Gray v. United States of America

Filing 22

ORDER DENYING IN PART PETITIONER'S 1 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND GRANTING EVIDENTIARY HEARING ON GROUND TWO signed by Judge Benjamin H. Settle. Petitioner's 1 Motion to vacate, set aside, or correct sentence, i s DENIED as to ground one and ground three, GRANTED as to her request for an evidentiary hearing on ground two, and RESERVING ruling on the merits of ground two. The parties shall submit a joint status report with proposed dates for the evidentiary h earing by August 23, 2019. Petitioner is further ordered to SHOW CAUSE in writing why the Court should not DISMISS the grounds remaining from the original petition for failure to prosecute. Failure to show cause or otherwise respond by August 23, 2019 will result in DISMISSAL of those grounds without further notice to the parties. (GMR)

1
2
3
4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

5
6

KIMBERLY B. GRAY,
7
Petitioner,
8
9

v.
UNITED STATES OF AMERICA,
Respondent.

10
11

CASE NO. CV 18-5464 BHS
(CR 16-5600 BHS)
ORDER DENYING IN PART
PETITIONER’S MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE AND
GRANTING EVIDENTIARY
HEARING ON GROUND TWO

12

This matter comes before the Court on Petitioner Kimberly Gray’s (“Gray”)

13

motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Dkt. 1. The Court

14

has considered the pleadings filed in support of and in opposition to the motion and the

15

remainder of the file and hereby denies the motion in part, grants an evidentiary hearing

16

on ground two, and reserves ruling on the merits of ground two for the reasons stated

17

herein. The Court further orders Gray to show cause why the remaining grounds for relief

18

should not be dismissed for failure to prosecute.
I.

19

FACTUAL BACKGROUND

20

In December 2016, federal agents investigating drug trafficking arrested Gray at

21

her home in Port Orchard, Washington. United States v. Gray, Cause No. 3:16-cr-5600-

22

BHS (“CR”), Dkt. 372 ¶ 9. When agents entered the home, they discovered Gray in a

ORDER - 1

1

bathroom attempting to flush methamphetamine down the toilet. Id. Agents recovered

2

304.1 grams of methamphetamine from the bathroom. Id. Agents also discovered 364.3

3

grams of methamphetamine in a bedroom closet. Id.

4

Agents searched Gray’s home as part of an investigation into a drug trafficking

5

organization (“DTO”) led by Jose Mozqueda Vasquez. Id. Gray “served as a redistributor

6

for the Mozqueda Vasquez DTO.” Id. “As a DTO redistributor, [Gray] regularly obtained

7

methamphetamine from Mozqueda Vasquez, or another DTO member, and distributed it

8

to others in the community on behalf of the DTO.” Id. “More specifically, [Gray] would

9

typically obtain five to ten pounds of methamphetamine per month. [Gray] then

10

redistributed the methamphetamine to approximately 15 other individuals in the

11

community.” Id.

12

The Court appointed attorney James B. Feldman (“Feldman” or “Gray’s counsel”)

13

to represent Gray. 1 CR, Dkt. 49. On April 13, 2017, the grand jury returned a superseding

14

indictment charging Gray with conspiracy to distribute a controlled substance,

15

distribution of a controlled substance, and possession of a controlled substance with

16

intent to distribute. Id., Dkt. 273. The latter two charges each carried a mandatory

17

minimum sentence of ten years. 21 U.S.C. § 846(b)(1)(A).

18

Gray’s counsel negotiated a plea agreement on her behalf. Under the terms of the

19

agreement, Gray agreed to plead guilty to the lesser-included offense of conspiracy to

20

distribute a controlled substance which had a mandatory minimum sentence of five years.

21
22

1

References to “Gray’s counsel” refer to former counsel James Feldman throughout.

ORDER - 2

1

CR, Dkt. 372; 21 U.S.C. § 841(b)(1)(B). In exchange for Gray’s plea the Government

2

agreed to dismiss the remaining counts, each of which carried mandatory ten-year

3

sentences. CR, Dkt. 273. The Government agreed to recommend a sentence no longer

4

than 96 months on the conspiracy charge. Id.

5
6

On June 14, 2017, the Court held a change of plea hearing and conducted a guilty
plea colloquy in accordance with Fed. R. Civ. P. 11. Id., Dkt. 371.

