Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Carolyn Ann Reed, 13 Defendant/Movant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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CR 03-421-PHX-SMM CV 06-2030-PHX-SMM (HCE) REPORT & RECOMMENDATION

Pending before the Court is Movant's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Doc. No. 578).1 In accordance with the Rules of Practice of the United States District Court for the District of Arizona, this matter was referred to the undersigned Magistrate Judge for a Report and Recommendation. For the following reasons, the Magistrate Judge recommends that the District Court deny the Motion. I. FACTUAL & PROCEDURAL BACKGROUND This action arises from the Government's April 29, 2003 indictment of Movant Carolyn Ann Reed2 and twelve other defendants regarding, inter alia, drug conspiracy

All docket numbers refer to the docket for CR 03-421-PHX-SMM. Ms. Reed is also known as Carolyn Harris and Carolyn Harris Reed.
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charges. (Response, Ex. A (docket entry no. 1)) (Doc. No. 592-2) One of the Co-Defendants, John Harris, is Movant's brother. (Motion, p.4) (Doc. No. 578) Another Co-Defendant, Sonya Brown, is John Harris' girlfriend. (Id.) On January 7, 2005, the day set for trial, Movant pled guilty to a lesser included offense in Count 1 of the second superseding indictment, i.e. Conspiracy To Possess With Intent To Distribute 500 grams or more of cocaine. (Doc. No. 592-3) In exchange for pleading guilty to Count 1 of the second superseding indictment, all other counts in the original indictment and first and second superseding indictments would be dismissed at sentencing. Additionally, the Government agreed not to file the allegation of prior drug convictions pursuant to 21 U.S.C. §851. Movant was then subject to a maximum $2,000,000 fine; five to forty years of incarceration; and a maximum five years of supervised release. Movant and the Government agreed that Movant would be sentenced to not less than but no more than 60 months of incarceration. On September 7, 2005, Movant was sentenced to 60 months of incarceration. (Response, Ex. F) (Doc. No. 592-7) On August 17, 2006, Movant filed the instant Motion asserting that her "guilty plea was not voluntary due to the totality of circumstances of interrelated coercive factors including ineffective assistance of counsel, hidden package nature of plea agreement and coercion placed on her by co-defendants." (Motion, p.12) (Doc. No. 578) II. DISCUSSION A. Waiver of Right to File 28 U.S.C. § 2255 Petition

The Government stresses that under the plea agreement, Movant waived her right to bring the instant challenge. As part of her plea agreement, Movant herein made the following waiver: ... b) Defendant hereby waives any right to raise on appeal or collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement. (Response, Ex. B, p.4) (Doc. No. 592-3)

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The Ninth Circuit applies "strict standards for waiver of constitutional rights...." United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume waiver from a silent record, and the Court must indulge every reasonable presumption against waiver of fundamental constitutional rights. United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004). Nonetheless, a waiver generally will be enforced if the agreement, by its terms, expressly waives the right and the waiver is knowingly and voluntarily made. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Vences, 169 F.3d 611 (9th Cir. 1999). Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A criminal defendant may waive the statutory right to bring a section 2255 action challenging the length of his sentence. Pruitt, 32 F.3d at 433. United States v. Abarca, 985 F.2d 1012 1014 (9th Cir. 1993). The only claims that cannot be waived are claims that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); Pruitt, 32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). At the change of plea proceeding, Movant was placed under oath. (Response, Ex. C, p.15)(Doc. No. 592-4) The Court determined Movant to be forty years of age, having graduated from high school and having attended two years at a community college. (Id. at -3Document 647 Filed 05/23/2008 Page 3 of 15

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pp. 15-16) Movant reads and understands English. (Id. at p. 16) Movant read and discussed the plea agreement with her attorney and others. (Id.) Movant understood there were no other agreements and all her questions were answered. (Id. at pp. 17-18) Additionally, the trial court specifically addressed Movant regarding her waiver to bring the instant challenge: ... THE COURT: THE DEFENDANT: ...you agree to waive your right to take a collateral attack in this matter...Do you understand that? Yes.

8 *** 9 THE COURT: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE DEFENDANT: Now, a writ of habeas corpus is some writ under the All Writ Acts, which...or habeas corpus seeks to get you either out of jail, stop the prosecution, or set aside your conviction. And, if you have any defenses that you have, you could­those would be precluded...Whatever it is...you're giving up those defenses and they would not be available to you on habeas corpus. Do you understand that? Yes.

