United States District Court, E.D. California
a federal prisoner proceeding pro se, has filed a motion to
vacate, set aside, or correct his sentence based on 28 U.S.C.
§ 2255, along with a motion to grant bail. Plaintiff
opposes both motions. For the reasons discussed in this order
both motions are DENIED.
August 6, 2014, in accordance with a plea agreement reached
with the government, defendant entered a plea of guilty to
one count of securities fraud in violation of 15 U.S.C.
§§ 77q(a) and 77x. ECF Nos. 58, 61. Plaintiff at
the time was represented by attorney Joseph Wiseman.
Id. at 61. Sentencing was initially set for November
19, 2014, id., but was continued several times
between November 19, 2014 and January 5, 2015. See
ECF Nos. 66, 67, 74, 75. On February 18, 2015, defendant
submitted a motion to terminate counsel. ECF No. 77.
February 19, 2015, the court ordered that motion filed under
seal and the sentencing hearing then set for February 25,
2015 was converted to a status conference. Id.
February 25, 2015, the court appointed a second defense
counsel, attorney Donald Heller, “for the limited
purpose of providing the defendant with a second
opinion.” ECF No. 80. Sentencing was continued to April
15, 2015, then to June 3, 2015, then to July 22, 2015. ECF
Nos. 80, 81, 84. On April 15, 2015, Mr. Heller was relieved
as second opinion counsel for defendant. ECF No. 81. On July
9, 2015, Mr. Wiseman moved to withdraw as counsel for
defendant. ECF No. 86. On July 22, 2015, the court granted
Mr. Wiseman's motion to withdraw and appointed standby
counsel, attorney Bruce Locke, initially for a one week
period. ECF No. 88. Defendant informed the court that he
wanted to move to withdraw his plea and to request an
evidentiary hearing. Id.
29, 2015, the court appointed Mr. Locke to represent
defendant and directed the parties to meet and confer
concerning a dispute between the parties concerning
defendant's mens rea. ECF Nos. 92, 97. On August
21, 2015, the parties filed a “Stipulation for
Sentencing.” ECF No. 97. The stipulation provided:
The defendant, Matthew Sarad, by and through his undersigned
attorney, and the United States, by and through its
undersigned attorney, hereby stipulate to the following facts
so as to resolve an issue that has been in contention in this
The defendant paid real scientists to perform real research,
but from the beginning he made a series of misrepresentations
to cause investors to part with money, as outlined in the
plea bargain, in violation of 15 U.S.C. §§ 77q(a)
and 77x. The plea bargain mental state discusses and includes
the standard of reckless or willful. The defendant believes
that absent a trial the lower mental state is to be presumed,
but the government disagrees.
ECF No. 97 at 1.
August 26, 2015, defendant was sentenced to forty-eight
months in prison. ECF Nos. 100, 101, 102. The sentence
reflected a downward variance from the Guideline range of 60
months, the statutory maximum. ECF No. 102. Defendant filed
his § 2255 motion on December 28, 2015. ECF No. 115. He
began serving his sentence on January 4, 2016, and his motion
to grant bail, prepared on January 4, 2016, was filed on
January 6, 2016. ECF No. 122.
DEFENDANT'S § 2255 MOTION
claims two errors: (1) his sentence is “illegal”
and he received constitutionally ineffective assistance of
counsel at sentencing; and (2) the trial court erred in
considering at sentencing examples of mens rea
offered by the government. ECF No. 115-1 at 14. Both claims
arise from defendant's contention that the plea deal he
agreed to should have been clarified to limit his mens
rea to recklessness, which would have entitled him to a
“minimal sentence, ” but that the plea agreement
presented to the court did not “contain the
defendant's clarifications.” Id. at 20-21.
Defendant asserts the presentence report presented to the
court described “defendant's actions as
‘deliberate and malicious' rather than simply
‘reckless.'” Id. at 22.
referring to his February 2015 motion to end Mr.
Wiseman's representation, defendant asserts that his
motion to terminate counsel explained that “he had not
knowingly signed the plea deal” and had taken
“issue with the government's characterization of
crimes” beyond what was contained in the plea
agreement. Id. He also requested that “his
statement of elocution (sic) [be] submitted to the court to
help make his point on mens rea.” Id.
Defendant states he also moved to withdraw his guilty plea
because of the dispute over his mens rea.
Id. at 24-25. Ultimately, the parties filed the
stipulation described above. Defendant contends 15
U.S.C. § 77(x) requires a finding of a willful violation
of 15 U.S.C. § 77q(a) to support the penalty of
incarceration, and he argues the court erred by sentencing
him without resolving the dispute over which mens
rea standard, reckless or willful, applied. Id.
at 27, 32. Defendant also contends the court erred in
accepting arguments from the government for application of
the willful mens rea standard, while disregarding
defendant's “statement of elocution (sic).”
