard D. McKibben on 10/26/2017. (Copies have been distributed pursuant to the NEF - DRM)

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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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vs.
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LESTER ROGER DECKER,
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Defendant.
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_________________________________ )

3:13-cr-00053-HDM-WGC
3:17-cv-00006-HDM
ORDER

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Defendant Lester Roger Decker (“Decker”) has filed a motion to
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vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255
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(ECF No. 163).

The government has responded (ECF No. 167), and

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Decker has replied (ECF No. 173).

On September 5, 2017, pursuant

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to court order, the government submitted the affidavits and
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declarations of Decker’s prior attorneys Julie Cavanaugh-Bill, John
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Neil Stephenson, and Karena K. Dunn.
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responded (ECF No. 177).
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(ECF No. 175).

Decker has

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On April 15, 2013, a criminal complaint was filed alleging

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that Decker had violated 18 U.S.C. §§ 2241(a), 1151 and 1153 by

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using force to engage in a sexual act with an unwilling victim.

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(ECF No. 1).

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counsel John Neil Stephenson the following day.

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the time, Stephenson was employed by Cavanaugh-Bill Law Offices

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with Julie Cavanaugh-Bill, who also appeared on Decker’s behalf.

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(See ECF No. 7).

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indictment charging Decker with engaging in and attempting to

Decker made his initial appearance with retained
(ECF No. 2).

At

On May 1, 2013, the grand jury returned an

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engage in aggravated sexual abuse in violation of 18 U.S.C. §§

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2241(a), 1151 and 1153.

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(ECF No. 13).

On June 7, 2013, the government offered Decker a plea

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agreement that would have allowed Decker to plead guilty to abusive

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sexual contact in violation of 18 U.S.C. § 2244(a).

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(Cavanaugh-Bill Aff. Ex. A); ECF No. 175-2 (Stephenson Decl. ¶ 4 &

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Ex. 1)).

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wife, describing it as a “very, very good plea bargain deal” and

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thereafter met with Decker to discuss it.

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(Stephenson Decl. ¶ 5)). Decker rejected the plea.

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(ECF No. 175-1

Stephenson emailed the proposed agreement to Decker’s

(ECF No. 175-2
(ECF No. 177).

In July 2013, Stephenson left Cavanaugh-Bill’s law firm and

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was removed from the case.

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Decl. ¶ 7)).

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appearance on Decker’s behalf as co-counsel with Cavanaugh-Bill.

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(ECF No. 31).

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Decker with a plea offer substantially similar to the one he had

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already rejected.

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decided to accept the offer, and a change of plea hearing was

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scheduled for September 25, 2013.

(ECF No. 30; ECF No. 175-2 (Stephenson

A few days later, attorney Martin Wiener entered an

Sometime later, Cavanaugh-Bill and Wiener presented

(ECF No. 177).

In mid-August 2013, Decker

(ECF No. 39; ECF No. 175-1
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(Cavanaugh-Bill Aff. ¶ 6)).

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Decker decided he did not want to plead and told Cavanaugh-Bill and

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Wiener that he no longer wanted them representing him and that he

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would be retaining Stephenson as counsel.

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(Cavanaugh-Bill Aff. ¶ 6)).

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motions to withdraw, which the court approved, and on September 19,

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2013, Stephenson re-appeared on Decker’s behalf.

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51, 52 & 55).

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an appearance on Decker’s behalf.

Shortly before the hearing, however,

(ECF No. 175-1

Cavanaugh-Bill and Wiener filed

(ECF Nos. 43, 48,

On September 25, 2013, Karena K. Dunn also entered
(ECF No. 57).

Pursuant to

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defense counsel’s request, trial was continued to December 16,

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2013.

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(ECF Nos. 55 & 58).
On November 18, 2013, Decker filed a motion to suppress

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statements he made to agents William Coochyouma and David Elkington

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on April 16, 2013, allegedly in violation of Miranda.

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62).

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sexual contact with the victim.

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31); ECF No. 68-1).

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2013, Decker testified that before he made these admissions the

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agents had told him his statements would be “off the record.”

