United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. In 2010, following her entry of a guilty plea, movant was convicted of one count of wire fraud in violation of 18 U.S.C. § 1343. She now seeks post-conviction relief on the grounds that her trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.
In January, 1994, movant pled guilty to bank fraud charges in the United States District Court for the Northern District of Texas. (Movant's Opening Brief on Appeal (hereinafter AOB), 2010 WL 6834305, at *5.) After serving the term of imprisonment imposed as a result of that conviction, movant was released and began serving a term of supervised release. (Id.; ECF No. 111 at 7.) Supervision was later transferred to the Northern District of California. (ECF No. 111 at 7.)
In 2002, movant was charged in the United States District Court for the Northern District of California with eighteen separate violations of the terms of her supervised release. (AOB at 5; ECF No. 111 at 7.) On January 10, 2005, movant admitted one of the charged violations. (AOB at 5.) At the admission hearing, the prosecutor stated the terms of the parties' agreement on the record and represented that the government would not "pursue any other charges arising out of the investigation that led to the filing of the supervised release petition." (Id.; see also ECF No. 105 at 17.) Movant was then sentenced to an additional 21 months in prison for violating the terms of her supervised released. (AOB at 5.) Movant served that additional time and was released from confinement on May 10, 2006. (Id.)
In January of 2007, movant was arrested on fraud charges brought against her in the Eastern District of California. (AOB at 5; ECF No. 105 at 17.) That indictment alleged that petitioner devised a scheme to defraud a Robert L. Andes in connection with a purported investment deal. (ECF No. 105 at 17; AOB at 7.) The indictment charged forty counts of wire fraud in violation of 18 U.S.C. § 1343 and a scheme spanning the time period from December of 2001 to at least August 2006. (Id.) When she was arrested, movant told FBI agents that the allegations contained in the Eastern District indictment had been resolved in connection with the supervised release violation proceedings in the Northern District of California, described above. (ECF No. 105 at 17, 50.)
After first being represented by an assistant federal defender in the Eastern District, movant eventually obtained representation by appointed panel attorney Joseph J. Wiseman. Movant also told attorney Wiseman that the charges contained in the Eastern District indictment had been resolved in the Northern District case. (ECF No. 105 at 17, 74; AOB at 7.) In response and at movant's request, attorney Wiseman examined the violation petition filed in the Northern District case. (ECF No. 105 at 75.) He concluded that the proceedings in the Northern District "would have no impact on the government's ability to bring charges against [movant] here in [the Eastern District]." ( Id. at 78.) His opinion in this regard was based on: (1) his experience that it was "very difficult" for a prosecutor in one district to "bind a district that's not part of the proceedings;" (2) the fact that the allegations of the Eastern District indictment concerned events that occurred after the events alleged in the Northern District matter; and (3) his opinion that the supervised release violations alleged in the Northern District matter were "more... of a routine procedural or technical violation of her terms of supervised release, " as opposed the "substantive crime" that movant was charged with in the Eastern District indictment. ( Id. at 76-77.) Attorney Wiseman considered filing a motion to dismiss the Eastern District indictment on the grounds that it was precluded by the supervised release violation proceedings in the Northern District but concluded that such a motion would not succeed. ( Id. at 79.)
Movant subsequently discharged panel attorney Wiseman as her counsel of record and retained attorney David Silber to represent her in the Eastern District prosecution. (AOB at 7.) Attorney Silber was aware that movant had expressed her belief that the new Eastern District charges had been resolved by the as part of the supervised release violation proceedings in the Northern District. (ECF No. 105 at 109.) Attorney Silber asked attorney Wiseman about the impact of the Northern District supervised release violation resolution on the Eastern District charges. (ECF No. 105 at 81.) Attorney Wiseman informed attorney Silber that "the resolution of [movant's] Northern District problems had nothing to do with the present case in the Eastern District." (Id.) Attorney Silber investigated the matter further by making telephone calls to movant's probation officer, but he was not able to speak with the probation officer during the time he represented movant. ( Id. at 109.) Attorney Silber formed the opinion that the supervised release violations alleged in the Northern District were not the same as the new wire fraud charges alleged in the Eastern District indictment. ( Id. at 109, 112-13.) Silber informed movant that he did not believe it to be viable to move to dismiss the new indictment on the grounds that those charges had been resolved in the Northern District supervised release violation proceedings. ( Id. at 115.) Attorney Silber's opinion in this regard was based on his conversations with attorney Wiseman and the Assistant U.S. Attorney prosecuting the Eastern District case. (Id.)
