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United States v. Gill

United States District Court, E.D. California

April 2, 2014



KENDALL J. NEWMAN, Magistrate Judge.

Movant is a federal prisoner proceeding without counsel. Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] In September 2009, movant pled guilty to wire fraud (18 U.S.C. § 1343) and making a false statement (18 U.S.C. § 1001(a)(2)). He seeks post-conviction relief alleging that defense counsel was ineffective at sentencing. Movant also filed a motion to amend his § 2255 motion. For the reasons set forth below, the court grants the motion to amend and recommends that the amended § 2255 motion be denied.

I. Factual and Procedural Background

On July 13, 2006, the government filed a criminal complaint against movant in case number 2:06-cr-00312-LKK-JFM-1. ECF No. 1. The criminal complaint alleged that movant committed mail fraud and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. Id . An arrest warrant issued and movant was brought before the court on July 14, 2006. ECF Nos. 2, 3. Movant was release pursuant to the "Bail Reform Act of 1984." ECF No. 4. On August 3, 2006, the government filed an indictment for five counts of wire fraud in violation of 18 U.S.C. § 1343. ECF No. 11. Therein, the indictment alleged movant "devised and intended to devise a scheme and artifice to obtain money by means of false and fraudulent pretenses, representations, and promises." Id. at 2. The indictment described the alleged scheme to defraud as follows:

[Movant], in his capacity as an interstate motor carrier, agreed to transport loads of freight, but then acted as an interstate broker and hired different interstate motor carriers to actually transport these loads. Though he did not transport these loads of freight, [movant] received payments for these deliveries, and then withheld payments from the motor carriers who actually transported the loads. As a result of the aforesaid scheme and artifice, [movant] wrongly defrauded various interstate motor carriers.

Id. at 2-3. During movant's August 3, 2006 arraignment, he entered a plea of not guilty and requested a jury trial. ECF No. 13.

On March 1, 2007, the government filed a superseding indictment that alleged six counts of wire fraud in violation of 18 U.S.C. § 1343, and five counts of making a false statement in violation of 18 U.S.C. §§ 1001(a)(2) and 2. ECF No. 32. Movant pled not guilty during an arraignment held on March 30, 2007. ECF No. 39.

On March 6, 2008, the government filed a new indictment in case number 2:08-cr-00107-LKK-KJN-1. ECF No. 1, Case No. 08-cr-00107. The indictment alleged two counts of wire fraud in violation of 18 U.S.C. § 1343. Id . According to the indictment, while he was on pretrial release for the 2006 case, movant committed the same offense of wire fraud between August 2007 and October 2007, and in the same manner. Id . Movant was arrested and arraignment proceedings were held on March 10, 2008. ECF No. 7, Case No. 08-cr-00107. Movant pled not guilty and the court ordered him detained in light of the prior charges that he was released on and his alleged failure to abide by the conditions of release. ECF Nos. 7, 8 & 21, Case No. 08-cr-00107.

On May 13, 2008, the two cases were consolidated. ECF No. 73.

On May 20, 2008, the court issued an order revoking movant's pretrial release in the 2006 case; thus mooting the issue of reconsideration of movant's detention in the 2008 case. ECF No. 77.

On August 25, 2008, movant filed a motion for release from custody due to alleged inadequate medical care that exasperated his preexisting medical conditions. ECF No. 87. The court granted movant's motion and he was ultimately placed on supervised pretrial release with a special condition of home incarceration. ECF Nos. 88, 96.

On September 22, 2009, the court held a change of plea hearing. Opposition, ECF No. 191, at Ex. 1. Therein, the court advised movant of his constitutional rights. Id. at 2-7. Movant was placed under oath and the court questioned him further. Id. at 9-10. The government recited the elements of each of the offenses. Id. at 10. Movant then pled guilty to counts one through eleven in the superseding indictment in the 2006 case, and to counts one and two in the indictment in the 2008 case; and the court accepted movant's guilty plea. Id. at 13. The court referred the matter to the probation department for its report and recommendation. Id.