(Response, Ex. C, pp.24-26) (Doc. No. 592-4) Despite this express waiver, Movant filed the instant petition pursuant to 28 U.S.C. § 2255 wherein she asserts that her plea was not voluntary and that ineffectiveness of counsel rendered the plea involuntary. The Court finds it appropriate to address these contentions. See Jeronimo, 398 F.3d at 1156 n.4 (a waiver may not "encompass a claim challenging the knowing and voluntary nature of [a] plea agreement....") B. Movant's Guilty Plea Was Voluntary And Not Coerced

Movant asserts that the plea agreement consisted of a "hidden package" deal in that her guilty plea would result in the extension of plea offers to her brother, John Harris, and his girlfriend, Sonya Brown. (Reply, p. 3) (Doc. No. 596) Movant claims that attorneys for other Co-Defendants pressured her into pleading guilty. There are no affidavits from those attorneys that supports this claim. Movant claims that her attorney, Ms. Spencer, pressured her into pleading guilty. Movant asserts that Ms. Spencer "has chosen to not respond or cooperate to [sic] telephone calls or letters from undersigned counsel." (Reply, p. 3) (Doc. -4Document 647 Filed 05/23/2008 Page 4 of 15

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No. 596) Thus, there is no affidavit from that attorney to support this claim. Moreover, as discussed below, the record before this Court belies this claim. Movant claims that others also pressured her into pleading guilty. The trial court took the necessary and proper precautions to ensure Movant's plea of guilty was voluntary and not coerced. Generally, a trial court has the duty to ascertain that a guilty plea is voluntary before accepting the plea. Boykin v. Alabama, 395 U.S. 238 (1969). In doing so, the court must ascertain whether the plea represented a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Hill v. Lockhart, 474 U.S. 52, 56 (1985); see also Brady v. United States, 397 U.S. 742, 749 (1970) (the voluntariness of a plea "can be determined only by considering all of the relevant circumstances surrounding it."); Jeronimo, 398 F.3d at 1157 n.5 (a plea colloquy that satisfies "Rule 11's requirements will lead to a plea being considered knowing and voluntary, unless some misrepresentation or gross mischaracterization by counsel has tainted the plea.") Additionally, in cases involving package deal plea agreements, which pose a higher risk of undue coercion because such agreements tie the fates of defendants together, the "`trial court should make a more careful examination of the voluntariness of a plea...'" United States v. Caro, 997 F.2d 657, 659 (9th Cir. 1993) (holding that "package deal plea agreements are not per se impermissible....") ((quoting United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984)). Movant contends that the trial court "did not adequately inquire into the nature of the package plea and the codefendants pressuring [her] to change [sic] plea to guilty." (Reply, p. 2) (Doc. No. 596) On January 7, 2005, the day Movant's case was set for trial, Movant's attorney, Ms. Spencer advised the trial court that Movant wanted to plead guilty. (Response, Ex. C, p. 3) (Doc. No. 592-4) Co-Defendant Sonya Brown's attorney and Co-Defendant John Harris' attorney both advised the court their clients wanted to plead guilty. (Id. at p.6) The record establishes that the trial court was well aware of the probable contingent result regarding the Co-Defendants if Movant pled guilty and the court so advised Movant: THE COURT: Now, Miss Harris Reed, I just want to give you some advice here, because I'm going to have­it's my understanding that you wish to now resolve -5Document 647 Filed 05/23/2008 Page 5 of 15

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your case with the Government, which would in all likelihood resolve the other two defendant's cases... (Id. at p.3) At that same time, the court also confirmed that the Co-Defendants were also ready to enter guilty pleas following Movant's plea: THE COURT: [to Movant]...We will come back at 10:15. We will take your plea. [to all] If the other defendants are ready to plead, we will go ahead with your plea immediately after hers. That's my understanding, is that correct? *** [to Co-Defendants' counsel]...because if your deal isn't set either, I'm not going to delay this jury trial. Because if...we start from ground 1 and start haggling over this thing,...we're going back to trial...

