United States District Court, D. Alaska
ORDER RE MOTION TO VACATE UNDER 28 U.S.C. §
2255
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 72 is Defendant Andrea Vickers's
Motion to Vacate Under 28 U.S.C. § 2255. The Government
opposed the motion at Docket 77. An evidentiary hearing on
the motion was held on October 3 and October 4, 2017. Five
witnesses testified: Mr. Vickers's former attorney,
Ronald A. Offret; Andrea Vickers; Deputy U.S. Marshal
Rochelle Liedike; case agent Sarah Lynn Foreman; and Darko
Gospavic from AT&T.
BACKGROUND
On
January 23, 2014, the Government filed an Indictment in this
case, charging Mr. Vickers with Escape.[1] On February 20,
2014, the Government filed a First Superseding Indictment
that added the additional charge of Carjacking.[2] Due to a conflict
that had arisen with his first lawyer, CJA counsel Ronald
Offret was appointed to represent Mr. Vickers at that
time.[3]
On
March 17, 2014, the parties filed a plea agreement. The
proposed change of plea hearing was held on March 27, 2014,
at which time Mr. Vickers pleaded guilty to Counts 1 and 2 of
the Indictment.[4] In the plea agreement and while under oath
at the change of plea hearing, Mr. Vickers admitted to all
relevant conduct as outlined in the plea agreement and waived
all rights to appeal and all rights to collaterally attack
his conviction and sentence except on grounds alleging
“ineffective assistance of counsel - based on
information not now known to the defendant, and which, in the
exercise of reasonable diligence, could not be known to the
defendant at the time the Court imposes sentence” and a
challenge to the voluntariness of the plea.[5]
The
factual basis for the carjacking charge to which Mr. Vickers
admitted in the plea agreement and while under oath on the
record at the change of plea hearing provides as follows:
On January 10, 2014, the defendant confronted the victim, CM,
at her residence in Anchorage. He forced the victim and her
10-month-old child to get into her vehicle, a 2008 Hyundai
Sonata, which was manufactured outside of Alaska and
therefore was transported, shipped, and received, in
interstate and foreign commerce.
The defendant used force, violence, and intimidation to force
the victim from the driver's seat of her car and into the
passenger seat. He then got into the driver's seat and
took control of the vehicle. He also hit her in the face.
Over a period of several hours, the defendant drove the
victim and her child around in Anchorage, threatening to take
her to “the Valley” and kill and burn her. The
defendant also threatened to throw the infant out the window
of the vehicle.
In the early morning hours of January 11, 2014, the victim
asked for permission to drop off the baby at a friend's
home. The defendant agreed, but threatened to kill her if she
tried anything “shady.” The victim left her child
with a friend, explained that the defendant had kidnapped
her, and asked the friend to call the police with a
description of the car.
Shortly thereafter, Anchorage police located the vehicle and
attempted to stop it. The defendant attempted to elude the
police, recklessly endangering other people during flight as
he sped away. The defendant collided with another vehicle
while fleeing, causing injury to the victim as well as the
passengers of the other vehicle he struck. The victim
sustained injuries that resulted in an obvious disfigurement
that is likely to be permanent when the right side of her
face was badly cut by broken window glass in the collision.
The defendant fled on foot, and was apprehended by the
police. After his arrest, he repeatedly contacted the victim.
Based on the evidence of these contacts, on February 24,
2014, United States Magistrate Judge John D. Roberts ordered
the defendant to have no contact with the victim. Upon return
to the jail after the hearing, the defendant immediately
began attempting to contact the victim by
telephone.[6]
On June
13, 2014, this Court sentenced Mr. Vickers to a term of
imprisonment of 48 months on Count 1 and 180 months
consecutive on Count 2.[7]
On
January 14, 2015, Mr. Vickers filed the instant motion
seeking to vacate the carjacking sentence pursuant to 28
U.S.C. § 2255. He was self-represented at that time. The
motion asserted four grounds for relief: First, Mr. Vickers
maintained that his first appointed lawyer withdrew due to a
conflict of interest, and then the Superseding Indictment
adding Count 2 was filed before a plea agreement was
finalized. Mr. Vickers asserted, “I had requested
evidence be obtained by my appointed counsel and it was not
obtained in a timely manner which caused evidence to be
destroyed that showed my innocence.”[8] Ground two
alleged a Brady violation. Mr. Vickers asserted that
cell phone data from the victim's phone that would have
shown his innocence was withheld from him. Ground three
alleged prosecutorial misconduct. Specifically, Mr. Vickers
asserted that the Government recorded attorney-client
telephone calls and improperly relied on them. Ground four
alleged a violation of due process based on an assertion that
the Assistant U.S. Attorney knowingly presented perjured
testimony to the grand jury. Briefing on the motion was
completed in early 2015. CJA counsel was appointed to
represent Mr. Vickers in September 2015.[9] After several
continuances, the evidentiary hearing was held in October
2017. Mr. Vickers's asserted grounds for relief were
refined by the evidence presented at the hearing and are
discussed below.[10] After the hearing, the parties filed
supplemental briefing on whether the failure to request a
grand jury transcript and/or file a motion to dismiss the
indictment may constitute ineffective assistance of
counsel.[11]
LEGAL
STANDARD
In
order to succeed on an ineffective assistance of counsel
claim, Mr. Vickers must satisfy the two-pronged test set
forth in Strickland v. Washington, which requires
him to show both deficient performance and
prejudice.[12] Deficient performance requires a showing
that trial counsel's representation “fell below an
objective standard of reasonableness” as measured by
prevailing professional norms.[13] There is a “strong
presumption that counsel's conduct falls within the wide
range of professional assistance.”[14] To establish
prejudice, a petitioner must show a reasonable probability
that “but for counsel's unprofessional errors, the
result of the proceeding would have been
different.”[15] Failure to meet either prong is fatal to
a petitioner's claim.[16]
Mr.
