United States v. Vickers

          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 ...