7

The Court inquired about Gray’s preparation for the hearing as follows:

8

THE COURT: Have you had time, then, to prepare for this hearing by
going over with [counsel] in detail the plea agreement and go over your
case thoroughly enough so that you think you are fully prepared to enter a
plea here?

9
10

THE DEFENDANT: Yes, Your Honor.
11
Dkt. 20-5, Transcript of Change of Plea Hearing (“Plea Tr.”) at 5. 2 The Court further
12
advised Gray she could have “whatever time you want and need [with counsel] in order
13
to be confident that you are ready to proceed.” Id.
14
Gray admitted that she redistributed a minimum of 5 kilograms of
15
methamphetamine during her participation in the conspiracy. CR, Dkt. 372 ¶ 9. The
16
Court found a factual basis for the plea, found that Gray entered the plea knowingly,
17
intelligently, and voluntarily, and found her guilty of conspiracy to distribute a controlled
18
substance. Plea Tr. at 18.
19
On September 25, 2017, the Court sentenced Gray to 72 months of imprisonment
20
and four years of supervised release. CR, Dkt. 514. The Court accepted the parties’
21
22

2

The Court refers to the pagination generated by the CM/ECF system throughout.

ORDER - 3

1

stipulations to a base offense level of 34 and to a 3-level reduction for acceptance of

2

responsibility, resulting in a net offense level of 31. Dkt. 17-1, Transcript of Sentencing

3

Hearing (“Sent. Tr.”) at 4. However, Gray objected to the probation officer’s conclusion

4

that her prior convictions placed her in criminal history category III. Id. at 6. The Court

5

sustained Gray’s objection and reduced her criminal history category to II, thereby

6

determining the applicable guideline sentencing range to be 121–151 months. Id.; see

7

also United States Sentencing Commission, Guidelines Manual (“USSG”), Ch. 5, Part A

8

(Nov. 2016) (showing sentencing range for offender with net offense level of 31 and

9

criminal history category of II).

10

Gray’s counsel advocated for the minimum sentence under law, 60 months, while

11

the Government asked the Court to impose 96 months. Sent. Tr. at 11–12. Gray’s counsel

12

supported his 60-month request by arguing that (1) Gray had successfully completed

13

treatment for alcoholism at the pretrial stage, (2) Gray’s criminal history was limited and

14

non-violent, and (3) a 60-month sentence would sufficiently deter Gray from future

15

criminal conduct due to the lengthy separation from her children. Id. at 11–13.

16

The Government filed an exhibit prior to sentencing summarizing the roles of the

17

members of the DTO. Dkt. 20-3. The exhibit characterized Gray as a “redistributor” of

18

methamphetamine. Id. Gray’s counsel did not request a two-level reduction under USSG

19

§ 3B1.2(b) for her being a minor participant in the DTO at sentencing. When imposing

20

the sentence, the Court referred to Gray as a “significant redistributor” of

21

methamphetamine, Sent. Tr. at 15, and noted that “the amount of drugs that were

22

ORDER - 4

1

involved here could clearly have lead [sic] to a much longer prison sentence than is the

2

one that is being recommended here,” id. at 16.

3

Gray did not pursue a direct appeal.

4
5

II. PROCEDURAL HISTORY
On June 4, 2018, the Court received a motion for minor role reduction from Gray

6

acting pro se. CR, Dkt. 719. The Court forwarded the motion to Gray’s counsel. Id. On

7

June 7, 2018, Gray’s counsel wrote to her advising that if she wished to pursue the minor

8

role claim, it was his belief she “would have to file a Writ under 28 U.S.C. § 2255 and

9

allege ineffective assistance of counsel for my not arguing that you were deserving of a

10

minor role adjustment.” Dkt. 20-4. On June 11, 2018, Gray filed a pro se § 2255 petition

11

asserting ineffective assistance of counsel based on ten grounds. Dkt. 1. 3

12

The Court allowed Gray’s counsel to withdraw, CR, Dkt. 733, and appointed

13

attorney Suzanne Elliott (“Elliott”) to represent Gray. Dkt. 10. After her appointment,

14

Elliott prepared all of Gray’s submissions to the court. On October 23, 2018, the parties

15

filed a stipulated motion amending the petition. Dkt. 14. The stipulation addressed only

16

three of the ten grounds in the original petition; ground ten was withdrawn, and ground

17

one and ground nine were amended as follows:

18
3

19
20
21
22

The grounds are: (1) failure to adequately review and discuss discovery materials; (2)
failure to adequately explain the benefits of proffering; (3) failure to seek a minor role
adjustment; (4) failure to adequately inform of the Dream Court requirements; (5) failure to
inform of the ability to present character letters to the court; (6) failure to seek a “2-point nonviolent drug offender (Amendment 782)” adjustment; (7) failure to explain the effect of “relevant
conduct” on the sentence; (8) failure to seek a mental health adjustment; (9) failure to spend
adequate time meeting with petitioner in preparation for the defense; and (10) failure to inform
petitioner of the right to appeal. Dkt. 1.