(Id. at p 6) After assurances that the Co-Defendants were ready to enter pleas, the Court allowed a recess prior to Movant's plea proceeding. (Id. at pp. 5-6, 8) Prior to the recess, the court stated that the Co-Defendants' plea proceedings would immediately follow Movant's. (Id.) Additionally, throughout Movant's change of plea proceeding the court carefully questioned Movant to establish that despite advice from others, Movant's guilty plea was entirely her own decision and voluntary: THE COURT: ...You've been getting lots of advice from lots of different people. You're related to some of the people here in the courtroom. We've been through a lot in this case with regard to representation issues, lawyer issues and everything. This is not an easy decision; I can see that on your face and I can understand it. But we are ready to proceed to trial, the jury is here, we're ready to impanel the jury and put them in place. I don't want you to plead guilty if its not your voluntary wish to do so. If you don't­if you can't say that and you're not happy with everything, then we're going to trial. *** So I want you to understand that. Because we are ready to go. We've delayed this trial two days to give­to rule on all legal motions, to give people extraordinary amounts of time to weigh their options. *** -6Document 647 Filed 05/23/2008 Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Id. at pp. 3-5) 16 THE DEFENDANT: THE COURT: THE DEFENDANT: (Id. at pp. 3-4) THE DEFENDANT: THE COURT:

And I know these are very tough decisions. *** And you understand my advice as to what will be the requirements of the plea. Do you understand that?... Yes. ...if you want to plead guilty, it must be yours and nothing that I have said or the attorneys have said or anything else except your attorney, who may be advising you, that this is what you personally want to do. Do you understand that? Yes. All right. Now, knowing that advice, do you still wish to...go ahead with the plea? Yes.

Despite the trial court's readiness to impanel a jury, the trial court recessed giving Movant additional time to consult with her attorney: THE COURT: All right. Then here's what we're going to do this morning. I will give you until 10:15 to talk to your lawyer. That's over a half an hour. Because I know you've talked about this since the beginning of this case with your lawyer. We will come back at 10:15. We will take your plea.

The trial court reconvened and was advised that Movant would be pleading guilty: 17 18 19 20 21 22 23 24 25 26 THE DEFENDANT: 27 (Id. at p.10) 28 -7Case 2:03-cr-00421-SMM Document 647 Filed 05/23/2008 Page 7 of 15

THE COURT: MS. SPENCER: (Id. at p. 8)

Are we going ahead or not? We are going ahead, Judge.

The trial court addressed Movant regarding advice she received from others: THE COURT: But Miss Harris Reed, I know this is a difficult decision. You've had lots of advice from many different people. But I want to assure you that many of the people who are giving you advice do not bear the responsibility and the consequences of your decision; this must be your decision alone. Do you understand that? Yes. Okay. Now, it's my understanding you wish to go ahead with the plea agreement that has been presented to me, is that correct? Yes.

THE DEFENDANT: THE COURT:

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Later, the trial court addressed Movant regarding her attorney's representation and the voluntariness of her plea: THE COURT: Okay. Now, we've been through this road before about representation by counsel. But through the course of the proceedings I made my rulings, but are you satisfied with her representation and guidance of you in this matter? Yes or no. I know you wanted some continuances and things, but I don't want you doing this if it's not what you want to do and you can't agree to it. But if not, I'm going to call the jury back up here. Yes. Okay. So you're satisfied. With her representations in this matter, even though you disagree with part of them, is that right? Yes.

THE DEFENDANT: THE COURT: THE DEFENDANT:

10 (Id. at p. 18) 11 After advising Movant of the rights she was giving up by pleading guilty, the trial 12 court asked Movant: 13 THE COURT: 14 THE DEFENDANT: 15 (Id. at p. 31) Thereafter, the trial court found that the plea of guilty "has been knowingly and 16 voluntarily made with an understanding of the consequences and, further, there's a factual 17 basis for the plea. " (Id. at p. 32) Furthermore: 18 19 20 21 22 23 24 25 26 27 28 THE DEFENDANT: (Id. at pp. 35) Movant contends that the court's question regarding whether "anyone forced you in any way to enter this plea of guilty" was insufficient to adduce voluntariness because "she does not assert physical force was used against her." (Motion, p.23) (Doc. No. 578) Movant's argument overlooks the fact that the inquiry did not specify or suggest that the question pertained solely to physical force. Instead, the question specifically addressed "force in any way..." by "anyone". (Response, Ex. C, p. 31) (Doc. No. 592-4) See United -8Case 2:03-cr-00421-SMM Document 647 Filed 05/23/2008 Page 8 of 15

Has anyone forced you in any way to enter this plea of guilty? No.