On or around August 23, 2011, the probation department issued a presentence investigation report ("PSR"). On March 8, 2012, movant, through counsel, filed a sentencing memorandum. ECF No. 170. On March 20, 2012, respondent filed a sentencing memorandum. ECF No. 171. On March 27, 2012, the court held a hearing on the probation department's report and recommendation and the matter of judgment and sentencing. Opposition, Ex. 2. After hearing arguments from both parties, the court sentenced movant to 130 months imprisonment on all counts in the 2006 and 2008 cases. Id. at 13.

On March 29, 2012, movant filed a notice of appeal to the Ninth Circuit. ECF No. 173. On May 16, 2012, the Ninth Circuit granted movant's motion for voluntary dismissal of his appeal. ECF No. 179.

On November 19, 2012, movant filed his original § 2255 motion with this court. ECF No. 182. The court notes that the § 2255 motion is unsigned. On January 18, 2013, prior to respondent filing a response to movant's motion, movant filed a motion to amend and an amended § 2255 motion. ECF No. 189. On March 18, 2013, respondent opposed movant's motion to amend and his § 2255 motion. ECF No. 191. On March 29, 2013, movant filed a reply thereto. ECF No. 193.

II. Motion to Amend

An amendment to a § 2255 motion that the court has not yet ruled on is governed by Fed.R.Civ.P. 15(a). See Mayle v. Felix , 545 U.S. 644, 654 (2005); see also In re Morris , 363 F.3d 891, 893 (9th Cir. 2004) (Rule 15(a) applies to habeas actions with the same force that it applies to other civil cases). As applied to habeas corpus actions, pursuant to 28 U.S.C. § 2242 and Rule 12 of the Rules Governing Section 2255 Cases, a movant may amend a § 2255 motion "once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). Movant did not amend his motion within 21 days after serving it and therefore his opportunity to amend "as a matter of course" has expired. Nonetheless, Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). Factors to be considered when ruling on a motion to amend a habeas corpus petition include bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether or not the party has previously amended his pleadings. Bonin v. Calderon , 59 F.3d 815, 845 (9th Cir. 1995).

Upon considering the requisite factors in deciding a motion for leave to file an amended § 2255 motion, the court grants movant's motion to amend. Here, movant filed a proposed amended motion that sets forth claims that are similar to those in his original § 2255 motion, but with some expansion of movant's arguments. ECF No. 189. Also relevant to the court's analysis is the fact that movant's original motion is unsigned in violation of Rule 11(a) of the Federal Rules of Civil Procedure.[2] ECF No. 182. Finally, movant filed his motion to amend before respondent filed a response, and respondent addressed movant's amended motion in its March 18, 2013 opposition. ECF No. 191 at 4 n.1. The court finds that because movant has not presented any substantively new claims in his amended motion and movant's original motion was unsigned, leave to amend will be granted. Because respondent addressed movant's amended motion in his March 18, 2013 opposition, he will not be ordered to respond.

Accordingly, the motion to amend the § 2255 motion is granted and the Clerk of the Court is directed to file the proposed amended motion to vacate, set aside, or correct movant's sentence pursuant to 28 U.S.C. § 2255 in both of movant's cases as a first amended motion in the court's docket. The original motion will be disregarded. Movant's first amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is submitted, and the court now turns to the claims raised therein.

III. Legal Standards

A. 28 U.S.C. § 2255

28 U.S.C. § 2255 provides that:

[a] prisoner under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Id. A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States , 772 F.2d 525, 526 (9th Cir. 1985).

B. Ineffective Assistance of Counsel

The standard for an ineffective assistance of counsel claim is set forth in Strickland v. Washington , 466 U.S. 668 (1984). First, movant must show that his counsel's representation fell below an "objective standard of reasonableness." Id. at 688. This is a deferential standard in which the "distorting effects of hindsight" must be avoided. Id. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and it is movant's burden to overcome the presumption that the challenged action was sound trial strategy. Id. at 689. Second, movant must establish that prejudice resulted from his counsel's faulty performance. Id. at 692. To do so, movant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Where a defendant pled guilty and is asserting ineffective assistance of counsel, the prejudice requirement focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. Movant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty ...

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