ORDER - 5

1
2
3
4

Ground One: Gray asks to amend her petition to clarify and allege that
trial counsel’s failure to review and discuss the discovery materials with her
prejudicially impacted her sentencing presentation.
Ground Nine: Gray asks to amend her petition to clarify that trial counsel
did not meet with her enough to properly discuss the case against her and
benefits of making a proffer and seeking a 5K1.1 Motion.

5

Id. (emphasis in the original). The stipulation further clarified that Gray only

6

wished to challenge her counsel’s performance as it impacted her at sentencing. Id.

7

On January 4, 2019, Gray filed a memorandum of law in support of the amended

8

petition. Dkt. 17. The memorandum, however, discussed only three grounds of Gray’s

9

claim of ineffective assistance: failure to discuss and/or review discovery materials with

10

petitioner (ground one as amended); failure to adequately advise petitioner about the

11

benefit giving a proffer may have on the sentence (ground nine as amended and

12

combined with ground two); 4 and failure to seek a sentencing reduction for having a

13

minor role in the DTO (ground three). Id.

14
15

On February 26, 2019 the Government responded, also addressing only grounds one,
two, and three. Dkt. 20. On March 15, 2019, Gray replied. Dkt. 21.

16
17
18
19
20
4

21
22

Like ground nine as amended, ground two similarly alleges that counsel failed to
adequately explain the benefits of proffering. Dkt. 1 at 5. Based on this overlap, the Court finds it
prudent to combine ground nine as amended with ground two for purposes of review (hereinafter
referenced collectively as “ground two”).

ORDER - 6

1
2

III. DISCUSSION
A.

Standards of Review

3

1.

28 U.S.C. 2255

4

Under 28 U.S.C. § 2255, the Court may grant relief to a federal prisoner who

5

challenges the imposition or length of his incarceration on the ground that: (1) the

6

sentence was imposed in violation of the Constitution or laws of the United States; (2) the

7

Court was without jurisdiction to impose such sentence; (3) the sentence was in excess of

8

the maximum authorized by law; or (4) the sentence is otherwise subject to collateral

9

attack. 28 U.S.C. § 2255(a).

10

A judge may dismiss a § 2255 motion if “it plainly appears from the motion, any

11

attached exhibits, and the record of prior proceedings that the moving party is not entitled

12

to relief.” Rule 4(b) of the Rules Governing § 2255 Proceedings. If the motion is not

13

summarily dismissed, “the court shall . . . grant a prompt hearing thereon, determine the

14

issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C.

15

§ 2255(b). The Ninth Circuit has characterized this standard as requiring an evidentiary

16

hearing when the petitioner “has made specific factual allegations that, if true, state a

17

claim on which relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116

18

(9th Cir. 2003) (citing United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).

19
20
21
22

2.

Ineffective Assistance of Counsel

The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court
evaluates ineffective assistance of counsel claims under the two-prong test set forth in

ORDER - 7

1

Strickland. To prevail, the prisoner must prove (1) that his counsel’s performance was

2

deficient, and (2) that this deficient performance was prejudicial. Id.

3

To establish deficient performance, Gray must show that counsel’s representation

4

“fell below an objective standard of reasonableness.” Id. at 688. The Court must apply a

5

“strong presumption” that counsel’s conduct falls within the “wide range of reasonable

6

professional assistance.” Id. at 689. With respect to prejudice, Gray must demonstrate “a

7

reasonable probability that, but for counsel’s unprofessional errors, the result of the

8

proceeding would have been different.” Id. at 694. A “reasonable probability” is “a

9

probability sufficient to undermine confidence in the outcome.” Id.

10

B.

Application to § 2255 Petition

11

Petitioner asserts she was denied her Sixth Amendment right to effective

12

assistance at sentencing based on three alleged errors by counsel: (1) failing to review

13

and discuss discovery materials with her, (2) failing to explain the benefits of providing a

14

proffer to her, including the possibility that the Government would file a § 5K1.1 motion,

15

potentially allowing her to obtain a sentence below the mandatory minimum, and (3)

16

failing to argue for a minor role adjustment. Dkt. 17 at 2–3. Gray further asserts that the

17

Court would have imposed a sentence shorter than 72 months but for the combination of

18

these three alleged errors, thereby prejudicing her. Id. at 3.