Vickers carries the burden of proving he is entitled to have
his conviction vacated.[17] Thus, he must prove by a
preponderance of the evidence that he is entitled to relief
due to either the involuntariness of his plea or the
ineffectiveness of his counsel.
DISCUSSION
1.
Ineffective Assistance of Counsel Issues
Although
several different points were raised on the effectiveness of
trial counsel during the course of this multiyear motion
practice, the Court will focus on the arguments presented by
Mr. Vickers in his counsel's closing argument and written
submission after the close of the evidentiary hearing, as
that is where the various theories advanced by Mr. Vickers
coalesced based on the evidence that was presented.
The
Court first makes the following preliminary findings: The
victim of the carjacking, CM, did not testify at the
evidentiary hearing; her only sworn statement in the record
is her testimony before the grand jury. Based on all the
evidence that was presented at the hearing, and particularly
both Mr. Vickers's and CM's statements on the
recorded jail calls, the Court finds that Mr. Vickers did not
establish by a preponderance of the evidence that CM lied to
the grand jury with respect to those facts directly relevant
to the elements of the carjacking. In addition, the Court
finds that Mr. Vickers did not establish by a preponderance
of the evidence that CM lied to the grand jury when she
testified that Mr. Vickers had a handgun with him at the time
of the carjacking. The Court finds, based on the recorded
calls, that Mr. Vickers repeatedly stressed to CM that if she
continued to assert that a gun was present, he would be
facing a life sentence. But he told her that if she disavowed
the gun, then his sentence would be far shorter. Based on the
entirety of the evidence, including Mr. Vickers's
extensive criminal history as detailed in the Presentence
Report, the Court finds it more likely than not that Mr.
Vickers used a gun during the carjacking, but successfully
persuaded CM to recant that critical fact.
a.
The Grand Jury Transcript
Mr.
Vickers asserts that his trial counsel's representation
of him was inadequate because he did not file a motion
seeking to obtain a transcript of CM's testimony before
the grand jury. Trial counsel Ronald Offret testified at the
evidentiary hearing that he was unaware that he could even
seek to obtain the transcript. Thus, Mr. Vickers correctly
maintains that the decision not to seek the transcript was
not a strategic decision by trial counsel.
Federal
Rule of Criminal Procedure 6(e)(3)(E)(ii) authorizes a court
to disclose a grand jury transcript “at the request of
a defendant who shows that a ground may exist to dismiss the
indictment because of a matter that occurred before the grand
jury.” The standard for obtaining a grand jury
transcript in federal court is a high bar. “This
indispensable secrecy of grand jury proceedings must not be
broken except where there is a compelling
necessity.”[18] One recognized purpose of grand jury
secrecy is to impede the tampering of witnesses by targets of
the investigation.[19] The evidence in this case, as
demonstrated in the extensive recorded jail calls and the
order to show cause proceedings in 2014, demonstrated
extensive efforts at witness tampering undertaken by Mr.
Vickers. In dozens, if not hundreds, of phone calls in early
2014, Mr. Vickers repeatedly pressured the victim CM to
recant or revise her statements about the carjacking.
The
Court will not determine whether Mr. Offret's failure to
seek the grand jury transcript was deficient, because Mr.
Vickers has not demonstrated that he was prejudiced by that
failure. To establish prejudice, a petitioner must show a
reasonable probability that “but for counsel's
unprofessional errors, the result of the proceeding would
have been different.”[20] Mr. Vickers has not shown that
if Mr. Offret had filed a motion seeking a transcript of the
grand jury, there is any possibility, and certainly not any
reasonable probability, that the Court would have granted
such a motion. To the contrary, given the repeated contacts
that Mr. Vickers initiated to CM in violation of court orders
in the months shortly after CM testified to the grand jury in
which he urged her to change her statements, and given that
there is no sworn statement by CM in this record in which she
recants her testimony, it is simply not plausible that this
Court would have granted a motion to release a copy of the
grand jury transcript to Mr. Vickers.
