Movant is a federal prisoner proceeding through counsel with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 He seeks post-conviction relief on the grounds that his trial counsel rendered ineffective assistance in failing to inform him of all of the government's proposed plea offers, giving erroneous advice when he did advise him of plea offers, failing to advise him of the possible consequences of proceeding to trial, and failing to adequately represent him at the sentencing hearing. For the reasons explained below, the court sets a status conference for the purposes of scheduling an evidentiary hearing on movant's claims of ineffective assistance of counsel with regard to the plea bargain process and counsel's advice regarding the consequences of rejecting a plea offer and proceeding to trial.
In an indictment dated March 6, 2003, and a superseding indictment dated March 26, 2003, movant was charged with involvement in a narcotics conspiracy. Dckt. Nos. 14, 48, 385 at 4. At trial, on March 11, 2005, a jury found movant guilty of conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841, 846. Dckt. Nos. 205, 206. The jury made a specific finding that the quantity of cocaine he conspired to distribute was at least 5 kilograms. Dckt. No. 206 at 2. That finding as to the quantity of narcotics subjected movant to a statutory mandatory minimum sentence of 10 years in prison and a statutory maximum term of life in prison. 21 U.S.C. § 841(b)(1)(A)(ii)(II). On January 30, 2006, movant received a sentence of 360 months in federal prison. Dckt. No. 308.
Movant appealed his conviction and sentence to the United States Court of Appeals for the Ninth Circuit. Dckt. No. No. 309. On May 24, 2007, the Ninth Circuit affirmed movant's judgment and sentence. Dckt. No. No. 339.
Movant filed a motion pursuant to 28 U.S.C. § 2255 in this court on August 5, 2008, and a first amended motion on June 5, 2009. Dckt. Nos. 348, 358. On February 9, 2010, respondent filed a request to stay further briefing on the § 2255 motion until after the trial judge ruled on a motion to reduce movant's sentence, to be filed by respondent at a later date. Dckt. No. 367. The request for stay was granted by order dated March 10, 2010. Dckt. No. 368. On October 29, 2010, respondent filed a motion to reduce movant's sentence, based on information and assistance provided by movant to the Federal Bureau of Investigations and the Bureau of Prisons during his imprisonment. Dckt. No. 369. On November 2, 2010, the trial judge granted this motion and on November 4, 2010, the district court issued an amended judgment pursuant to which movant's sentence was reduced from 360 months to 240 months. Dckt. Nos. 372, 373.
On November 10, 2010, movant filed the second amended § 2255 motion on which this action proceeds. Dckt. No. 375. Respondent filed an opposition on May 2, 2011. Dckt. No. 385.
A. Movant's Crime of Conviction
The following factual summary regarding movant's crime of conviction is drawn from the Government's Trial Brief, which laid out the government's anticipated trial evidence at the time of the plea offers described in movant's § 2255 motion. These facts are reproduced here solely to provide a summary factual background with respect to movant's claims.
Beginning in 2002, the Drug Enforcement Administration (DEA) and the Sacramento High-Intensity Drug Trafficking Area Task Force (HIDTA), which is managed by the Sacramento County Sheriff's Department, began an extensive investigation into the drug trafficking activities of a group headed by Giap Lien. Ultimately, this investigation involved the use of several wiretaps and led to the arrest of approximately 22 defendants. Cooperating co-defendants will testify that, beginning in 1998 and continuing until February 2003 when arrests were made, this group imported Canadian marijuana, MDMA, and crystal methamphetamine from Canada and sold it locally in the Northern and Eastern Districts of California. Originally, they paid the Canadians for these drugs with cash. In 2001, they began paying for these drugs with cocaine.
Originally, defendant Khera's role in the conspiracy was to arrange the transportation of truckloads of drugs, primarily marijuana, south from Canada. He would accept a cash fee between $10,000 to $15,000 for each truckload for which he arranged for transportation from Canada to points of delivery in California. During this time, he also occasionally supplied Giap Lien with kilos of cocaine for sale locally. In 2001, Khera began supplying kilos of cocaine to Giap Lien for delivery to the Canadians.
In addition to the testimony of some of the co-defendants, the government will present the testimony of law enforcement officers who conducted surveillance of several meetings between defendant Khera and other members of the conspiracy. These meetings, in which bags were observed being delivered, typically occurred in parking lots.