19

As discussed in further detail below, the Court concludes that Gray fails to meet

20

her burden to establish ineffective assistance based on grounds one and three but states a

21

prima facie case of deficient and prejudicial performance requiring an evidentiary hearing

22

on ground two. Additionally, the Court addresses the grounds remaining from the original

ORDER - 8

1

petition (four, five, six, seven, and eight) and orders Gray to show cause why those

2

grounds should not be dismissed.

3

1.

4

The first question presented is whether Gray’s counsel was ineffective based on an

5

alleged failed to review and discuss all discovery materials with her. Dkt. 17 at 2–3. Gray

6

relies on Strickland to establish that criminal defense lawyers have a duty “to consult

7

with the defendant on important decisions and to keep the defendant informed of

8

important developments.” Id. at 3 (citing Strickland, 466 U.S. at 688). Although missing

9

words and/or grammatical errors make Gray’s two-sentence application of this principle

10

to the discovery claim confusing, she appears to argue for a significant extension of the

11

principle without citation to authority. See id. (stating that counsel’s duty to consult the

12

defendant on important decisions and developments “would include full information of

13

the evidence [sic] to support the Government’s case. Thus, the failure to review and

14

adequately consult with a client is ineffective.”) (emphasis added). Gray does not allege

15

that her counsel was ineffective based on his own review of the discovery. Thus, the

16

Court construes Gray’s argument to be an assertion that attorneys have a duty to review

17

all evidence (full information) in tandem with their clients—and that counsel was not

18

acting as the effective counsel required by the Sixth Amendment when he reviewed some

19

of the discovery without consulting Gray. Id. Gray’s argument fails for two reasons.

20

First, citing only to Strickland, Gray fails to establish that a criminal defense

Ground One: Discovery

21

attorney is ineffective if he fails to review all discovery in a matter with the client. The

22

Government’s investigation in this case culminated in the indictment of 19 suspected

ORDER - 9

1

DTO members; discovery was unsurprisingly voluminous. See Dkt. 372 (detailing the

2

evidence establishing the conspiracy and Gray’s role therein as “witness and informant

3

accounts; recorded telephone calls; court-authorized interceptions of wire and electronic

4

communications; controlled purchases of drugs by confidential sources; surveillance;

5

seizures of drugs and cash; search warrants; and other evidence . . .”). It is undisputed

6

that Gray’s counsel reviewed some of this evidence with Gray. For example, Gray’s

7

counsel declares that he met with Gray to review the “contents of the government’s

8

September 2016 application for an order authorizing inception of wire and electronic

9

communications” from Gray and several other suspects’ cellular phones on January 13,

10

2016. Dkt. 20-2, Declaration of James B. Feldman (“Feldman Decl.”), ¶ 3. Gray concedes

11

that the January 13 meeting took place and confirms that she reviewed discovery at the

12

meeting. Dkt. 21-1, Declaration of Kimberly Gray (“Gray Decl.”), ¶ 1. Gray also declares

13

that she reviewed discovery at a second meeting with counsel in March. Id., ¶ 2. The

14

Court presumes that Gray’s counsel was acting professionally when he twice reviewed

15

the Government’s evidence with Gray, Strickland, 466 U.S. at 689, and Gray fails to

16

establish with authority that the Constitution required him to do more.

17

Second, even if the Court assumes for purposes of argument that Gray’s statement

18

of the law is correct, she fails to demonstrate prejudice because she makes no connection

19

between this specific error and the length of her sentence. In the motion, Gray asserts that

20

counsel’s alleged failure to review discovery with her “prejudiced her because she either

21

did not have a thorough enough discussion with counsel about the advantages of a 5K1.1

22

or the lack of discussion resulted in Gray’s misunderstanding of benefit [sic] she could

ORDER - 10

1

receive if she made a proffer.” Dkt. 17 at 3 (emphasis added). But Gray fails to establish

2

prejudice on the discovery review claim by pointing to the type of prejudice that may

3

result from a failure to explain the potential sentencing benefits of cooperating with the

4

Government. Gray offers no other evidence of prejudice specific to the discovery claim,

5

nor does she identify what discovery she believes counsel should have reviewed with her

6

or how that might have affected her sentence. However, Gray does admit to realizing “the

7

Government had plenty of evidence to convict me” after the first of two discovery review

8

meetings she had with counsel. Gray Decl. ¶¶ 1, 2. Given this concession, it is

9

unsurprising that she does not even attempt to argue that her sentence would have been

10

shorter if counsel had reviewed all of the Government’s evidence with her. Because Gray

11

has not demonstrated a reasonable probability of receiving a lesser sentence even if her

12

allegations are true, she fails to demonstrate prejudice on this ground. Therefore, the

13

Court denies ground one.