Id. at 32. He also contends Mr. Wiseman “was
generally ineffective during the sentencing phase” for
the reasons cited in the § 2255 motion. Id. at
opposition to the motion, the government first contends that
defendant's sentence could have been properly based on
either reckless or knowing conduct and is therefore not
illegal. ECF No. 128 at 14. Second, the government contends
defendant pleaded guilty to conduct that “went well
beyond recklessness” and showed that he
“knowingly made misrepresentations of material fact to
investors to secure their funds.” Id. at 16.
Third, the government contends defendant was not misled about
whether the conduct he admitted could result in prison time.
Id. at 19. Fourth, the government contends it did
not engage in misconduct either in the preparation and
presentation of the plea agreement or at sentencing.
Id. at 20. Finally, the government contends
defendant received effective assistance from Mr. Wiseman and
that defendant has not shown he suffered any cognizable
prejudice as a result of Mr. Wiseman's performance.
Id. at 22-24.
Ineffective Assistance of Counsel
claims he received constitutionally ineffective assistance of
counsel from Mr. Wiseman “during the sentencing
phase” and that Mr. Locke “probably erred in not
requiring that the unsigned plea deal be remedied.” ECF
No. 115-1 at 34.
federal law on claims of attorney ineffectiveness is clear:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
“[T]he performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances.” Id. at 688.
[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments supported the
limitations on investigation. In other words, counsel has a
duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
Id. at 690-91. The court must presume that counsel
acted effectively and evaluate strategic decisions to
determine whether those decisions were “reasonable at
the time.” Harrington v. Richter, 562 U.S. 86,
107 (2011); see also Strickland, 466 U.S. at 689
(internal citation omitted) (“A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.'”). In Harrington, the Supreme
Court emphasized the deference Strickland requires,
noting that a court must presume that counsel acted
effectively and reiterating that “[t]he question is
whether an attorney's representation amounted to
incompetence under ‘prevailing professional norms,
' not whether it deviated from best practices or most
common custom.” Harrington, 562 U.S. at 105
(quoting Strickland, 466 U.S. at 690).
is defendant's burden to establish prejudice: “The
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466
U.S. at 694. “Failure to satisfy either prong of the
Strickland test obviates the need to consider the
other.” Rios v. Rocha, 299 F.3d 796, 805 (9th
Cir. 2002); see also Siripongs v. Calderon, 133 F.3d
732, 737 (9th Cir. 1998) (“[It] is unnecessary to
consider the prejudice prong of Strickland if the
petitioner cannot even establish incompetence under the first
gravamen of defendant's claim appears to arise from
contentions that, distilled to their essence, are as follows:
at the time he entered his guilty plea defendant believed he
was pleading guilty only to “reckless” misconduct
and, therefore, that he could not be sentenced to prison.
Although it is not entirely clear, it appears defendant's
claim is that Mr. Wiseman, his attorney at the time he
entered his plea, misled him about the content and
consequences of the plea agreement and pressured him into
pleading guilty, which defendant agreed to do because he
thought he would avoid a prison sentence.
claim is without merit. Defendant has presented no evidence
that Mr. Wiseman advised him that pleading guilty only to
“recklessness” would guarantee defendant would
avoid a prison sentence. While defendant signed the form
§ 2255 motion he filed with his motion under penalty of
perjury, see ECF No. 115-1 at 1, 12, he did not
similarly verify the attachment to that form, which he
denominated “Amended Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255.”
See ECF No. 115-1 at 13, 36. The attachment contains
all of the allegations that defendant relies on to support
his motion. Under appropriate circumstances, a verified
pleading “may be treated as an affidavit to the extent
that [it] is based on personal knowledge and sets forth facts
admissible in evidence and to which the affiant is competent
to testify.” Lew v. Kona Hospital, 754 F.2d
1420, 1423 (9th Cir. 1985) (citing Runnels v.
Rosendale, 499 F.2d 733, 734 n.1 (9th Cir. 1974)). Even
if the court were to construe the attachment as an affidavit,
the document contains nothing that qualifies as evidence that
counsel advised defendant he would not face a prison sentence
if he pleaded guilty. The only allegations concerning
counsel's advice about possible penalty are as follows:
The defendant had trouble pleading guilty. The court stated
that it noted hesitancy and asked the defendant to confer
with counsel outside of chambers. The defendant left and told
counsel he couldn't plead because he was innocent and the
factual allegations were inaccurate.
Defendant was then told by counsel that this plea was
the federal equivalent of “criminal negligence”
and that the recklessly concession materially justified a
minimal sentence. He reminded the defendant that the
factual basis should be viewed through the lens of
recklessly, and so Mr. Sarad returned to the courtroom and
made a ...