United States District Court, E.D. California
April 2017, after she pled guilty to conspiring to defraud
the government and conspiring to file false claims against
the government, the court sentenced Teresa Marty to 120
months in prison. She now seeks to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. Mot., ECF
No. 216. The government opposes, arguing Marty waived her
right to bring this challenge and that the challenge
nonetheless lacks merit. Opp'n, ECF No. 222. Marty filed
a reply. ECF No. 225. As explained below, the court DENIES
August 31, 2016, Marty pled guilty subject to a written plea
agreement. See Fed. R. Crim. P. 11; see
also Plea H'rg Mins, ECF No. 139. She faced
fifty-three counts in all, but pled guilty to only two
counts: Conspiring to defraud the government (Count 1) and
conspiring to file false claims against the government (Count
46) in violation of 18 U.S.C. §§ 286 and 371,
respectively. See Plea Agmt., ECF No. 141, §
II.A; see also Second Superseding Indictment, ECF
No. 97. In exchange for Marty's guilty plea and waiving
her rights to appeal or collaterally attack her conviction or
sentence, the government agreed to dismiss the remaining
fifty-one counts. See Plea Agmt §§ III.A,
VII.B. At Marty's plea hearing, and before accepting
Marty's guilty plea, the court engaged Marty in a
detailed colloquy to ensure she understood the terms of her
agreement, including that she was waiving her right to bring
a collateral attack. Tr., ECF No. 219, at 3-4, 7-8, 23. After
this colloquy, the court accepted Marty's plea.
Id. at 23. On April 26, 2017, the court sentenced
Marty to 120 months custody on Count 1 and 60 months custody
on Count 46, to be served concurrently for a total term of
120 months. Sentencing Mins., ECF No. 198; J. &
Comm't, ECF No. 201.
December 7, 2017, Marty filed this § 2255 motion,
collaterally attacking her guilty plea and her sentence. She
argues she was denied the opportunity to present favorable
evidence. Pet. at 6-10 (arguing she was “unable to
present testimony” about four types of evidence,
including (1) calls she made to an IRS Hotline; (2) tax
refunds her clients received; (3) frivolous IRS filing
notices based on her co-defendant's tax return; and (4)
the use of a collection agency and maritime lien). She also
argues that because she suffered from chronic depression,
anxiety and fear that diminished her mental capacity and
interfered with her memory, she could not properly
communicate with her attorney, Michael Hansen, and her
attorney did not ask her for particular information that she
now is able to identify. Id. at 11-12.
explained below, Marty waived the right to bring this motion
based on an inadequate opportunity to present evidence. To
the extent Marty argues her inability to communicate with Mr.
Hansen, including his not asking certain questions of her,
amounts to ineffective assistance of counsel, she has not met
the stringent burden to bring such a claim.
plea agreement included an express waiver of her “right
to appeal [her] guilty plea, conviction and the sentence
imposed in this case.” Plea Agmt. § VII.B. Such an
agreement, if entered freely and voluntarily, is enforceable
against all non-waivable rights. United States v.
Abarca, 985 F.2d 1012, 1013-14 (9th Cir. 1993).
the record shows Marty freely and voluntarily waived her
right to collaterally attack her guilty plea, conviction or
sentence. The court engaged Marty in an extensive colloquy at
the plea hearing to verify that Marty was acting freely,
competently, and voluntarily. See generally Tr.
Marty was present with counsel throughout the hearing.
Id. at 2. The court began by telling Marty,
“If at any point you don't understand a question or
for any reason whatsoever you wish to take a break to . . .
consult with Mr. Hansen, really, for any reason whatsoever,
please let me know, because it's essential that you
understand everything that is happening here today.”
Id. at 3. The court confirmed with Marty that she
had reviewed and fully understood her written plea agreement.