14

2.

15

The Court next addresses Gray’s claim that that counsel was ineffective because

Ground Two: Sentence Reduction Under USSG § 5K1.1

16

he failed to adequately explain the sentencing benefits of cooperating with the

17

Government. Dkt. 17 at 4; see also Dkt. 1 at 5 (“At no point did Counsel tell me that if I

18

cooperated with the Government, I could have received a reduced sentence. It wasn’t

19

until after I was in prison did I find out that if I would have cooperated, I could have

20

received a 5K1.1 or a Rule 35 reduction.”).

21
22

Regarding the advice he gave Gray on cooperating with the Government, Feldman
declares as follows:

ORDER - 11

1

4

At the same January 13, 2017, meeting described above in which I
reviewed discovery with Ms. Gray, I discussed with her the potential benefit
of cooperating with law enforcement. Although I did not refer to this as
proffering, I explained that providing the Government with helpful
information about her case might result in a sentencing benefit. Ms. Gray
strongly objected to the idea of cooperating and insisted she did not know
any information that would be useful to law enforcement.

5

Feldman Decl., ¶ 9. Gray states in reply that she “disputes Mr. Feldman’s assertion that he

6

fully explained the operation of USSG § 5K1.1 and how a proffer would have aided in her

7

request that he seek the least amount of incarceration time possible.” Dkt. 21 at 1 (citing

8

Gray Decl.) (emphasis added). However, Feldman does not mention § 5K1.1 in his

9

declaration, let alone declare that he explained fully the specific operation of § 5K1.1.

10

Moreover, the declaration Gray submitted with her reply does not contain any outright

11

denial of Feldman’s explanation of the advice he gave Gray before her plea and sentencing.

12

Compare Gray Decl., ¶ 3 (stating that she “did not understand all of the issues related to

13

5K1.1 . . . . It was only later that I learned that I had to come in and tell the Government

14

everything I knew.”) with id., ¶ 6 (stating that the only reason Feldman assumed she did

15

not want to provide a proffer was “because he did not explain that option fully to me.”). In

16

light of Gray’s assertions, the Court concludes that the parties agree that Feldman discussed

17

with Gray the general opportunity to cooperate and/or provide a proffer to the Government.

18

The parties do dispute whether Feldman explained the impact Gray’s cooperation

19

could have on her sentence under USSG § 5K1.1. Dkt. 21 at 1 (citing Gray Decl.). Section

20

5K1.1 permits district courts to depart from the minimum sentence required by the

21

sentencing guidelines “[u]pon motion of the government stating that the defendant has

22

provided substantial assistance in the investigation or prosecution of another person who

2
3

ORDER - 12

1

has committed an offense.” USSG § 5K1.1; 18 U.S.C. § 3553(e). It is the Government’s

2

decision whether to move for a departure from sentencing guideline based on a defendant’s

3

substantial assistance under USSG § 5K1.1. Wade v. United States, 504 U.S. 181, 185

4

(1992). Although “a downward departure for substantial assistance is never guaranteed, as

5

the government may rightfully decline to file a substantial assistance motion for any reason

6

. . . . such a departure is assuredly impossible to obtain without successful cooperation.”

7

United States v. Leonti, 326 F.3d 1111, 1119 (9th Cir. 2003) (counsel’s failure to facilitate

8

client’s efforts to provide cooperation to an interested Government while awaiting

9

sentencing constituted the ineffective assistance of counsel). 5

10

In Leonti, the Ninth Circuit held that the period of a defendant’s cooperation with

11

the government was a critical stage of the proceedings requiring the effective assistance of

12

counsel. Id. at 1120. Finding the defendant had stated a claim on the allegation that his

13

attorney failed to facilitate his extensive efforts to cooperate with the Government, the

14

Court remanded the case for an evidentiary hearing. Id. at 1121–22. Although Leonti

15

involved an attorney who failed to assist his client in cooperating with the Government,

16

while Gray did not attempt to cooperate but argues she would have if her attorney explained

17

she could potentially escape a mandatory minimum by doing so, the Court finds that she

18

has alleged a preliminary showing of deficient performance on ground two.