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No. 123 (Tr. Evid. Hr’g 19)).

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Decker his statements would be “off the record,” Elkington admitted

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that after Decker invoked his right to an attorney, Elkington

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asked: “Before we go, do you have anything you want to talk about?”

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(ECF No.

Specifically, Decker admitted to striking and engaging in
(ECF No. 123 (Tr. Evid. Hr’g 30-

At an evidentiary hearing on November 26,

(ECF

Although the agents denied telling

(Id. at 8; ECF No. 97 at 11, 17-18)).

Decker’s incriminatory

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statements then followed.

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functional equivalent of interrogation, the court granted Decker’s

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motion and precluded the government’s use of Decker’s statements

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during its case in chief.

Finding Elkington’s question the

(ECF No. 96).
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The court noted, however,

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that it was not ruling as to whether the statements could come in

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for other purposes during trial.

(ECF No. 151 (Trial Tr. 2-6)).

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On December 11, 2013, the government submitted proposed jury

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instructions, which included separate instructions for aggravated

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sexual abuse and attempted aggravated sexual abuse.

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Trial commenced on December 16, 2013.

(ECF No. 88).

On December 17, 2013,

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the court discussed with counsel, in Decker’s presence, how to

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instruct the jury with respect to the attempt charge and what type

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of verdict forms to use.

(ECF No. 152 (Trial Tr. 354-58)).

The

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next morning, counsel advised the court that Decker did not wish to

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testify, and the court canvassed Decker about that decision.

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No. 153 (Trial Tr. 432-34)).

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judgment of acquittal on the attempt charge, arguing that the

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evidence was insufficient to support such a conviction.

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No. 104).

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(See ECF No. 105).

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guilty of attempted aggravated sexual abuse but not guilty of

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aggravated sexual abuse.

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(ECF

Decker also filed a motion for

(See ECF

The court denied the motion before instructing the jury.
On December 19, 2013, the jury found Decker

(See ECF Nos. 114-17).

Following trial, counsel filed a second motion for acquittal

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on the attempt conviction, which the court denied.

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122).

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counsel represented that they were not reasonably on notice of the

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attempt charge before trial.

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counsel asserted in the motion that it was not clear Decker “would

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be prosecuted on the attempt charge until the very end of trial.”

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(Id. at 7).

(ECF Nos. 119 &

In a motion for reconsideration of the court’s order,

(See ECF No. 130 at 2-3).

In fact,

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Prior to sentencing, the government moved for a two-level

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enhancement for obstruction of justice, arguing that Decker lied at
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the November 26, 2013, evidentiary hearing when, among other

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things, he testified that the agents told him his statements would

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be “off the record.”

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government’s motion, arguing that the court had not found Decker

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had perjured himself.

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2014, the court found that Decker testified falsely when he said

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that the agents told him the conversation would be “off the record”

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and concluded the two-level obstruction enhancement should

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therefore apply.

(ECF No. 125).

(ECF No. 126).

Defense counsel opposed the

At sentencing on March 19,

(ECF No. 150 (Sent. Tr. 27-32)).

The court

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accordingly sentenced Decker to a period of 190 months.

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of conviction was entered on March 21, 2014.

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Judgment

(ECF No. 144).

Decker appealed the conviction, and the Ninth Circuit

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affirmed.

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writ of certiorari, which the Supreme Court denied on January 11,

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2016.

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instant verified petition to vacate, set aside, or correct sentence

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pursuant to 28 U.S.C. § 2255.

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(ECF Nos. 146 & 157).

(ECF Nos. 161 & 162).

Decker then filed a petition for

On January 3, 2017, Decker filed the

(ECF Nos. 163 & 164).

Pursuant to § 2255, a federal inmate may move to vacate, set

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aside, or correct his sentence if: (1) the sentence was imposed in

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violation of the Constitution or laws of the United States; (2) the

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court was without jurisdiction to impose the sentence; (3) the

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sentence was in excess of the maximum authorized by law; or (4) the

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sentence is otherwise subject to collateral attack.

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Decker advances six grounds for relief in his petition, all of

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which allege ineffective assistance of counsel.