On August 29, 2008, movant pled guilty to Count 1 of the Eastern District indictment, in which she was charged with a violation of 18 U.S.C. § 1343 (wire fraud) in connection with a scheme to defraud Robert Andes. (ECF No. 42.) On January 23, 2009, the district court granted attorney Silber's motion to withdraw as counsel of record for movant and appointed panel attorney Krista Hart to represent movant. (ECF No. 47.) On May 7, 2009, movant, proceeding through her newly appointed counsel, filed a motion to withdraw her guilty plea. (ECF No. 59.) Therein, movant alleged that her guilty plea was invalid because her previous retained counsel Silber had "failed to adequately investigate the case" and therefore gave her the erroneous advice that the proceedings in the Northern District of California did not preclude the filing of the charges set forth in the Eastern District of California indictment. ( Id. at 1.) Citing the decision in Strickland v. Washington , 466 U.S. 668 (1984), movant argued that attorney Silber had rendered ineffective assistance of counsel in advising her whether to plead guilty to the new charges that had been brought against her. Id. at 4-7.) After an evidentiary hearing, at which both attorneys Wiseman and Silber testified, the trial court denied movant's motion to withdraw her guilty plea. (ECF No. 87.)
Following the denial of her motion to withdraw her guilty plea, movant filed a motion to dismiss the indictment on the ground that the new charges filed in the Eastern District of California violated the Double Jeopardy Clause and constituted a breach of her agreement entered into in the Northern District of California when she admitted that she had violated the conditions of her earlier supervised release term. (ECF No. 81.) Movant argued that her prosecution in the Eastern District of California was barred as a result of her previously entered admission of the supervised release violation in the Northern District of California. (Id.) The trial judge denied movant's motion to dismiss, concluding that: (1) movant had waived her double jeopardy claim by pleading guilty to the wire fraud charge in this court; (2) the Double Jeopardy Clause did not apply because the charges to which movant pled guilty in the Eastern District were not resolved by her admission of a supervised release violation in the Northern District matter; and (3) the bringing of the indictment in the Eastern District did not constitute a breach of the agreement movant entered into in the Northern District supervised release violation matter. (ECF No. 90, 92.)
On May 26, 2010, movant was sentenced to the custody of the United States Bureau of Prisons for a total term of imprisonment of 105 months. (ECF No. 97.) Thereafter, movant filed a timely appeal of her judgment of conviction. (ECF No. 94.) She characterized one of the issues she presented in her opening brief on appeal as follows: "Whether Ms. Giannini received ineffective assistance of counsel when counsel failed to conduct an adequate investigation and thus advised her to plead guilty based on incorrect and incomplete information." (AOB at 8.) Movant argued on appeal that "based on the ineffective assistance of counsel, the plea should have been withdrawn." (Id.) She also claimed, among other things, that the trial court erred when it denied her motion to withdraw her guilty plea. ( Id. at 12.) The Ninth Circuit Court of Appeals construed these arguments as claims that the trial court had erred in denying movant's motions to withdraw her guilty plea and to dismiss the indictment. United States v. Giannini, 441 Fed.Appx. 500, 501 (9th Cir. July 5, 2011). That court rejected movant's arguments, as so construed, reasoning as follows:
Although "[a] district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any fair and just reason, " United States v. Signori , 844 F.2d 635, 637 (9th Cir. 1988), a district court can also consider whether withdrawal of that plea would result in prejudice to the government, see United States v. Vasquez-Velasco , 471 F.2d 294, 294 (9th Cir. 1973). Because one of the government's key witnesses had died,  granting Giannini's request to withdraw her plea would have resulted in prejudice to the government. Accordingly, the district court did not abuse its discretion when it denied her motion to withdraw her plea. Finally, the district court did not err in finding that Giannini's earlier plea agreement's reference to the previous "investigation" unambiguously limited additional prosecution only for the specific crimes at issue in that case. See United States v. Clark , 218 F.3d 1092, 1096 (9th Cir. 2000). The 2005 plea agreement did not immunize Giannini for the fraud in which she was engaged. Moreover, as the district court found, "the fraud for which the defendant was indicted... was not reasonably encompassed in the Northern District investigation" and "includ[ing] the $4 million fraud charged in this case is patently unreasonable'" (quoting Clark , 218 F.3d at 1096-97). The district court did not err in subsequently concluding that the present indictment was not barred by the earlier plea agreement.
Id. at 501-02. The Ninth Circuit did not directly address on appeal movant's argument that her trial counsel in this case rendered ineffective ...