19
20
21
22

5

Gray does not cite to Leonti, or to any authority establishing that failure to explain the
operation of a § 5K1.1 motion in relation to a mandatory minimum constitutes the ineffective
assistance of counsel. See Dkt. 17 at 3–4.

ORDER - 13

1

First, “[c]ooperating with the government has become a crucial aspect of plea

2

bargaining and sentencing under the Federal Sentencing Guidelines.” Leonti, 326 F.3d. at

3

1117. As the Circuit noted, [b]ecause 85% of federal criminal cases are resolved by plea,

4

it is not surprising that sentencing has become the effective focus of a defendant’s efforts

5

to secure a favorable outcome.” Id. at 1118 (footnote omitted). Id. Because alternative

6

bases to go below a sentencing guideline range are largely limited by the presence or

7

absence of specific factual circumstances, obtaining a § 5K1.1 motion based on

8

cooperation with the Government “is critical to a defendant’s hope of a reduced sentence.”

9

Id. Indeed, without the Government’s filing of a § 5K1.1 motion, “a defendant has little

10

hope of obtaining a reduced sentence.” Id. Undeniably then, “for many federal defendants,

11

such as [Gray], the only hope of mitigating the often harsh effects of the sentencing

12

guidelines is cooperation with the Government.” Id. Despite the factual distinctions

13

between Leonti and the instant case, then, the important relationship between a defendant’s

14

cooperation and the ultimate sentence dictates this Court’s conclusion that an allegation

15

that an attorney did not explain the operation of a § 5K1.1 motion as a means to reduce a

16

mandatory minimum sentence constitutes a prima facie claim of ineffective assistance. 6

17

Second, Feldman fails to specifically rebut the allegation that he failed to explain

18

the operation of a § 5K1.1 motion in relation to the five-year mandatory minimum sentence

19
6

20
21

At least one court has found ineffective assistance when counsel failed to advise the
defendant of the importance of cooperation as a means of reducing the sentence early in the case.
See United States v. Fernandez, No. 98 CR. 961 JSM, 2000 WL 534449, at *2 (S.D.N.Y. May 3,
2000), opinion adhered to on reconsideration, No. 98 CR. 961 JSM, 2000 WL 815913
(S.D.N.Y. June 22, 2000).

22

ORDER - 14

1

Gray faced at sentencing. Although he declares that he “explained that providing the

2

Government with helpful information about her case might result in a sentencing benefit,

3

Feldman Decl., ¶ 9, he did not declare, specifically state, or otherwise provide the Court

4

with affirmative evidence indicating that he explained that cooperating with the

5

Government could allow Gray to receive a sentence below 60 months pursuant to § 5K1.1.

6

Thus, it seems undisputed that Feldman failed to inform Gray that the Court could impose

7

a sentence lower than 60 months if the Government brought a substantial assistance motion

8

under § 5K1.1. Therefore, although the Court should note that it has prior experience with

9

Feldman and considers him to be an experienced, competent, and able attorney, the Court

10
11

concludes that Gray meets Strickland’s first prong of deficient performance.
To proceed to an evidentiary hearing on ground two, Gray must also demonstrate

12

prejudice. To show prejudice, Gray need only demonstrate a “probability sufficient to

13

undermine confidence in the outcome,” which here, is a probability sufficient to

14

undermine confidence that the sentence would have been shorter but for counsel’s errors.

15

Strickland, 466 U.S. at 694. Said another way, assuming Feldman had told Gray she

16

could escape the mandatory 60 months through the operation of a § 5K1.1 motion, Gray

17

must undermine the Court’s confidence in the appropriateness of the 72-month sentence

18

to show prejudice. The Government argues that Gray fails to show prejudice because she

19

failed to plead specific facts demonstrating that (1) she was in a position to provide

20

substantial assistance to the Government, and (2) the Government would have likely

21

sought a reduction of her sentence based on § 5K1.1. Dkt. 20 at 12–14.

22

ORDER - 15

1

While the Court agrees that Gray’s motion and supporting declaration are

2

imprecise and generally lack citation to authority, and that the question is close, Gray has

3

met her burden to demonstrate a reasonable probability that the Court would have

4

imposed a sentence shorter than 72 months but for counsel’s errors.