The government will also play recordings of wiretapped telephone calls in which the defendant talks about various cocaine transactions with other members of the conspiracy.
Lastly, the government will present evidence of a transaction on February 3, 2003, in which the defendant provided 10 kilos of cocaine to an individual working as a government informant.
The following day, on February 4, 2003, the defendant appeared with co-defendant Hiep Lien at a motor home to look over the kilos and provide assurances that the kilos were of adequate quality for the people in Canada.
These 10 kilos were later seized during a traffic stop in Redding, California. The evidence of the defendant's participation in that transaction will include the testimony of surveillance agents, video from a pole camera, a body wire recording, recorded telephone calls, and telephone toll records.
Lastly, the government's evidence will include testimony regarding items seized at the defendant's residence including the same vehicles observed by law enforcement officers during the surveilled meetings with other members of the conspiracy, $35,000 cash in the house, over $7,000 on his person, and numerous cell phones and pagers.
In addition, a DEA agent will testify that the defendant made several statements at the time of his arrest including that he had known Giap Lien for 7 years, that he "did someone a favor, that doesn't make [him] a coke dealer;" "All I am is a runner;" that he went to the recreational vehicle where the 10 kilos of cocaine were because Hiep Lien needed his "expertise;" and that, in return for leniency from the agents, he could arrange a delivery of 15-20 kilos of cocaine but would need three days to set it up; that he had to act right away because his cocaine connections would soon learn of his arrest and right now they were "paging him off the hook."
B. Movant's § 2255 Motion
After movant was arrested on the conspiracy charges, he retained attorney Jesse Garcia and signed a "debriefing agreement" with the government. Dckt. No. 375 at 9; Dckt. No. 348-1, Ex. 1. Movant subsequently attended several debriefing sessions. Dckt. No. 375 at 9. Mr. Garcia has submitted a declaration in support of this § 2255 motion, in which he states that during the course of the debriefings that took place, Anne Pings, the Assistant United States Attorney prosecuting movant's case, informed Garcia that movant had earned a sentence reduction of at least 50% based on the information he had provided. Dckt. No. 375 at 9; Dckt. No. 348-1 at 5, 6. Garcia relayed this information to movant. Id.
Movant subsequently discharged Mr. Garcia and retained attorney Johnny Griffin as counsel. Dckt. No. 375 at 10; Dckt. No. 348-1 at 10. Movant attended two more debriefing sessions with Mr. Griffin as his attorney. Id. After movant's last debriefing session, in September 2003, Griffin told movant that he would arrange a plea agreement with the government and that "under the sentencing guidelines, which were then binding on the court, [the movant's sentencing] guideline range was 10 to 12 years." Id. Mr. Griffin told movant that this guideline range was based on the fact that movant had been involved in a 10 kilogram cocaine transaction. Id. He also told movant that Ms. Pings had promised at least a 50% sentence reduction due to his cooperation in the debriefing sessions. Id. In light of this advice, movant expected that he would reach a plea agreement with the government for a sentence of 5 to 6 years in prison. Id.
On January 29, 2004, Mr. Griffin met with movant in the Sacramento County jail and showed him a letter from Ms. Pings which proposed "a plea agreement whereby, after making a 28% reduction in his sentence for his cooperation, Khera would receive a sentence of 10 years." Dckt. No. 375 at 10; Dckt. No. 348-1 at 10-11, 21-22. The agreement also stated that movant's pre-departure sentence under the agreement was Level 35, pursuant to the federal sentencing guidelines.*fn2 Griffin told movant that this agreement did not conform to Pings' previous representations to him that she would offer movant a 50% reduction in his sentence for his cooperation, and that he should serve no more than 7 years in prison. Dckt. No. 375 at 10-11; Dckt. No. 348-1 at 10-11. Mr. Griffin also stated that Pings' guidelines calculation was "wrong." Id. Mr. Griffin showed movant a letter he sent that same day to Pings rejecting the plea offer. Id.*fn3 Griffin's letter stated that he was "flabbergasted" by the government's offer to recommend only a 28% sentencing departure because he had been advised by movant and attorney Garcia that movant had been promised at least a 50% reduction in his sentence for information he gave during the debriefing sessions. Dckt. No. 348-1 at 23. With regard to the discussions between Griffin and Pings regarding movant's sentence, Griffin's letter stated that "though at various times you advised me that you could not give me the exact extent of your recommended 5K1.1 departure until all debriefings were concluded, there can be no reasoned dispute that the only issue being considered was how much below 50% you would recommend." Id.