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Id. § 2255.

Ineffective assistance of counsel is a cognizable claim under

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§ 2255.

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1982).

Baumann v. United States, 692 F.2d 565, 581 (9th Cir.
In order to prevail on a such a claim, the defendant must
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meet a two-prong test.

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(1984).

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performance fell below an objective standard of reasonableness.

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Id. at 687-88.

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deferential and there is a strong presumption that counsel’s

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conduct fell within the wide range of reasonable representation.”

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United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir.

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1986).

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performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687

First, the defendant must show that his counsel’s

“Review of counsel’s performance is highly

Second, the defendant must show that the deficient
Strickland, 466 U.S. at 687.

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This requires showing that “there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.

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a probability sufficient to undermine confidence in the outcome.”

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Id. at 694.

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I.

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A reasonable probability is

Ground One
In his first ground for relief, Decker asserts that Cavanaugh-

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Bill had represented one of the government’s trial witnesses –

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Cecilia Baldazo – in an unrelated case.

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conflict prevented Cavanaugh-Bill and Stephenson from vigorously

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defending Decker by pursuing evidence to impeach Baldazo and

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prevented Stephenson from effectively representing Decker at trial

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because Stephenson could not cross-examine Baldazo.

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Decker asserts that this

“Effective assistance of counsel ‘includes a right to

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conflict-free counsel.’”

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859-60 (9th Cir. 2001), amended 2001 WL 474147 (9th Cir. 2001).

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“To establish a Sixth Amendment violation of defendant’s right to

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the effective assistance of counsel based on an attorney’s conflict

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of interest, ‘a defendant must show: (1) his attorney actively

United States v. Baker, 256 F.3d 855,

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represented conflicting interests, and (2) an actual conflict of

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interest affected his attorney’s performance.’”

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States, 33 F.3d 1133, 1135 (9th Cir. 1994).

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this right.

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Quintero v. United

A defendant may waive

Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978).

First, Decker identifies no impeachment evidence that should

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have been uncovered beyond the fact that Baldazo had been fired

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from previous employment for untruthfulness.

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that this information was known to Decker’s attorneys before

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Baldazo was called to the stand. (ECF No. 151 (Trial Tr. 51)).

The record is clear

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More importantly, however, Decker has not demonstrated that there

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was a need to impeach Baldazo.

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– defense counsel did.

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substantively, the only information defense counsel elicited from

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Baldazo was information that counsel wanted before the jury to cast

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doubt on the victim’s testimony.

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631)).

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prejudice.

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The government did not call Baldazo

(See ECF No. 153 (Trial Tr. 472-77)).

And

(See ECF No. 154 (Trial Tr.

Decker therefore has not established and cannot establish

Second, the conflict was disclosed to the court in Decker’s

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presence at trial, and the parties explained that to cure the

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conflict, co-counsel Dunn would cross-examine Baldazo.

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151 (Trial Tr. 49-54)).

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the issue, Decker indicated that he was aware of the conflict and

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the proposed procedure for handling it and that he had no

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objection.

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voluntarily waived his right to conflict-free counsel.

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Decker was not advised of the conflict in advance, as he claims

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(see ECF No. 177), and even if that renders his waiver involuntary

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or unknowing, Decker’s claim is still without merit. Decker has not

(Id. at 54).

(ECF No.

After the court and the parties discussed

Decker therefore knowingly and

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Even if

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established any prejudice from the alleged conflict.

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Decker is not entitled to relief on ground one of his motion.

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II.

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Accordingly,

Ground Two
In his second ground for relief, Decker asserts that

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Cavanaugh-Bill and Wiener were ineffective because they did not

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tell him he could have entered an Alford plea, which would have

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allowed him to plead guilty while maintaining his innocence.

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Decker asserts that he would have entered an Alford plea instead of

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going to trial.

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Cavanaugh-Bill believes that during negotiations she asked the

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government about the availability of an Alford or “no-contest” plea

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and was told that the U.S. Attorney’s Office in this district does

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not accept such pleas.

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The government and Stephenson corroborate that the U.S. Attorney’s

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in this district rarely, if ever, allows Alford pleas.