THE COURT:

...I understand the difficulty of the decision. But I've found that in the overall, it's a voluntary decision on your part, and you understand the consequences of that, is that correct? Yes.

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States v. Martinez-Molina, 64 F.3d 719, 733 (1st Cir. 1995) (affirming denial of motion to withdraw from package plea on grounds of coercion where, during plea colloquy, defendant "responded no" to the trial court's inquiry whether "anyone had forced him to plead guilty...")3 In sum, the trial court, counsel, and the parties were aware of, recognized, and acknowledged the contingent nature of Movant's plea as it related to the Co-Defendants. Moreover, after careful questioning by the trial court concerning her decision to enter the plea, Movant stated that the plea was knowing and voluntary. Movant's "statements made in open court during [the] plea hearing `carry a strong presumption of verity.'" MartinezMolina, 64 F.3d at 733(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also Blackledge, 431 U.S. at 74 ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."); United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991) ("We attach substantial weight to contemporaneous on-the-record statements in assessing the voluntariness of pleas."). Consequently, Movant's challenge on this issue is without merit. C. Movant's Attorney Was Not Ineffective

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a two-part test for evaluating ineffective assistance of counsel claims. To prevail on such a claim, the movant must show that: (1) counsel's representation fell below the range of Movant cites Martinez-Molina for the premise that the trial court should have specifically inquired whether certain defendants had been threatened or pressured by their co-defendants into accepting the plea. (Motion, pp. 21-22) (Doc. No. 578) A closer reading of Martniez-Molina reflects that the trial court had inquired only as to whether two of the defendants "had `entered into [the] plea agreement without compulsion or any threats or promises by the-from the U.S. Attorney or any of its agents.'" Martinez-Molina, 64 F.3d at 734. However, the Martinez-Molina court affirmed the district court's denial of a third defendant's motion to withdraw his plea on grounds of coercion because the trial court, like the trial court herein, had previously "specifically asked [the defendant] whether anyone had forced him to plead guilty, to which he responded no." Id. at 733. On the instant record, Movant's reliance on Martinez-Molina is misplaced. -9Document 647 Filed 05/23/2008 Page 9 of 15
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competence demanded of counsel in criminal cases; and (2) the movant suffered actual prejudice as a result of counsel's incompetence. See Strickland, 466 U.S. 668. The Strickland test also applies to a movant's challenge of her guilty plea based upon ineffective assistance of counsel. Washington, 422 F.3d at 872 (9th Cir. 2005) (citing Hill, 474 U.S. 52). In such a context, "the ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the [movant's] ability to enter an intelligent, knowing and voluntary plea of guilty." Lambert v. Blodgett, 393 F.3d 943, 980 (9th Cir. 2004); see also Jeronimo, 398 F.3d at 1156 (a defendant who pleads guilty on advice of counsel may attack the voluntary and intelligent character of the plea by showing that counsel acted incompetently by advising the defendant to accept the plea). To establish that counsel was ineffective during plea proceedings, the movant must show that: (1) counsel's representation fell below the range of competence demanded of counsel in criminal cases; and (2) but for counsel's advice, the movant wound not have pleaded guilty. Hill, 474 U.S. at 58-59 see also Lambert, 393 F.3d at 980; Washington, 422 F.3d at 873 (same). To establish deficient performance, Movant must show that counsel made errors so serious "that counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-688. The relevant inquiry is not what defense counsel could have done, but rather whether the decisions made by defense counsel were reasonable. Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) ("in plea situations...the question [is] not whether counsel's advice [was] right or wrong, but...whether that advice was within the range of competence demanded of attorneys in criminal cases.") In considering this factor, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. The Ninth Circuit "h[as] explained that `[r]eview of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation.'" Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (quoting Hensley v. Crist, 67 F.3d 181, 184 (9th Cir. 1995)). "The reasonableness of counsel's - 10 Document 647 Filed 05/23/2008 Page 10 of 15