At
most, if such a motion had been filed, the Court may have
reviewed the transcript in camera to determine if
its production to Defendant was warranted. Having now
reviewed that transcript, the Court finds that had such an
in camera review been done at some point prior to
sentencing, the production of the transcript to the defense
would not have been ordered unless CM had testified at trial.
The primary focus of the alleged perjurious statements by CM
relate to an issue peripheral to the carjacking incident-the
extent to which CM was aware of Mr. Vickers's criminal
history. There was also evidence presented that Mr. Vickers
disputed CM's grand jury testimony that he had a gun
present at the carjacking, and indeed the factual basis in
the plea agreement does not reference a firearm. CM told the
grand jury that Mr. Vickers did have a gun, and described it
in some detail to the grand jury. But as Mr. Vickers's
counsel acknowledged at the evidentiary hearing, the record
does not contain any sworn testimony of CM that Mr. Vickers
did not have a gun during the carjacking.[21] As discussed
above, the Court finds it more likely than not that Mr.
Vickers was in fact armed during the carjacking. But in any
event, the presence of a gun was not included in the factual
basis of the plea agreement. Based on the foregoing, Mr.
Vickers has not demonstrated that he was prejudiced by his
trial counsel's failure to request the grand jury
testimony because such a request would have been futile.
b.
Motion to Dismiss Indictment
Mr.
Vickers next argues that his trial counsel was ineffective
for failing to file a motion seeking dismissal of the
indictment. As discussed above, the Court has found that Mr.
Vickers was not prejudiced by his attorney's failure to
obtain the grand jury transcript; therefore, this claim
necessarily fails as well. Moreover, the Ninth Circuit
cautions that a constitutional error justifying dismissal of
an indictment only occurs when either “the structural
protections of the grand jury have been so compromised as to
render the proceedings fundamentally unfair” or when
the “defendant can show a history of prosecutorial
misconduct that is so systematic and pervasive that it
affects the fundamental fairness of the proceeding or if the
independence of the grand jury is substantially
infringed.”[22]
Mr.
Vickers has not made the requisite showing. Even assuming
that CM's statements about her knowledge of Mr.
Vickers's criminal background and the presence of a gun
to the grand jury were not accurate, her overall testimony to
the grand jury was fully consistent with the elements of a
carjacking offense.[23] In short, Mr. Vickers has not proven
that the structural protections of the grand jury process
were fundamentally unfair. Nor does the record in this case
contain any evidence of an intentional systematic and
pervasive pattern of prosecutorial misconduct in connection
with the grand jury or otherwise.
c.
Failure to get surveillance videos
Mr.
Vickers next argues that his trial counsel were ineffective
because both his first and second trial counsel failed to
immediately get relevant surveillance videos from the Alaska
Club or from two gas stations. At the evidentiary hearing
last fall, Mr. Vickers testified that footage of video
surveillance from those locations would have contradicted
CM's testimony.
Mr.
Vickers testified that video surveillance footage from a
Chevron station on the night of the carjacking would have
shown that “at the time that she said that I had a gun
to her head that we were actually at the Chevron station
getting gas, and that she went inside and paid for the gas
and then came back outside and pumped the gas and drove
off.”[24] The Court observes that CM's
10-month old child was in the car at the time.[25] The Court
finds Mr. Vickers's testimony on this topic was not
credible, and he presented no other corroborating evidence to
support his conclusory assertions regarding a Chevron
station.[26] For example, he never explained what
Chevron station he was referring to, at what time the
gasoline was purchased, and why this is never mentioned on
the recorded jail calls with CM until April 2014. There is
also no evidence in the record of Mr. Vickers's first
lawyer's investigative efforts on this issue. Mr. Offret
did not come into the case until over five weeks after the
carjacking, and no evidence was presented as to when the
unspecified Chevron station's video footage from January
10 or 11, 2014 would have been overwritten or whether there
even was video footage ever made on that day by that station.
Mr.
Vickers also testified that video surveillance of an
unspecified Holiday gas station would have established that
earlier in the day of the carjacking, he had run out of gas
and he had gone to a Holiday gas station and obtained the red
gas can to put the gas in, and that was the gas can that was
found in the car after the carjacking.[27] Mr. Vickers
also testified that Mr. Offret told him that he had spoken
with the manager at the Holiday, who told Mr. Offret that
they still had the video surveillance and would put it in the
safe for him.[28] The Court found Mr. Vickers's
testimony about a trip to an unspecified Holiday station at
an unspecified time to be not credible. No other evidence was
presented to support his assertion that he went to an
unspecified Holiday station and obtained a red gas can
earlier in the day of the carjacking. And as with the Chevron
station, there is no evidence in the record from Mr.
