United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO VACATE
SENTENCE UNDER 28 U.S.C 2255 RE: DKT. NO. 68
ILLSTON UNITED STATES DISTRICT JUDGE
January 14, 2019, Ms. Brown filed a motion to vacate her
sentence pursuant to 28 U.S.C. 2255. Dkt. No. 68 (Motion to
Vacate). Having reviewed the papers, evidence, and arguments
submitted by the parties, the Court finds it appropriate to
decide the motion without an evidentiary hearing. The motion
1982, Ms. Brown was sentenced to 12 years in prison for armed
bank robbery. Dkt. No. 51 at 13 (Pre-Sentence Report). In 1988,
Ms. Brown was sentenced to 30 years in prison, again for
armed robbery, and paroled in October 2015. Id. at
30-31. Months later, in April 2016, Ms. Brown committed the
first of four additional bank robberies, culminating in her
apprehension in August 2016 when she was about to commit a
fifth armed robbery. Id. at 1.
2016 activities, the grand jury charged Ms. Brown with (1)
attempted bank robbery, (2) conspiracy to commit bank
robbery, (3) using, carrying, or possessing a firearm during
and in relation to a crime of violence in violation of 18
U.S.C. § 924(c), and (4) being a felon in possession of
a firearm. Dkt. No. 1. Ms. Brown faced a minimum sentence of
25 years on the § 924(c) charge alone. Dkt. No. 1; 18
U.S.C. § 924(c)(1)(C)(i).
2017, the government informed Ms. Brown's counsel, APD
Ellen Leonida, that they were investigating other robberies
potentially involving Ms. Brown and were unlikely to offer
less than the 25 year mandatory minimum. Dkt. No. 88-1 ¶
8 (Leonida Declaration). However, the government agreed not
to charge Ms. Brown with the robberies under investigation if
she accepted a plea agreement. Id. If charged, those
robberies would have incurred additional violations of 18
U.S.C. § 924(c), dramatically increasing Ms. Brown's
exposure. Id. Ms. Leonida met with Ms. Brown
multiple times and discussed the applicable sentencing
guidelines with her at length. Id. ¶ 9. After
continued negotiations with the government, Ms. Leonida
secured an offer to drop the § 924(c) charge and agree
to a sentencing range of 240 to 360 months. Id.
the plea agreement was obtained, but before Ms. Brown agreed
to it, Ms. Leonida met with Ms. Brown several times to review
the agreement. Id. ¶ 11. The agreed upon
240-360 month range was much higher than the 121-151 month
sentencing guidelines referred to in the plea agreement. But,
as Ms. Leonida explained to Ms. Brown, this was because the
government agreed to dismiss the count that carried a 25-year
mandatory consecutive minimum. Dkt. No. 88-1 ¶ 11. Ms.
Leonida further explained that if Ms. Brown rejected the plea
deal, and she was convicted of the § 924(c) charge, she
could ask for a variance from the guideline range, but could
not get a sentence below the 25-year mandatory minimum.
Id. During these meetings, Ms. Leonida walked Ms.
Brown through the sentencing guideline calculations in the
plea agreement as well as calculating sentencing guidelines
for hypothetical trial outcomes. Id.
September 1, 2017, Ms. Brown entered into the plea agreement
with the government. Dkt. No. 39. In the plea agreement, Ms.
Brown affirmed that she “had adequate time to discuss
this case, the evidence, and the Agreement with [her]
attorney and that [her] attorney provided [her] with all the
legal advice [she] requested, ” and that her
“decision to plead guilty is made voluntarily, and no
one coerced or threatened me to enter this Agreement.”
Dkt. No. 41 ¶¶ 19, 21. Pursuant to the plea
agreement, Ms. Brown waived her right to appeal any part of
her conviction, including under 28 U.S.C. § 2255.
Id. ¶ 5. Ms. Brown only reserved the right to a
direct appeal or collateral attack claiming ineffective
assistance of counsel. Dkt. No. 41 ¶ 4.
the September 1, 2017 plea hearing, Ms. Brown stated under
oath (1) that she was satisfied with her counsel's
representation of her; (2) that she entered into the
agreement voluntarily; (3) she understood that if the Court
accepted the plea agreement, Ms. Brown would give up her
right to appeal the conviction, from the judgement, from any
orders the Court may have made and from any aspect of the
sentence; and (4) she had discussed the contents of the plea
agreement with her lawyer and agreed with its contents. Dkt.
No. 88-2 at 4, 9-11 (Ex. A to Leonida Decl. - Transcript of
Plea Hearing). Further, when asked by the Court: “And
then because of the way this Plea Agreement is presented, as
long as I sentence you to a sentence somewhere between 240
months and 360 months, as long as it's in there, you
won't be able to change your mind about having pled
guilty; do you understand that?”, Ms. Brown replied,
under oath, “Yes.” Id. at 12.
January 19, 2018, this Court held a sentencing hearing and
sentenced Ms. Brown to 252 months in custody. Dkt. No. 58
(Minute Entry re Sentencing Hearing). On January 14, 2019,
Ms. Brown filed the instant motion. Dkt. No. 68. Ms. Leonida
declares that at no time during the January 19, 2018 hearing,
or subsequent thereto, did Ms. Brown request to appeal her
conviction. Dkt. No. 88-1, ¶ 13 (Leonida Decl.). Had Ms.
Brown communicated such a desire, Ms. Leonida believes she
would have notated the request in the file and sent a letter
to Ms. Brown stating the pitfalls of such a decision - namely
that Ms. Brown would breach her plea agreement, which the
government could then withdraw, exposing Ms. Brown to a much
longer sentence. Id. ¶ 18.
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released” who
wishes to collaterally attack her sentence must file a motion
to vacate, set aside or correct the sentence pursuant to 28
U.S.C. § 2255 in the court which imposed the sentence.
28 U.S.C. § 2255(a). Under 28 U.S.C. § 2255, the
federal sentencing court is authorized to grant relief if it
concludes “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.” See
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988).
prevail on her ineffective assistance of counsel claim, Ms.
Brown must establish two things. First, she must establish
that counsel's performance was deficient, i.e., that it
fell below an “objective standard of
reasonableness” under prevailing professional norms.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Second, she must establish that counsel's
deficient performance prejudiced her, i.e., that “there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. Id.
two-part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of
counsel.” Hill v. Lockhart, 474 U.S. 52, 58
(1985). “The longstanding test for determining the
validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the
alternative courses of action open to the
defendant.'” Id. at 56, citing North
Carolina v. Alford, 400 U.S. 25, 31, 91 (1970).
“Where, as here, a defendant is represented by counsel
during the plea process and enters his plea upon the advice
of counsel, the voluntariness of the plea depends on whether