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performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Additionally, "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." Strickland, 466 U.S. at 689. In the context of a guilty plea, "'[i]n order to satisfy the 'prejudice' requirement, the [movant] must show that there is a reasonable probability that, but for counsel's errors, [s]he would not have pled guilty and would have insisted on going to trial.'" Lambert, 393 F.3d at 980 (quoting Hill, 474 U.S. at 59). See also Washington, 422 F.3d at 873 (same). Because failure to make the required showing of either deficient performance or prejudice defeats the claim, the court need not address both factors where one is lacking. Strickland, 466 U.S. at 697-700. Movant points to no evidence demonstrating that her agreement to enter the plea was not voluntary, knowing or intelligent. See Washington, 422 F.3d at 873 (denial of habeas relief on ineffective assistance of counsel claim where plea colloquy revealed that state court "meticulously explained the rights that [petitioner] was agreeing to waive...and that [petitioner] understood the nature of the waiver.") The transcript of the colloquy

demonstrates that the trial court explained the rights that Movant was agreeing to waive, including her right to a jury trial, and that Movant understood the nature of the waiver. Nor has Movant demonstrated that but for her attorney's alleged lack of preparation, she would not have pled guilty.4 Movant's case came on for trial on January 7, 2005. She

Movant's claims of defense counsel's incompetence include disagreements between counsel and Movant concerning discovery and alleged discrepancies in police reports; that counsel had not reviewed all the affidavits concerning a wire tap; that counsel had not listened to tapes of all calls; that counsel failed to interview witnesses; that counsel waited until less than one month before trial to request information from Movant; and that counsel did not file pretrial motions. The record reflects that counsel's representation was not as devoid of action as Movant suggests. The record reflects that counsel had determined that - 11 Document 647 Filed 05/23/2008 Page 11 of 15

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was repeatedly reminded by the trial court that if she could not plead guilty voluntarily, the trial court was ready to proceed with a trial and impanel a jury to hear her case.5 It is

there was no legal basis to challenge the wire taps­nor does Movant suggest herein that such a basis existed; counsel knew that most of the tapes of phone calls did not relate to Movant; counsel was cognizant of the proximity of trial and stated that they still had time, albeit not unlimited time, to gather additional information; counsel had made some strategical decisions regarding fingerprint evidence; and counsel spoke candidly with Movant regarding various sentencing permutations if Movant were convicted on some but not all counts and comparison of same under the plea agreement, Movant's chances at trial (i.e. the strengths and weaknesses of Movant's case), and that counsel was unable able to predict the jury's determination. (Reply, Ex. 19) (Doc. No. 596) At sentencing, the trial court pointed out that some evidence which Movant felt was exculpatory "[w]hen combined with other evidence...were incriminatory...That would be for a jury to decide." (Response, Ex. F, p.57) (Doc. No. 592-7) (See also Response, Ex. F, pp. 52-53(some of the statements that Movant claimed were exculpatory "could be capable of two different meanings...and...could have supported a conviction by proof beyond a reasonable doubt if the government's [sic] presented their case, as well as there's a chance that they could have acquitted.") The court's comments support the reasonableness of Ms. Spencer's advice to Movant that going to trial would be "a crap shoot,...a roll of the dice...I will do the best I can with what I have." (Reply, Ex.19, pp. 34-35) (Doc. No. 596) Aside from the conclusory allegation that her attorney should have done certain things within a certain time frame but did not, Movant herein has failed to demonstrate how her attorney's performance or advice fell below the reasonable level of professional competence required by Strickland and/or that Movant was prejudiced by same. See Ortiz, 149 F.3d at 933 (rejecting ineffective assistance of counsel claim where petitioner failed "to indicate how he was prejudiced by counsel's failure" to conduct cross-examination on a specific issue); United States v. Berry, 814 F.2d 1406 (9th Cir. 1987) (defendant was not denied ineffective assistance of counsel for failure to call outof-state witnesses absent indication of what witnesses would have testified to or how their testimony would have changed outcome of proceeding); Cranford v. Sumner, 672 F.Supp. 453, 457 (D.Nev. 1987) ("Aside from the bald allegation that his attorney should have raised this claim but did not, the petitioner has failed to demonstrate how his attorney's performance fell below the reasonable level of professional competence required by Strickland .")
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THE COURT:

Okay. Now please be seated, everyone. We have currently in the courtroom­and the courtroom is open­but present in front of the bar we have Mr. Duax, Detective Denney, Miss Spencer, and her client, Miss. Harris Reed. The jury has been selected. The only thing we need to do is proceed with the impanelment of the jury to begin this trial. I was informed some time ago that there was a resolution. I've given everyone time to accommodate that resolution. And if - 12 Document 647 Filed 05/23/2008 Page 12 of 15