5

First, Gray pled facts indicating she would have cooperated with the Government

6

had she known of the operation of the § 5K1.1 motion. Gray Decl. ¶ 10 (“I could have

7

supplied the Government with information and would have done so had I received the

8

correct explanation and advice from [counsel].”) (handwritten edits to the declaration

9

incorporated). Indeed, Gray’s main priority throughout the case was to serve “as little

10

prison time as possible.” Feldman Decl., ¶ 4; see also id. ¶ 7 (“Her primary concern then,

11

as at all times, was avoiding a ten-year mandatory-minimum sentence.”). While it is true

12

that Gray failed to identify the specific evidence she would have provided at a proffer

13

session, and by extension, failed to explain how that hypothetical information would have

14

led to her providing substantial assistance, the Court finds that the exacting pleading

15

standard advocated by the Government on this issue goes beyond what Gray, a known

16

drug trafficker who redistributed significant amounts of methamphetamine to various

17

associates, must allege to demonstrate prejudice under Strickland. Therefore, the Court

18

credits Gray’s declaration in finding a reasonable probability that had Gray known she

19

could potentially escape even the 60-month mandatory minimum by cooperating with the

20

Government, she would have attempted to do so.

21
22

Second, the Court concludes that Gray demonstrates a reasonable probability that
her cooperation may have led the undersigned to impose a sentence lower than 72

ORDER - 16

1

months. The Government argues that Gray was not particularly credible and as a result, it

2

was unlikely to have sought a reduced sentence on her behalf via § 5K1.1. Dkt. 20 at 13.

3

While this may be true, it is difficult for the Court to assess on a post-hoc basis whether

4

the Government was likely to bring a § 5K1.1 motion based on Gray’s substantial

5

assistance had she cooperated, and so the Court will instead rely on its own record. When

6

imposing sentence, the Court commented on Gray’s disrespect for the law, noting that

7

she had given the Court “no assurance” that she had decided “to leave a criminal life

8

behind.” Sent. Tr. at 16. Given these statements, the Court does not have confidence that

9

Gray would have received the same 72-month sentence had the undersigned also been

10

presented with the fact of her cooperation. This conclusion stands even if Gray’s

11

cooperation did not actually lead the Government to file a § 5K1.1 motion, because the

12

mere fact of her attempted cooperation would have been a matter of mitigation properly

13

considered by the Court. Therefore, Gray has demonstrated a reasonable probability that

14

counsel’s failure to explain the impact of a § 5K1.1 motion led her to receive a longer

15

sentence, thereby demonstrating prejudice.

16

A petitioner moving for federal habeas relief under § 2255 is entitled to an

17

evidentiary hearing after making “specific factual allegations that, if true, state a claim on

18

which relief could be granted.” Schaflander, 743 F.2d at 717. Because Gray has

19

sufficiently alleged deficient performance and prejudice as explained above, she has

20

stated a claim on which relief could be granted on ground two. The Court will therefore

21

hold an evidentiary hearing on ground two. 28 U.S.C. § 2255(b).

22

ORDER - 17

1

At the evidentiary hearing, the Court must “determine the issues and make

2

findings of fact and conclusions of law with respect” to the issues raised by ground two.

3

Id. While the Court has found that Gray states a prima facie case of ineffective assistance

4

based on Feldman’s failure to discuss § 5K1.1 in relation to her mandatory minimum

5

sentence, there is insufficient evidence in the record to determine whether this decision

6

was reasonable given Gray’s alleged responses to Feldman. For example, Feldman

7

declares that he “raised the possibility of cooperating with law enforcement” to Gray at

8

least twice, but both times she responded by objecting to the idea of cooperating, saying

9

she had no information to provide. Feldman Decl., ¶¶ 9–10. On her part, Gray states that

10

the only reason Feldman “assumed” she did not want to cooperate was because he did not

11

fully explain the sentencing benefits associated with the option. Gray Decl., ¶ 6. Because

12

Gray only references Feldman’s “assumption” that she did not want to cooperate, it is

13

unclear whether she admits or denies twice telling Feldman that she did not have any

14

information to provide to the Government.

15

Should Gray deny she made the statements, the Court will have to resolve an issue

16

of credibility between her and Feldman. Should Gray admit to twice telling Feldman she

17

had no information to provide, the Court must consider her responses in determining

18

whether it was reasonable for Feldman to decline to discuss the impact of § 5K1.1 before

19

sentencing with a client who faced a mandatory minimum sentence.

