United States District Court, N.D. California, San Jose Division
ORDER DENYING PETITIONER'S MOTION TO SET ASIDE, CORRECT, OR VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255
LUCY H. KOH, District Judge.
On March 18, 2013, Petitioner Thurman Smith ("Petitioner"), in pro se, filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence and arguing that he received ineffective assistance of counsel on four grounds: (1) counsel was ineffective because counsel did not investigate or raise the issue of Petitioner's conviction for the same conduct in state court; (2) counsel was ineffective because counsel failed to object to purported errors in the Sentencing Guidelines calculation; (3) counsel was ineffective because counsel failed to appeal the judgment against Petitioner following a plea pursuant to which Petitioner waived the right to appeal; and (4) counsel was ineffective because counsel failed to object to the length and special terms of supervised release. See Motion to Set Aside, Correct, or Vacate Sentence Pursuant to 28 U.S.C. § 2255 ("Petition"), ECF No. 88.
On June 19, 2013, the Court issued an Order directing the United States to respond. ECF No. 92. The United States filed its Opposition on July 19, 2013. ECF No. 95. After requesting and receiving an extension, Petitioner filed his Reply on September 23, 2013. ECF No. 99.
A. The Indictment and Petitioner's Plea Agreement
On March 16, 2011, Petitioner was indicted in the Northern District of California, along with two co-conspirators, for one count of conspiracy to commit access device fraud, in violation of 18 U.S.C.§ 1029(b)(2); four counts of access device fraud, in violation of 18 U.S.C. § 1029(a)(2) and (b)(1); and four counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). The Indictment alleged that between 2009 and 2010, Petitioner stole a number of credit cards from employees at Veterans' Affairs medical facilities. See ECF No. 1 ¶ 8. Petitioner and his co-conspirators allegedly used those and other stolen credit cards to make purchases at a variety of retail outlets. Id. Petitioner had previously been arrested for the theft of a credit card from Stanford Medical Center in February 2010, and was ultimately convicted in state court for one count of Use of Personal Identification Information without Authorization, and two counts of Second Degree Burglary. Presentence Investigation Report ¶ 55. He was paroled in February 2011 and arrested one month later, following the March 16, 2011 indictment, on the charges in the instant case. Id.
On October 26, 2011, with the assistance of appointed counsel, Petitioner executed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Plea Agreement, ECF No. 46. Federal Rule of Criminal Procedure 11(c)(1)(C) provides that where the parties "agree that a specific sentence... is the appropriate disposition of the case... such a recommendation or request binds the court once the court accepts the plea agreement." The Plea Agreement provided, in part:
The Defendant's Promises
1. I agree to plead guilty to Counts One through Nine of the captioned indictment charging me with Conspiracy to Commit Access Device Fraud, in violation of 18 U.S.C.§ 1029(b)(2); Access Device Fraud, in violation of 18 U.S.C. § 1029(a)(2) and (b)(1); and Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1)....
3. I agree to give up all rights that I would have if I chose to proceed to trial, including the rights to a jury trial with the assistance of an attorney; to confront and cross-examine government witnesses; to remain silent or testify; to move to suppress evidence or raise any other Fourth or Fifth Amendment claims; to any further discovery from the government.
4. I agree to give up my right to appeal my conviction, the judgment, and orders of the Court. I further agree to waive any right I may have to appeal any aspect of my sentence, including any orders relating to forfeiture and/or restitution.
5. I agree to waive any right I may have to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, or motion under 18 U.S.C. § 3582, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated.
6. I agree not to ask the Court to withdraw my guilty pleas at any time after they are entered, unless the Court declines to accept the sentence agreed to by the parties. I agree that the government may withdraw from this Agreement if the Court does not accept the agreed upon sentence set out below. I agree that if the Court does not accept the agreed upon sentence set out below, the statute of limitations shall be tolled from the date I signed the plea agreement until the date the Court does not accept the agreement. I further agree not to ask the Court for a continuance of my sentencing hearing without the consent of the government.
7. I agree that my sentence should be calculated pursuant to the Sentencing Guidelines. I understand that the Court, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing, together with the factors set forth in 18 U.S.C. § 3553(a). I also agree that the Sentencing Guidelines range will be calculated as follows and that I will not ask for any other adjustment to or reduction in the offense level or for a downward departure from the Guidelines range:
U.S.S.G. § 3D1.2(d)
a. Base Offense Level: 6 U.S.S.G. § 2B1.1(a)(2)
b. Loss amount more than $10, 000: U.S.S.G. § 2B1.1(b)(1)(C)
c. More than 10 victims: U.S.S.G. § 2B1.1(b)(2)(A)
d. Acceptance of Responsibility: -2 U.S.S.G § 3E1.1(a)
e. Adjusted offense level: 10
a. 24 months in addition to any sentence I may receive for the other violations to which I am pleading guilty 18 U.S.C. § 1028A(b)(2)
8. I agree that a reasonable and appropriate disposition of this case, under the Sentencing Guidelines and 18 U.S.C. § 3553(a), and the sentence to which the parties have agreed, is as follows: 24 months imprisonment on Counts One Through Five, 24 months imprisonment on each of Counts Six through Nine (concurrent with each other (18 U.S.C. § 1028A(b)(4)), for a total term of imprisonment of 48 months; 3 years of supervised release (with conditions to be fixed by the Court); $900 special assessment; and restitution in an amount to be determined by the Court. I agree to pay restitution for all the losses caused by all schemes or offenses with which I was charged in this case, and I agree that the amount of restitution will not be limited to the loss attributable to the counts to which I am pleading guilty....
10. I agree that this Agreement contains all of the promises and agreements between the government and me, and I will not claim otherwise in the future....
The Defendant's Affirmations
15. I confirm that I have had adequate time to discuss this case, the evidence, and this Agreement with my attorney, and that my attorney has provided me ...