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offered no evidence to contradict these representations and no

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evidence to rebut the government’s assertion that it would not have

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allowed Decker to enter an Alford plea in this case.

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Decker argues that had counsel approached the government requesting

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an Alford plea or discussed Alford pleas with Decker, “counsel may

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have been able to get the government to agree to accept a plea in

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which Decker did not have to admit his guilt,” there is no evidence

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or reasonable probability that discussions about an Alford plea

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would have changed the results of negotiations in this case.

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Because Alford pleas are so rarely allowed by the government in

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this district it did not fall below the reasonable standard of

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representation for counsel to fail to discuss this option with

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Decker.

(ECF No. 175-1 (Cavanaugh-Bill Aff. ¶ 5)).

Decker has

Although

Likewise, because such pleas are rarely allowed and would
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not have been allowed in this case, Decker cannot show prejudice.

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Accordingly, Decker is not entitled to relief on ground two of his

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motion.

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III. Ground Three

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In his third ground for relief, Decker asserts that Stephenson

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was ineffective because he expressed a desire to take the case to

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trial and never discussed the perils of doing so with Decker.1

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Stephenson avers that when the government offered Decker the plea

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deal, Stephenson conveyed the deal to Decker, through his wife, and

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described it as a “very, very good plea bargain deal.”

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175-2 (Stephenson Decl. 2)).

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Decker re-retained him in September 2013, Decker was “adamant that

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he would not take the aforesaid plea offer under any

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circumstances.”2

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“spoke, in person, with Mr. Decker for countless hours about the

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nature of the charges against him, and the potential risks/rewards

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of going to trial.”

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to reject the plea offer and asked Stephenson to take him to trial.

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(Id.)

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Stephenson further states that when

(Id. at 3).

(Id.)

(ECF No.

Stephenson further states that he

Decker knew all of this when he decided

Even in his response to his former attorneys’ affidavits,

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Decker also argues Stephenson was ineffective for failing to advise
him that he could enter an Alford plea. For the reasons discussed supra §
II, Decker has not established ineffective assistance of counsel on these
grounds.
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Stephenson also states that Decker said that if “he pled to a felony
sex offense, he would lose his high-paying job with a prestigious mining
company, would not be eligible for meaningful employment in the future, and
his wife would leave him. Such a result was unacceptable in Mr. Decker’s
mind and tantamount to a life sentence.”
(Id. at 3).
However, Decker
denies telling Stephenson any of this. The court need not and therefore
does not rely on these disputed statements in addressing Decker’s third
ground for relief.

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Decker does not deny that Stephenson discussed the perils of trial

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with him and that it was Decker, not Stephenson, who was insistent

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that the case proceed to trial.

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that Stephenson’s performance was deficient in this respect or that

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Decker pleaded guilty due to Stephenson’s alleged deficient advice.

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Decker is therefore not entitled to relief on his third ground.

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IV.

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Accordingly, Decker has not shown

Ground Four
In his fourth ground for relief, Decker asserts that

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Stephenson and Dunn did not tell him he could be found guilty of

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attempted aggravated sexual abuse and so he believed he could be

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found guilty only of aggravated sexual abuse.

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testify at trial but asserts that if he had known he could be found

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guilty of attempted aggravated sexual abuse, he would have

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testified.

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reasonable probability that the outcome of the proceedings would

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have been different.

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Decker chose not to

Decker posits that if he had done so, there is a

For two reasons, Decker cannot show prejudice.

First, even

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assuming counsel did not discuss the possibility of an attempt

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conviction until the “eve of trial” (ECF No. 177), Decker knew it

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was a possibility before he made his decision not to testify.

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ECF No. 152 (Trial Tr. 354-58); ECF No. 153 (Trial Tr. 432-34)).

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Decker’s assertion that he would have testified had he known he

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could be convicted of attempt is therefore not credible.

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even if Decker had testified, there is no reasonable probability

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that the outcome of the proceedings would have been any different.

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Decker had told agents Elkington and Coochyouma that he struck the

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victim and engaged in sexual contact with her.