20

Finally, Feldman does not state whether the second conversation about

21

cooperation included his explanation of the impact of a § 5K1.1 motion on the sentence.

22

See Feldman Decl., ¶ 10. Should Feldman admit that he never discussed the operation of

ORDER - 18

1

§ 5K1.1 with Gray before sentencing, the Court is likely to conclude that this omission

2

was ineffective. The Court will resolve these factual and legal issues at or shortly after

3

the evidentiary hearing.

4

3.

5

Gray claims Feldman provided ineffective assistance because he “failed to seek a

Ground Three: Minor Role Adjustment

6

‘minor participant’ role reduction” at sentencing. Dkt. 17 at 4. Section 3B1.2(b) of the

7

sentencing guidelines permits judges to reduce a defendant’s offense level by two levels

8

if the court determines that the defendant was a minor participant in the criminal activity

9

at issue. USSG § 3B1.2(b). The provision applies when a defendant is “substantially less

10
11

culpable than the average participant” in the conspiracy. USSG § 3B1.2, cmt. 3(A).
The Government argues that Gray fails to establish ineffective assistance because

12

she would not have qualified for a minor role adjustment based on her status as a

13

redistributor working closely with the DTO leader. Dkt. 20 at 14. The Court agrees that

14

Gray was not substantially less culpable than other DTO members. In the plea agreement,

15

Gray admitted to redistributing large quantities of methamphetamine on behalf of

16

Mozqueda Vasquez, the leader of the DTO. CR, Dkt. 372 ¶ 9. Gray also admitted that she

17

introduced Mozqueda Vasquez to another person who became a redistributor for the

18

conspiracy. Id. At times Mozqueda Vasquez would send “runners” working for the DTO

19

to deliver drugs to Gray to redistribute in the community. Id. And once, during a

20

transaction involving a person known only as the “Russian,” Gray helped the DTO

21

facilitate the delivery of an astonishing 20 pounds of methamphetamine. Id. These sworn

22

admissions demonstrate clearly that Gray was not “substantially less culpable” than the

ORDER - 19

1

average conspiracy member. USSG § 3B1.2, cmt. 3(A). Because Gray fails to show a

2

factual basis for a minor role reduction, the Court concludes that Feldman was not

3

ineffective when he declined to request the reduction at sentencing. Therefore, ground

4

three is denied.

5

C.

Grounds Remaining from the Original Petition

6

In October 2018, the parties filed a stipulated motion amending the § 2255

7

petition. Dkt. 14. In relevant part, the stipulation indicated that the grounds alleged in the

8

original petition (four, five, six, seven, and eight) “remain as stated.” Id. at 2. The

9

stipulation also stated that the grounds “will be supplemented in [Gray’s] additional

10

briefing now scheduled to be filed January 4, 2019.” Id. at 2. Despite this representation,

11

the brief that Elliott submitted on Gray’s behalf on January 4, 2019 asserted only three

12

grounds for relief, which indicates that Gray has abandoned the other grounds. See Dkt.

13

17. Adding to the Court’s confusion, Gray titled her brief as a brief in support of the

14

amended § 2255 motion, which, since no separate amended petition has ever been filed,

15

also seems to signify that she has chosen to advance only grounds one, two, and three. Id.

16

Regardless, Gray has failed to advance the grounds that remain from the original pro se

17

petition. Therefore, as indicated below, Gray is ordered to show cause why the Court

18

should not dismiss those grounds for failure to prosecute under Fed. R. Civ. P. 41(b).
IV. ORDER

19
20

Therefore, it is hereby ORDERED that Gray’s motion to vacate, set aside, or

21

correct sentence, Dkt. 1, is DENIED as to ground one and ground three, GRANTED as

22

to her request for an evidentiary hearing on ground two, and RESERVING ruling on the

ORDER - 20

1

merits of ground two. The parties shall submit a joint status report with proposed dates

2

for the evidentiary hearing by August 23, 2019.

3

Gray is further ordered to SHOW CAUSE in writing why the Court should not

4

DISMISS the grounds remaining from the original petition for failure to prosecute.

5

Failure to show cause or otherwise respond by August 23, 2019 will result in

6

DISMISSAL of those grounds without further notice to the parties.

7

Dated this 6th day of August, 2019.

A

8
9

BENJAMIN H. SETTLE
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 21