The opinion of the court was delivered by: Hon. Garland E. Burrell, Jr.
SETTLEMENT AGREEMENT AND ORDER RE: 28 U.S.C. § 2255 MOTION
Defendant Bryan James Epis and his counsel John Balazs, Esq., on the one hand, and plaintiff United States of America, through its counsel, Assistant United States Attorney Samuel Wong, on the other hand, hereby stipulate to the entry of the following Settlement Agreement reached after negotiations and request that the Court accept and adopt this entire Settlement Agreement and, with respect to the Second Superseding Indictment, vacate Epis' conviction on Count One and re-sentence him on Count Three to 90 months imprisonment, ten years supervised release, a $15,000 fine, and a $100 special penalty assessment under 28 U.S.C. § 2255 for the following reasons:
1. On June 26, 2002, a jury found defendant Bryan James Epis guilty on Count One of the Second Superseding Indictment of conspiracy to manufacture 1,000 or more marijuana plants within 1,000 feet of a school and on Count Three of the same indictment of manufacturing 100 or more marijuana plants within 1,000 feet of a school. Count One carried a mandatory minimum penalty of 10 years imprisonment while Count Three carried a mandatory minimum of 5 years imprisonment.
2. On October 7, 2002, the district court sentenced Epis to 120 months imprisonment on each count to run concurrent with each other.
3. On appeal, the Ninth Circuit Court of Appeals remanded Epis' case to the district court to await the outcome of Gonzales v. Raich, 545 U.S. 1 (2005), and for re-sentencing. After evidentiary hearings, the district court determined that Epis was not qualified for the safety valve, and re-sentenced Epis to the 120-month mandatory minimum incarceration term on Count One and 87 months incarceration term on Count Three, to run concurrently. The Court also imposed concurrent ten years terms of supervised release on each count, a $15,000 fine, and $200 in special assessments. In doing so, the district court found that Epis' applicable guideline range was 87-108 months.
4. After a further appeal, the Ninth Circuit Court of Appeals affirmed Epis' conviction and sentence in an unpublished decision filed April 8, 2009. The court of appeals denied Epis' petition for rehearing and rehearing en banc on August 11, 2009. The Supreme Court denied his petition for writ of certiorari on January 19, 2010. Epis, who had been released pending appeal, was remanded into custody by the district court on February 22, 2010.
5. On January 17, 2011, Epis timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The motion was supported by a 51-page memorandum, declarations, and other supporting documents. The § 2255 motion contains ineffective assistance of counsel (IAC) claims and other non-IAC claims for relief. Thereafter, the matter was referred to a magistrate judge. The Court set a schedule for discovery on Epis' ineffective assistance claims and ordered briefing on Epis' non-IAC claims. The discovery cut-off was April 6, 2012. The Court also scheduled an evidentiary hearing for May 15, 2012.
6. On August 15, 2011, the United States filed an opposition to Epis' non-IAC claims. On April 5, 2012, Epis filed a reply to the United States' opposition to his non-IAC claims.
7. With respect to Epis' IAC claims, the United States issued subpoenas to produce documents to Epis' trial attorney Tony Serra and attorney, Zenia Gilg. Ms. Gilg worked with Serra on Epis' case, primarily with respect to research, preparation, and litigation of pretrial motions. The parties also conducted depositions of Mr. Serra and Ms. Gilg on January 5, 2012, and March 29, 2012.
8. Epis' § 2255 motion raises a number of IAC claims for relief, including a claim that his attorneys rendered ineffective assistance in advising him with respect to a plea offer United States made before trial. Epis' motion and declaration allege that, if his attorneys had competently advised him regarding the offer, he would have accepted the offer and pled guilty instead of going to trial.
9. During the depositions of attorneys Serra and Gilg, neither attorney refuted the factual allegations supporting Epis' IAC claim regarding the plea offer as neither attorney had sufficient recollection of the legal advice given to Epis on the United States' plea offer before trial. The parties agree that in light of the discovery and record in this case, it may or not be possible for the United States to sufficiently refute Epis' claim that his trial attorneys rendered ineffective assistance with respect to advising Epis about the United States' pretrial plea offer to resolve the case, especially in light of the district court's previous factual findings regarding Epis' lack of credibility. In Lafler v. Cooper, 132 S. Ct. (2012), the Supreme Court recently held that an attorney's ineffective assistance that results in the rejection of a plea offer may provide the basis for habeas relief where there is a "reasonable probability" that the outcome of the plea process would have been different with competent advice.
10. In light of the litigation risks posed by Lafler v. Cooper, and in lieu of further litigation and to effect full and final settlement of all of Epis' legal claims, known and unknown, including without limitation the claims in his § 2255 motion, the parties agree and request that the Court accept and adopt this Settlement Agreement, and pursuant to the Court's authority under 28 U.S.C. § 2255, vacate Epis' conviction on Count One and resentence Epis on Count Three to 90 months imprisonment, a $15,000 fine, ten years supervised release, and a $100 special assessment. This sentence falls within the 87-108 month guideline range found by the district court when Epis was re-sentenced on September 14, 2007. The parties agree that this sentence is also sufficient, but not greater than necessary, to satisfy all the purposes of sentencing set forth in 18 U.S.C. § 3553(a).
11. As part of this Settlement Agreement, Epis agrees, through his attorney, to deliver a cashier's check or money order for $15,100 as full payment of the fine and special assessment to the Clerk of the United States District Court at the same time this Settlement Agreement is filed with the Court. Epis agrees not to move for early termination of his supervised release term. Epis agrees not to manufacture, distribute, possess, use, advocate or in any way be involved with marijuana, regardless whether federal or state law prohibits such conduct, during his incarceration and/or the completion of his ten-year supervised release term.
12. Epis agrees that he was properly convicted on both Counts One and Three of the Second Superseding Indictment based on sufficient competent and admissible evidence as found by the jury beyond a reasonable doubt. Epis also agrees that there was no misconduct wrongdoing by the United ...