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Evid. Hr’g 30-31); ECF No. 68-1).
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(See

Second,

(ECF No. 123 (Tr.

These statements – which had

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been suppressed for the government’s case-in-chief would likely

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have been admitted had Decker testified.

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have heard Decker’s admission that he had sexual contact with the

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victim. Decker has failed to show that he is entitled to relief on

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ground four of his motion.

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V.

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Therefore, the jury would

Ground Five
In his fifth ground for relief, Decker asserts Stephenson and

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Dunn were ineffective for failing to take “any steps to correct the

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record as to the true meaning of” the statements he made at his

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suppression hearing which the court found to be false and failing

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to “establish that Mr. Decker did not testify falsely.”

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163 (Mot. 7)).

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correct the record, he would not have received the two-level

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enhancement for obstruction of justice.

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(ECF No.

Decker asserts that if counsel had taken steps to

Decker’s counsel did object to the enhancement at sentencing.

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Decker does not explain what the “true meaning” of his statements

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was or how any other steps by counsel would have changed the

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court’s conclusion that Decker had testified falsely on the stand.

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Moreover, Decker concedes in his reply that he cannot show

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prejudice on this count and therefore is not entitled to relief.

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Decker has failed to establish that his counsel’s performance

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in this regard fell below a reasonable standard of representation

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and has not shown any prejudice.

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entitled to relief on ground five of his motion.

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VI.

Accordingly, Decker is not

Ground Six

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In his sixth ground for relief, Decker asserts that his

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appellate counsel was ineffective for failing to argue that trial

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should have been continued when, three days prior to trial, the
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government provided new discovery to defense counsel.

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Decker cannot show prejudice.

The newly produced evidence was

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related primarily to the chain of custody of some evidence in the

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case.

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granted the parties a brief continuance before opening arguments so

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counsel could review the new evidence.

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that this time was insufficient or that counsel’s attention to the

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issue detracted from their preparation of his case in other

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respects.

(See ECF No. 175-2 (Stephenson Decl. ¶ 16)).

(Id.)

The court

Decker has not shown

In fact, Stephenson states that he does not believe

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Decker suffered any prejudice as a result of the discovery issue.

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(Id.)

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continuance is reviewed under an abuse of discretion standard.

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United States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir. 1999).

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It is therefore extremely unlikely this argument would have

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prevailed on appeal.

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argument therefore did not amount to ineffective assistance.

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Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

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Accordingly, Decker is not entitled to relief on ground six of his

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motion.

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Evidentiary Hearing

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Moreover, the court’s decision to grant or deny a

Appellate counsel’s failure to raise this
See

The court finds that “the motion and the files and records of

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the case conclusively show that [Decker] is entitled to no relief.”

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See U.S.C. § 2255(b).

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for an evidentiary hearing.

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Certificate of Appealability

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The court therefore denies Decker’s request

In order to proceed with an appeal, Decker must receive a

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certificate of appealability.

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P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951

28 U.S.C. § 2253(c)(1); Fed. R. App.

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(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550,

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551-52 (9th Cir. 2001).

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substantial showing of the denial of a constitutional right” to

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warrant a certificate of appealability.

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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

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must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or

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wrong.”

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In order to meet this threshold inquiry, the defendant has the

Generally, a defendant must make “a

28 U.S.C. § 2253(c)(2);
“The petitioner

Allen, 435 F.3d at 951 (quoting Slack, 529 U.S. at 484).

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burden of demonstrating that the issues are debatable among jurists

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of reason; that a court could resolve the issues differently; or

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that the questions are adequate to deserve encouragement to proceed

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further.

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with respect to whether they satisfy the standard for issuance of a

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certificate of appealability and determines that none meets that

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standard.

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appealability.

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Conclusion

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Id.

The court has considered the issues raised by Decker

The court therefore denies Decker a certificate of

Accordingly, Decker’s motion for relief under 28 U.S.C. § 2255

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(ECF No. 163) is hereby DENIED.

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certificate of appealability.

The court further denies a

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IT IS SO ORDERED.

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DATED: This 26th day of October, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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