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Trap v. United States

United States District Court, Ninth Circuit

June 3, 2013

MICHAEL TRAP, Petitioner,
UNITED STATES OF AMERICA, Respondent. No. 10cr912 BEN


ROGER T. BENITEZ, District Judge.


Petitioner Michael Trap's motion to accept his amended § 2255 motion is granted. Now before the Court is Trap's amended motion to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255. Trap seeks relief on several grounds, including claims of ineffective assistance of counsel. For the reasons given below, Trap's motion to collaterally attack his conviction and sentence is denied.


Trap and his co-conspirators operated a fraudulent home loan modification operation. He was charged by Information and thereafter entered into a plea agreement and pled guilty to charges of violating 18 U.S.C. § 371 (conspiracy to commit wire fraud and money laundering) and 18 U.S.C. §§ 2 and 1957 (money laundering and aiding and abetting). The signed plea agreement contains Trap's express waiver of his right to collaterally attack his guilty plea, conviction, or sentence. During the Rule 11 plea colloquy with the Magistrate Judge, Trap once again waived his right to collaterally attack his plea, conviction, or sentence (so long as he was sentenced within the Sentencing Guidelines range recommended by the Government). Later, he was sentenced to a sentence at the low end of the Guidelines range recommended by the Government - and well below the sentence recommended by the Probation Officer.

The District Court accepted the guilty plea. At sentencing, the Probation Officer calculated a Guidelines range of 57 to 71 months, and recommended a 57-month sentence. The Government, on the other hand, calculated a Guidelines range of 30 to 37 months, and recommended a sentence of 30 months. The Court imposed a sentence of 30 months imprisonment and restitution in the amount of $460, 249 jointly and severally with Trap's co-defendants.

At the conclusion of the sentencing hearing, after sentence was imposed, Trap, for the third time, waived his right to collateral attack. The Court asked Trap: "Do you acknowledge, sir, that you have, in fact, waived your right to appeal and collateral attack?" Trap responded: "Yes."

Now, in spite of his waivers, Trap seeks to collaterally attack his conviction and sentence on a number of grounds generally grouped as: (1) prosecutorial misconduct claims; (2) ineffective assistance of counsel claims; (3) plain error claims; and (4) evidence obtained by unconstitutional search and seizure claims.


I. Waiver

Courts enforce plea agreements containing knowing and voluntary waivers of statutory rights of appeal or collateral attack because such "waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements." United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (quoting United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998)) (courts enforce a waiver of appeal, as long as the waiver is "knowingly and voluntarily made" and "encompasses the defendant's right to appeal on the grounds claimed on appeal"). The Ninth Circuit recognizes that strong public policy considerations justify the enforcement of a defendant's waiver of his right to appeal or to collaterally attack a judgment. United States v. Novarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Waivers play an important role in the plea bargaining process and help ensure finality. Id. at 322. The finality of judgments benefits both the government and the courts. United States v. Littlefield, 105 F.3d 527, 530 (9th Cir. 1997). In exchange for the defendant's guilty plea and waiver of rights to appeal and collaterally attack, the government and the courts need not spend resources on litigation after the sentencing. The defendant gets a lower sentencing recommendation and the court is more willing to agree to a lower sentence than would be the case absent the waivers.

A "defendant may waive the statutory right to file a § 2255 petition challenging the length of his sentence" where the defendant: (1) expressly waives the right of collateral attack; and (2) does so knowingly and voluntarily. United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

Trap's plea agreement provides that he expressly "waives, to the full extent of the law, any right to appeal or collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence greater than the high end of the guideline range... recommended by the Government pursuant to this plea agreement at the time of sentencing." During a thorough Rule 11 colloquy with Trap prior to accepting his guilty plea, the Magistrate Judge discussed this waiver provision and received confirmation from both Trap and his counsel that Trap understood. The present claims collaterally attacking his guilty plea, conviction, and sentence in his § 2255 motion thus fall within the scope of the express language of the waiver provision. Accordingly, by his plea agreement and his representations in open court, Trap waived his right to collaterally attack his guilty plea, conviction, and sentence. Trap's knowing and voluntary waiver of his right to collaterally attack his conviction and sentence requires denial of his § 2255 motion. Navarro- Botello, 912 F.2d at 322 (finding a defendant could not ignore his part of the bargain in a plea agreement after obtaining concessions from the government).

Whether an exception exists - for a federal prisoner's collateral attack based upon an assertion that the plea bargain and its waiver was the product of ineffective assistance of counsel - has not been decided by either the United States Supreme Court or the Court of Appeals for the Ninth Circuit. See Washington v. Lampert, 422 F.3d 864, 869-73 (9th Cir. 2005) (holding that a state plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver, but noting that the court has not decided the issue with respect to a federal defendant's waiver of a § 2255 collateral attack ); see also Pruitt, 32 F.3d at 433 ("We doubt that a plea agreement could waive a claim of ineffective assistance.... However, we need not face the issue here..."); Abarca, 985 F.3d at 1014 ("While we do not hold that Abarca's waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver..."); United States v. De Jesus Gutierrez, 434 Fed.App'x. 606, 606 n.1 (9th Cir. 2011) ("Because that issue is not presented here, we need not decide whether even an express waiver of all § 2255 rights could be enforced to preclude an ineffective assistance of counsel claim implicating the voluntariness of the waiver itself.'" (quoting United States v. Jeronimo, 398 F.3d 1149, 1156 n.4)).

In Trap's case, the evidence demonstrates that he knowingly and voluntarily waived his right to collaterally attack at the conclusion of the sentencing hearing. By the time of this third waiver, Trap had been made aware of the charges, described for the Magistrate Judge the factual basis for his guilty plea, heard the sentence actually imposed, had the opportunity to allocute, and had received assistance from his retained counsel throughout - assistance about which he had never complained to the Court and assistance from an attorney whom he had the right to replace at any time. Trap waived his right to collaterally attack his conviction or sentence in this motion brought under § 2255.

II. Legal Standard for a Motion to Vacate, Set Aside, or Correct Conviction and Sentence Pursuant to 28 U.S.C. § 2255

Even if the Ninth Circuit decides that an exception to a valid collateral attack waiver exists for certain ineffective assistance of counsel claims, the remaining claims of prosecutorial misconduct, plain error, and unconstitutional search and seizure would still be waived. At the same time, the § 2255 claim that it was the ineffective assistance of his counsel that led to his plea agreement would still fail.

Trap brings the present motion to collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides that a federal prisoner seeking relief from a custodial sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence" on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack...." 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962) (internal quotation marks omitted). In contrast, "errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255." United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981).

When a motion "presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required." United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (evidentiary hearing unnecessary if ...

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