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United States of America v. Marvin Darryl Mccaleb

May 13, 2013

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
v.
MARVIN DARRYL MCCALEB, DEFENDANT/PETITIONER.



The opinion of the court was delivered by: Consuelo B. Marshall United States District Judge

ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

The matter before the Court is Petitioner's Ineffective Assistance of Counsel Claim under 28 U.S.C. §2255. The Court held evidentiary hearings on November 1 and November 20, 2012.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2255.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Marvin Darryl McCaleb (hereinafter "Petitioner") was convicted after a jury trial of two federal drug offenses on April 26, 2005. (CR 03-849 CBM-1 Docket Nos. 281, 284, 367, 368; Gov't Opp'n to Def.'s Mot. for Relief Pursuant to 28 U.S.C. § 2255 ("Gov't Opp'n") at 18:15--19, CV 10-4313, Docket No. 15.) Petitioner was sentenced to a term of life imprisonment on June 26, 2006. [CR 03-849 CBM-1 Docket No. 379.]

Petitioner was initially represented by court-appointed attorney Dominic Cantalupo [CR 03-849 CBM-1 Docket No. 50], who was later replaced due to a conflict of interest by court-appointed attorney Yolanda Barrera. [CR 03-849 CBM-1 Docket No. 137.] Barrera was replaced due to a conflict of interest by court-appointed attorney Ken Behzadi. [CR 03-849 CBM-1 Docket No. 144.] Behzadi was replaced by retained attorney Michael Evans. [CR 03-849 CBM-1 Docket No. 193.] Evans was Petitioner's counsel at trial. [CR 03-849 CBM-1 Docket Nos. 195, 239.]

After his conviction and sentencing, Petitioner appealed, and on January 13, 2009, the Ninth Circuit affirmed Petitioner's conviction. [CR 03-849 CBM-1 Docket No. 431] On appeal, Petitioner was represented by court-appointed attorney Verna Wefald. [CR 03-849 CBM-1 Docket No. 438.]

On June 11, 2010, Petitioner filed his 28 U.S.C. § 2255 petition, asserting twelve grounds of relief, mostly related to ineffective assistance of counsel. (Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Mot. to Vacate") at 1.) [CV 10-4313 Docket No. 1.] On February 14, 2011, Petitioner filed a Motion for a Hearing re: Judicial Notice of Newly Discovered Evidence, arguing that the transcript of a June 3, 2004 status conference constituted newly discovered evidence of a written plea agreement and required an evidentiary hearing. [CV 10-4313, Docket No. 21.] Petitioner argued that he was unaware of the transcript until he received Mr. Cantalupo's interrogatory responses on January 14, 2011. (Id.) The transcript reflects a status conference on June 3, 2004 regarding Petitioner's requests for new counsel. (Id.) During the status conference, Mr. Cantalupo referred to a written plea agreement and the Court questioned Petitioner about the written plea agreement. (Id.) The Government filed its response to Petitioner's motion on February 23, 2011. [CV 10-4313, Docket No. 23.] On April 19, 2011, Petitioner filed a Motion for Leave to Supplement The 2255 Based on Newly Discovered Evidence, arguing again that the June 3, 2004 transcript constituted newly discovered evidence and required an evidentiary hearing. [CV 10-4313 Docket No. 25.]

The Court granted Petitioner's Motion for Leave to Supplement the 2255 but denied Petitioner's request to hold an evidentiary hearing based on the June 3, 2004 transcript, finding that the transcript was not newly discovered evidence because the transcript was part of the record in the case. [CV 10-4313 Docket Nos. 21, 25, 28.] The Court denied Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 except for the sole issue of "Claim L-12." [CV 10-4313 Docket Nos. 1, 28.] The Court granted an evidentiary hearing on the sole issue of "Claim L-12," Petitioner's claim that trial counsel was ineffective for giving erroneous legal advice. [CV 10-4313 Docket No. 28.] "Claim L-12" alleges Petitioner's trial counsel Mr. Evans erroneously told him that one of Petitioner's prior convictions would not count for sentencing purposes and so Petitioner was not facing the possibility of a mandatory life sentence. (Mot. to Vacate at 57.) But for the erroneous advice, Petitioner would have entered a guilty plea rather than proceeding to trial. (Id.)

At the November 1, 2012 evidentiary hearing, Petitioner clarified that his "Claim L-12" was summarized in Paragraph 3 of the Declaration of Marvin Darryl McCaleb attached to the Petition. (Nov. 1, 2012 Tr. at 14.) In his Declaration, Petitioner states "[i]f correctly advised by Mr. Evans that if convicted I would be sentenced to a mandatory life in prison, I would have accepted the offer of pleading open to the court and the government dismissing the information filed under section 851. But for the error of the unreliable advice about the prior not being counted for sentencing, I would never have gone to trial knowing if convicted I would be sentenced to mandatory life in prison. I would have pleaded guilty to both counts of the ind[i]ctment." (CV 10-4313 Docket No. 1)

Following the evidentiary hearing, the Court makes the following Findings of Fact and Conclusions of Law.*fn1

FINDINGS OF FACT

1. Petitioner was charged in two counts of the First Superseding Indictment on November 23, 2004. Count 1 charged Petitioner with being a member of a PCP conspiracy involving more than 100 grams of pure PCP, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Count 2 charged illegal possession of a listed chemical, in violation of 21 U.S.C. § 841(c)(2). (Gov't's Sentencing Position re Defendant ...


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