Id. at 4. After the prosecutor summarized the plea
agreement for the record, the court verified with Marty that
this “was in fact the agreement Marty reached with the
government.” Id. at 11. Marty's
signature on the plea agreement is consistent with her
representation she understood and voluntarily agreed to its
terms. See Plea Agmt § IX.B.
satisfying itself that Marty was pleading guilty of her own
volition and free of any external pressures, id.,
the court explained in plain words that Marty also was giving
up her right to collaterally attack her plea, conviction and
sentence. Id. at 17 (“you are giving up rights
you typically would have to file a motion following
sentencing whereby you could seek to vacate the conviction or
sentence or reduce the sentence.”). When the court
again stated, “you are saying you are giving up that
right. Do you understand that?” Marty replied,
“Yes.” Id. The court then explained
Marty's right to present her own testimony and evidence
at a jury trial and explained Marty was giving up that right
too, along with all of her rights attendant a jury trial.
Id. at 18-19. Marty affirmed she understood and
affirmed that she wanted to give up those rights.
Id. at 19. Finally, after the entire colloquy, the
court noted, “Having had this exchange with Ms. Marty,
listened careful[ly] to her answers, observed her demeanor
throughout, giving her a chance to consider what she is
doing, I do find, first and for most [sic], that she is fully
competent and capable of entering an informed plea . . .
[and] that her plea is knowing and voluntarily.”
Id. at 23.
has cited no part of the record that shows she waived her
right to collaterally attack her guilty plea or sentence,
either involuntarily or incompetently or both. At no point
did she signal in any way that she wished to provide the
court with more information. To the contrary, the record
shows Marty repeatedly and unequivocally affirmed her
understanding and willingness to enter the agreement and
plead guilty. See Id. at 11, 17-19. And as detailed
below, nothing in the record suggests Marty's stress,
anxiety or depression was so crippling that it affected the
voluntariness of her plea. See Tr. at 8
(court noting it would pay close attention to ensure Marty
was tracking the court's questions before accepting
Marty's plea). To the contrary, when Marty mentioned her
stress and associated medications the court immediately asked
if anything about her condition or medication might affect
her ability to properly follow the hearing: Marty responded
“No. No.” and assured the court should would
“speak up” if she felt unable to follow anything
that was happening. Id. at 5-6, 8. Thereafter, Marty
never “spoke up” or showed any sign that she
might be struggling with comprehending the proceeding. The
court therefore concludes that she freely, voluntarily and
competently waived her right to collaterally attack her
conviction or sentence. Accordingly, to the extent her §
2255 motion is based on a lack of opportunity to present
evidence, it is DENIED. See Pet. 6-10 (first four
Ineffective Assistance of Counsel
also argues that because she suffered from chronic
depression, anxiety and fear, she could not properly
communicate with her attorney. Pet. at 11-12. In her reply,
Marty explains this “was not intended to be considered
a ground for filing the Form 2255 motion but was merely me
addressing the court with information regarding what life has
been like.” Reply at 3. In an abundance of caution, the
court nonetheless construes Marty's argument as a
potential ineffective assistance of counsel claim, which is a
non-waivable claim and therefore falls outside the scope of
Marty's waiver analyzed above. See United States v.
Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (“We
doubt that a plea agreement could waive a claim of
ineffective assistance of counsel based on counsel's
erroneously unprofessional inducement of the defendant to
plead guilty or accept a particular plea bargain.”);
United States v. Abarca, 985 F.2d 1012, 1014 (9th
Cir. 1993) (leaving open possibility of bringing ineffective
assistance of counsel claim even where plea deal waived
§ 2255 rights).
successfully set aside or vacate a conviction or sentence
based on ineffective assistance of counsel, Marty must
satisfy the stringent, two-pronged Strickland test
by showing (1) objectively unreasonable performance by
counsel and (2) resulting prejudice. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); see also
Padilla v. Kentucky, 559 U.S. 356, 357 (2010) (applying
Strickland to § 2255 claims based on plea
deal). Strickland's first prong asks whether
counsel's representation “fell below an objective
standard of reasonableness, ” which is assessed using
“prevailing norms of practice.” Padilla,
559 U.S. at 366 (quoting Strickland, 466 U.S. at
688). Strickland's second prong requires proof
by “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 669; see also United
States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir.
2015). The court may analyze these prongs in any order.
Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002)
(citing Strick ...