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unknown what would have transpired during the course of a trial that would support a claim of ill preparedness falling "below the range of competence demanded of attorneys in criminal cases." Washington, 422 F.3d at 873. What is known is that if Movant had been convicted at trial, she would have faced anywhere from twenty years to as much as life in prison. Movant's attorney advised Movant to enter a plea agreement wherein Movant would serve sixty months. Movant's attorney met her duty by conveying to Movant the information Movant was entitled to have, i.e. the plea offer. Compare Turner, 281 F.3d at 880-881 (petitioner's counsel was not ineffective given that counsel, among other things, conveyed the plea offer to defendant) with Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003) (claim of ineffective assistance of counsel may lie where counsel failed to accurately convey terms of a plea offer); United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994) (counsel's failure to communicate plea offer to defendant satisfied the first part of the Strickland test). The record establishes that Movant exercised her option to accept the plea agreement and enter a guilty plea. The result obtained by Movant's defense counsel was considerably more favorable than what Movant would have faced had she gone to trial and been convicted. Movant also argues that Ms. Spencer was ineffective for failing to move to withdraw the plea. Ms. Spencer declined to file such motion because she felt it was not in Movant's best interest and because there was no legal basis for withdrawal. (Response, Ex. D) (Doc. No. 592-5) At some point prior to sentencing, the trial court appointed Movant different defense counsel, Mr. Richard L. Juarez. (Response, p. 16) (Doc. No. 592) The Government persuasively points out that Mr. Juarez ­ who reviewed evidence and discussed the case with Movant including "the prospects of filing a motion to withdraw from the plea" (Response,

we--if the plea is going to fall apart we're going to trial, I'm bringing the jury back, we're going to put them there, and we're going to start this trial with opening statements. All the exhibits are sitting up here. We expect to be in this trial somewhere between eight and ten weeks. (Response, Ex. C, pp. 10-11) (Doc. No. 592-4) - 13 Document 647 Filed 05/23/2008 Page 13 of 15

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Ex. F, p. 52) (Doc. No. 592-5)­ also declined to a file motion to withdraw from the plea. (Response, p. 16) (Doc. No. 592) Thus, Mr. Juarez's "ultimate opinion was the same as Ms. Spencer's opinion not to withdraw from the plea." (Id.) Movant has not shown that Ms. Spencer's refusal to file a motion to withdraw from the plea fell below the range of competence demanded of counsel in criminal cases and was prejudicial. Movant also relies on United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) for the premise that the court should have appointed counsel to represent Movant prior to trial when addressing Movant's complaints about Ms. Spencer. Movant's reliance on Del Muro is misplaced given that Del Muro addresses whether new counsel should be appointed on a Rule 33 motion requesting a new trial on grounds which would require defense counsel "to prove his own ineffectiveness..." Del Muro, 87 F.3d at 1080. The instant matter does not involve a motion for a new trial. Moreover, when Movant's case was ripe for a motion to withdraw from the plea, Movant did have new counsel, Mr. Juarez. Mr. Juarez discussed with Movant the "the prospects of filing a motion to withdraw from the plea." (Response, Ex. F, p. 52) (Doc. No. 592-5) No such motion was filed. Movant's challenge based on Del Muro is meritless. III. CONCLUSION Movant's plea of guilty was entered knowingly and voluntarily as established by the trial court's careful questioning during the change of plea proceeding, in compliance with Rule 11 of the Federal Rules of Criminal Procedure. Moreover, Movant has failed to establish that she was deprived of effective assistance of counsel. Movant's waiver of the right to file a petition pursuant to 28 U.S.C. § 2255 is valid. Movant, therefore, waived her right to file the instant petition and this matter should be dismissed. IV. RECOMMENDATION For the foregoing reasons, the Magistrate Judge recommends that the District Court: (1) deny Movant's Motion to Vacate, Set Aside, or Correct Sentence (Doc. No. 578) filed in CR 03-421-PHX-SMM; and (2) dismiss cause number CV 06-2030-PHX-SMM. - 14 Document 647 Filed 05/23/2008 Page 14 of 15

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Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within ten days after being served with a copy thereof. Fed.R.Civ.P. 72(b). If objections are filed, the parties should use the following case number: CR 03-421-PHX-SMM and CV 06-2030-PHX-SMM. If objections are not timely filed, then the parties' right to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003). DATED this 23rd day of May, 2008.

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