Vickers's first lawyer as to the investigation he did, if
any, on this issue. Nor was any evidence presented about when
the Holiday station's video footage would have been
overwritten. The Court also notes that Deputy Marshal Liedike
testified that there was fuel in the red gas can after the
crash at the end of the carjacking, which is inconsistent
with Mr. Vickers's testimony that he had obtained the
fuel to put in the gas tank.[29] In sum, Mr. Vickers did not
establish that Mr. Offret's investigative efforts with
respect to the gas stations were in any respect ineffective.
As to
the Alaska Club, the evidence in the record was that the data
in the system was overwritten after 30 days or when there was
no space left on the storage disk.[30]Thus, it appears likely
that Mr. Offret could not have obtained any video footage
from there when he was appointed to represent Mr. Vickers in
late February 2014. And Mr. Offret persuasively testified
that based on the information he had initially received from
Mr. Vickers, he had gone to that parking lot and was shown
where the video cameras were, “and from the information
I had [from Mr. Vickers], that wouldn't have shown
anything.”[31] Mr. Offret explained that after he told
Mr. Vickers that there was no video camera coverage of the
area he had described, Mr. Vickers told Mr. Offret that it
was a different area of the Alaska Club property that might
have relevant footage. When Mr. Offret then asked the Alaska
Club about that area, it said it had already recorded over
that video footage by that time.[32] No evidence was presented
as to precisely where Mr. Vickers is alleging he was parked
with CM at that property, or where the cameras were actually
located. Nor was testimony presented as to whether the time
spent at the Alaska Club parking lot was during the first,
after work encounter between CM and Mr. Vickers, or if it was
in the second carjacking encounter. The Court finds that Mr.
Offret's efforts with respect to the potential video
footage at the Alaska Club were not constitutionally
deficient. And no testimony or other evidence was presented
as to the investigative efforts made, or not made, by Mr.
Vickers's first counsel with regard to this potential
video footage.
Moreover,
even if trial counsel had been deficient in not obtaining the
video tapes, the Court was unpersuaded by the evidence
presented, which consisted principally of Mr. Vickers's
own conclusory and imprecise testimony on these topics at the
evidentiary hearing, that if trial counsel had been able to
obtain video footage from the various locations on the day of
the carjacking, the content on such video footage would have
been such that Mr. Vickers would not have pleaded guilty to
the carjacking charge.
d.
Failure to procure Mr. Vickers's cell phone records
Mr.
Vickers appears to assert that Mr. Offret was ineffective
because he did not review Mr. Vickers's own cell phone
records. To the extent this is a claim, the Court does not
find that Mr. Offret's failure to review Mr.
Vickers's own cell phone records constituted
constitutionally ineffective counsel. Presumably, Mr. Vickers
would have known the content of his own cell phone
communications prior to deciding to plead guilty. Mr. Offret
testified, and the records reflect, that Mr. Vickers's
phone had gone dead just a little before midnight on the day
of the carjacking. Mr. Offret also testified that he did not
recall whether Mr. Vickers had told him that there might be
useful information on that phone.[33]
Mr.
Vickers's cell phone records were admitted as exhibits at
the evidentiary hearing.[34] The Court has carefully reviewed
them. Mr. Vickers points to the following text he sent at
11:56 p.m. on January 10, 2014 to CM: “We might box he
might shoot who know but f--- if I die fo a cause yall
family.”[35] Mr. Vickers maintains this statement
allows for a reasoned inference that he did not have a gun.
Mr. Vickers did not explain who “he” is in this
text, and who is the “family” he references. The
Court disagrees with Mr. Vickers's counsel's
interpretation of this text.[36] Regardless, the Court finds
that if trial counsel had obtained this text message, it
would not have led a reasonable defense attorney to change
his recommendation as to the plea; nor would a defense based
on this text have likely succeeded at trial.[37] Further, Mr.
Vickers did not testify that if this text message had been
available to him, he would not have pleaded guilty but would
have proceeded to trial.[38] Since Mr. Offret successfully
negotiated a factual basis for the plea that did not contain
any reference to Mr. Vickers possessing a firearm, the Court
is not persuaded by a preponderance of the evidence that if
this text message had been obtained by Mr. Offret and
considered by him and Mr. Vickers, there is a reasonable
probability that Mr. Vickers would not have pleaded guilty to
the carjacking charge without a firearm in the factual basis
of the plea and instead would have insisted on going to
trial.
e.
Failure to review CM's extracted messages.
When
this motion was first filed, Mr. Vickers was of the view that
the Government had wrongfully failed to provide his counsel
with CM's extracted text messages. But at the evidentiary
hearing, it became clear that Mr. Offret had in fact received
those text messages from the Government on March 6, 2014,
less ...