United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE, OR
DANA M. SABRAW, United States District Judge
case returns to the Court on Defendant's motion to vacate
his sentence and for resentencing pursuant to 28 U.S.C.
§ 2255. The Government filed an opposition to the
motion, and Defendant filed a traverse. For the reasons set
out below, the motion is denied.
August 20, 2013, the Government filed a Bill of Information
for Wire Fraud and Notice of Forfeiture against Defendant in
the United States District Court for the Eastern District of
Louisiana. The case was transferred to this Court on November
13, 2013. On February 28, 2014, Defendant entered a guilty
plea to the charge. On January 29, 2015, the Court sentenced
Defendant to a prison term of 24 months. On November 30,
2015, Defendant filed the present motion. The Government
filed its opposition to the motion on April 18, 2016, and
Defendant filed his traverse on May 2, 2016.
support of the present motion, Defendant argues he received
ineffective assistance of counsel in violation of the Sixth
Amendment. An attorney's representation violates the
Sixth Amendment right to counsel if two factors are met.
See Strickland v. Washington, 466 U.S. 668 (1984).
First, the attorney's representation must fall below an
objective standard of reasonableness. Id. at 688.
Second, there must be prejudice, i.e., a reasonable
probability that but for counsel's errors, the result of
the proceedings would have been different. Id. at
Defendant argues his trial counsel was ineffective in failing
to investigate, present evidence and explain the transaction
between Defendant and Daniel Hendrickson. Contrary to
Defendant's assertion, however, trial counsel did
investigate the transaction between Defendant and Daniel
Hendrickson. (See Govt's Opp'n to Mot., Ex.
13). Specifically, trial counsel employed two investigators
to find Mr. Hendrickson's contact information, and one of
those investigators sent Mr. Hendrickson an email about the
case. (Id. ¶ 5.) In that email, the
investigator stated she was "trying to get confirmation
of the repayment [of the loan from Mr. Hendrickson to
Defendant] along with a copy of the promissory note for the
loan." (Id.) The investigator gave Mr.
Hendrickson her contact information in that email.
response to that email, Mr. Hendrickson left a voicemail for
the investigator. (Id. ¶ 7.) Trial counsel
listened to the voicemail, "and Hendrickson was very
upset with Hofmann. Hendrickson said Hofmann still owed him
money. [Trial counsel] had the impression that Hendrickson
was hostile toward Hofmann and ‘out for
blood.'" (Id.) Trial counsel then contacted
Defendant about Mr. Hendrickson's voicemail.
(Id. ¶ 8.) After discussing the matter, trial
counsel and Defendant "concluded that we would not
pursue Hendrickson any further." (Id.)
this evidence, Defendant now claims his trial counsel's
investigation was constitutionally inadequate because he
failed to speak to Mr. Hendrickson and also failed to ask Mr.
Hendrickson "whether the payments made to him were on a
loan related to the Covington Medical Arts Pavilion[.]"
(Traverse at 5.) Defendant's current counsel asserts he
called Mr. Hendrickson and received "a return phone call
in ten minutes." (Id. at 4 n.3.) Current
counsel obtained a Declaration from Mr. Hendrickson, in which
he states the money he provided to Defendant was a
"loan." (Def.'s Mot., Ex. D ¶ 5), and he
also obtained an unsigned copy of the written agreement
between Mr. Hendrickson and Defendant's partner Mr.
Monahan. (Def.'s Mot., Ex. B.) Defendant argues that if
his trial counsel had obtained this evidence, his sentence
would have been different.
Court disagrees with both assertions. First, trial
counsel's failure to speak personally with Mr.
Hendrickson was not objectively unreasonable. After trial
counsel's investigator reached out to Mr. Hendrickson,
the investigator received a voicemail from Mr. Hendrickson in
which he sounded "very upset[.]" (Govt's
Opp'n to Mot., Ex. 13 ¶ 7.) Trial counsel "had
the impression that Hendrickson was hostile toward Hofmann
and ‘out for blood.'" (Id.) Under
these circumstances, it was reasonable for trial counsel to
communicate his impression to his client, and for trial
counsel to decide, after consultation with his client, not to
pursue Mr. Hendrickson any further. Because trial
counsel's "actions reflect a deliberate choice of
reasonable strategy, they do not fall outside reasonable
professional norms." Miles v. Ryan, 713 F.3d
477, 491 (9th Cir. 2013). Furthermore, even if
trial counsel had submitted the evidence submitted with the
present motion, Defendant has not shown that his sentence
would have been different. Although Mr. Hendrickson
considered the transaction with Mr. Monahan to be a loan,
(Def.'s Mot., Ex. D ¶ 8), the written
agreement, which is unsigned, repeatedly refers to the
transaction as a "Short Term Investment, " not a
loan. (Def.'s Mot., Ex. B.) At a minimum, the evidence is
in conflict, and it does not satisfy Defendant's burden
to show there is a reasonable probability his sentence would
have been different.
these reasons, the Court denies Defendant's motion to
vacate or set aside his sentence ...