United States District Court, N.D. California
ORDER TO SHOW CAUSE RE: DKT. NOS. 172, 174
JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE
On November 15, 2016, David Beckford (“Movant”)
entered a guilty plea to conspiracy to manufacture,
distribute and possess with intent to distribute controlled
substances, in violation of 21 U.S.C. section 846 (Count 1),
felon in possession of a firearm, in violation of 18 U.S.C.
section 922(g)(1) (Count 5), possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. section 924(c) (Count 6), sale of counterfeit drugs,
in violation of 21 U.S.C. section 331(i)(3) (Count
conspiracy to engage in international money laundering, in
violation of 18 U.S.C. section 1956(h) (Count 9), and
trafficking in a counterfeit drug, in violation of 18 U.S.C.
section 2320(a)(4) (Count 33). (Dkt. No. 112, Plea
Agreement.) As part of his Plea Agreement, Movant agreed
“not to file a collateral attack on his conviction or
sentence, including a petition under 28 U.S.C. § 2255 or
28 U.S.C. § 2241, except that I reserve my right to
claim my counsel was ineffective.” (Plea Agreement,
February 7, 2017, the Court imposed a total term of
imprisonment of 123 months, which consisted of a term of 60
months on Count 1, 63 months on Counts 5, 9, and 33, and 36
months on Count 8, all of which were to run concurrently. The
Court imposed a term of imprisonment of 60 months on Count 6,
to run consecutively to all other counts. (Dkt. No. 140,
acting pro se, now seeks relief under 28 U.S.C.
section 2255 and challenges his conviction and sentence.
(Dkt. No. 172.) The motion was docketed on February 9, 2018,
and it was postmarked February 6, 2018. Movant raises a
number of claims for relief, most of which are premised on
the premise that counsel was ineffective. Movant also argues
his sentence on Count 8 was illegal, because the maximum term
of imprisonment for a first time violation is one year.
A prisoner in custody 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
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.
22 U.S.C. § 2255.
hearing is required “whenever the record does not
affirmatively manifest the factual or legal invalidity of the
[movant's] claims.” Baumann v. United
States, 692 F.2d 565, 571 (9th Cir. 1982) (citation
omitted). “A hearing must be granted unless the
movant's allegations, when viewed against the record, do
not state a claim for relief or are so palpably incredible or
patently frivolous as to warrant summary dismissal.”
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984) (citations omitted).
Court finds Movant's claims for ineffective assistance,
when liberally construed, appear to be colorable and warrant
a response from the Government. The Court notes that, as part
of his Plea Agreement, Movant agreed that he "knowingly
sold, dispensed, or held for sale or dispensing a counterfeit
drug ... with the intent to defraud or mislead." (Plea
Agreement at 2:22-24.) 21 U.S.C. section 333 provides that
"[notwithstanding the provisions of paragraph (1) of
this section, " which sets forth a maximum term of
imprisonment of one year, "if any person commits such a
violation ... with the intent to defraud or mislead, such
person shall be imprisoned for not more than three years or
fined not more than $10, 000, or both." 21 U.S.C. §
333(a)(2). As one basis for relief, Movant asserts that he
would not have entered a guilty plea, but for counsel's
ineffectiveness. The Court also shall require the Government
to respond to this claim.
Clerk has served notice on the Government. (Dkt. No. 173.)
Accordingly, for the foregoing reasons and for good cause
Government shall file with the Court and serve on Movant,
within 30 days of the date of this order, an answer
conforming in all respects to Rule 5 of the Rules Governing
Section 2255 Proceedings, showing cause why the Court should
not "vacate, set aside or correct the sentence"
being served by Movant.
Movant wishes to respond to the answer, he shall do so by
filing a reply with the Court and serving it on the
Government within 30 days of his receipt of the answer.