Subsequently, prior to a November 15, 2004 status conference hearing, Pings presented a second proposed plea agreement to Griffin. That agreement stipulated that movant was "criminally responsible for 10 kilos of cocaine," which carried a mandatory minimum sentence of 10 years in prison. The agreement proposed a possible sentence of as low as 8 years in prison, depending on the level of movant's cooperation. Dckt. No. 375 at 11-12; Dckt 348-1 at 56-67. Pings later stated in a letter to Mr. Griffin that this offer expired on January 31, 2005.*fn4 Dckt. No. Id. at 22. 348-1 at 12. Movant declares that he was not informed of this offer by Mr. Griffin until "just before trial started on March 1, 2005," and even then, not all of the details were explained to him. Id. at 11. He did not see the actual written offer until after his trial had concluded. Id. Movant declares that if he had been aware of this plea offer before it expired, he "certainly would have accepted it." Id. at 13.*fn5
Mr. Griffin subsequently told movant that he had spoken to Pings' supervisor in an attempt to get a firm commitment for a government recommendation of a 50% reduction in movant's sentence for his cooperation, but that the supervisor had refused to make this commitment. Dckt. No. 348-1 at 12. Griffin informed movant that he would "have to go to trial in order to get at least a 50% reduction" of his sentence and to "bring [his] sentence down to around 5 years." Id. Griffin also stated that if movant accepted any plea offer from the government he would lose the ability to challenge the government's recommendation with regard to the amount his sentence could be reduced due to his cooperation. Id. at 13. Later, at movant's sentencing proceedings, Mr. Griffin informed the court that movant decided to go to trial because the government would not honor its original agreement to give him a 50% sentence reduction based on his cooperation during the debriefings. Id. at 13, 77-78. Griffin explained:
I think factually what happened, we accepted the original agreement. When the government came back with the 28 percent, we rejected that because that was not our agreement. Our agreement was that Mr. Khera has already earned 50 percent. That's why this case went to trial.
Had the government given us the 50 percent they recommended to Mr. Garcia, that Mr. Khera had already earned, we would not have gone to trial. So what we rejected was when the government changed the terms of the original agreement.
In his declaration, movant states that he received the following advice from Mr. Griffin regarding his sentence exposure:
In late January or early February, 2005, Mr. Griffin told me that I had to go to trial in order to have any opportunity to show that Anne Pings was acting in bad faith concerning the reduction of my sentence due to my cooperation. If I accepted any plea offer from the government, he said, I would lose the ability to challenge the government's recommendation on how amount [sic] my sentence should be reduced due to my cooperation. (At my sentencing hearing on January 30, 2006, Mr. Griffin acknowledged that "we" went to trial because the government would not honor its agreement to give a 50% reduction to my sentence for my cooperation.) He also said there was no downside to going to trial. He explained that in order to go above Level 32, the indictment would have to charge and the jury would have to find that I was involved with more than fifteen kilograms of cocaine. Since the indictment did not charge that I was involved with more than fifteen kilos, Mr. Griffin explained that my exposure could not be more than ten years. He said that the trial would also show, not that I was innocent, but that I my [sic] role in the conspiracy was less than what my co-defendants were claiming. After trial, and we all assumed that I would be convicted, Mr. Griffin said he would show at a sentencing hearing that Anne Pings was acting in bad faith concerning the reduction of my sentence for cooperation. Mr. Griffin said he would show that I was entitled to at least a 50% reduction for my cooperation. If he was right, Mr. Griffin said, my sentence would be about 5 years. If he was wrong, and I only got the 28% reduction that Anne Pings promised in her letter of January 28, 2004, then my sentence would be approximately 7 years. At no time did Mr. Griffin discuss with me any possible adjustments to my sentence for obstruction of justice, possession of a firearm, or a leadership role. At no time did Mr. Griffin discuss with me what would happen if the jury found I was involved with more than 15 kilos of cocaine. I believed, based upon what Mr. Griffin told me, that if I went to trial my maximum exposure was 10 years with the possibility that I could get as little as 5 years. That is why I agreed to go to trial.
Dckt. No. 348-1 at 13-14.
During his trial, movant wrote Mr. Griffin a note which ...