United States District Court, D. Alaska
ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DKT. 78)
TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
The
matter comes before the Court on Defendant Brian Keith
McGuire's Motion to Vacate, Set Aside, or Correct
pursuant to 28 U.S.C. § 2255 (the
“Motion”).[1] The Motion seeks to withdraw McGuire's
guilty plea on the grounds that it was involuntary due to
ineffective assistance of counsel.[2] Alternatively, the Motion
requests that McGuire be resentenced.[3] McGuire initially filed his
Motion to Vacate pro se; then, after the Court
granted his Motion to Appoint Counsel, [4]McGuire filed a
First Amended Motion to Vacate.[5] The United States opposes the
Motion.[6] The parties did not request an oral
argument and the Court finds it would not be helpful. For the
reasons stated below, McGuire's Motion to Vacate are
DENIED.
II.
BACKGROUND
This
case arises out a guilty plea entered by McGuire, in which he
admitted to sexually abusing his 15-year-old step-daughter,
Juvenile A, and to creating at least 300 images and 48 videos
of that abuse.[7] On September 9, 2014, Juvenile A disclosed
that she had been abused by McGuire to her volleyball
coach.[8] Juvenile A was later forensically
interviewed by the Anchorage Police Department
(“APD”) and stated that she believed McGuire
recorded the abuse on his iPhone.[9] The APD applied for,
received, and executed a search warrant on McGuire's
residence on September 9, 2014.[10] During the search, APD
seized several of McGuire's electronic devices including
two Asus laptops and accompanying hard drives.[11] APD's
forensic analysis of the laptop and hard drives revealed that
they contained child pornography, including images and videos
of McGuire abusing Juvenile A.[12] The State of Alaska issued a
no-bail warrant for McGuire's arrest on November 26,
2014.[13]
On
December 16, 2014, the United States indicted McGuire for
crimes related to his sexual exploitation of Juvenile
A.[14] The Indictment alleged six counts: three
counts of Permitting a Minor to Engage in Sexually Explicit
Conduct for the Production of Child Pornography in violation
of 18 U.S.C. §§ 2251(b) and (e), and three counts
of Production of Child Pornography in violation of 18 U.S.C.
§§ 2251(a) and (e).[15] At the time, McGuire was in
the State of Alaska's custody awaiting trial for 48
counts of Sexual Abuse in the First Degree in violation of AS
11.41.434(a)(2), Sexual Abuse of a Minor in the Second Degree
in violation of AS 11.41.436(a)(3), Unlawful Exploitation of
a Minor in violation of AS 11.41.455(a)(1) and (2), and the
Possession of Child Pornography in violation of AS
11.61.127(a).[16]
McGuire
was arraigned on the federal charges on December 22, 2014 and
pleaded not guilty.[17] At some point after arraignment, McGuire
retained the services of Attorney John M. Murtagh
(“Counsel”) who was also representing McGuire in
the state prosecution.[18] At all relevant times during his
state and federal prosecutions, McGuire was represented by
Counsel.[19]
After
negotiating a Plea Agreement[20] with the United States,
McGuire notified the Court he intended to change his plea to
guilty.[21] Under the terms of the Plea Agreement,
McGuire agreed to plead guilty to Counts 1 and
4-i.e., one count of Permitting a Minor to Engage in
Sexually Explicit Conduct for the Production of Child
Pornography, 18 U.S.C. §§ 2251(b) and (e); and one
count of Production of Child Pornography, 18 U.S.C.
§§ 2251(a) and (e).[22] The rest of the charges would
be dismissed.[23] McGuire entered a guilty plea on March
7, 2016.[24]
Previously,
on February 22, 2016, McGuire pleaded guilty in state court
to a consolidated count of Sexual Abuse of a Minor in the
Second Degree.[25] On May 6, 2016, the state court
sentenced him to a 25-year term of imprisonment with 5 years
suspended followed by 15 years of probation.[26]
The
Presentence Report (“PSR”) calculated that
McGuire's total offense level was 42, with a criminal
history category of I.[27] Given McGuire's offense level and
criminal history, the United States Sentencing Guidelines
(the “Guidelines”) would dictate a sentencing
range of 360 months to life in prison.[28] However, each
count to which McGuire pleaded guilty carried a statutory
minimum of 15-years of imprisonment and a statutory maximum
of 30-years of imprisonment. Under these circumstances, the
Guidelines range was calculated as 360 to 720
months.[29] On July 6, 2016, after consideration of
the PSR and the factors identified in 18 U.S.C.
§3553(a), the Court sentenced McGuire to a 240-month
term of imprisonment on each count, to run concurrently,
followed by a lifetime of supervised release.[30] The Court
also ordered that McGuire's federal sentence run
concurrently with his state sentence.[31]
On May
18, 2017, McGuire filed an initial Motion to Vacate under 28
U.S.C. § 2255 and moved to appoint
counsel.[32] McGuire's original Motion to Vacate
asserted fifteen grounds for relief.[33] One year later, on May
18, 2018, McGuire, through counsel, filed an Amended Motion
to Vacate which narrowed and clarified his asserted grounds
for relief.[34] The Amended Motion argues that
McGuire's trial counsel, Counsel, was ineffective for
four reasons: (1) Counsel failed to seek the suppression of
the contents of McGuire's cell phone and a computer
password allegedly obtained in violation of defendant's
Miranda rights; (2) Counsel did not meaningfully
advise McGuire regarding his potential sentencing exposure;
(3) Counsel failed to effectively advocate for a federal
sentence that ran concurrently with a state sentence; and (4)
Counsel failed to object to the PSR's offense level
calculations.[35] On March 25, 2019, the United States
filed a Response, which opposed McGuire's Motion on each
ground.[36] On August 9, 2019, McGuire filed a
Reply.[37]The Motion has been fully briefed and is
now ripe for resolution.[38]
III.
LEGAL STANDARD
Under
28 U.S.C. § 2255, a district court may “vacate,
set aside, or correct” a sentence of a federal prisoner
that was imposed in violation of the Constitution or a law of
the United States. On a motion for relief under 28 U.S.C.
§ 2255, “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect
thereto.”[39] If the Court determines that relief is
warranted, “the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.”[40]
However,
“the district court may deny a § 2255 motion
without holding an evidentiary hearing if ‘(1) the
petitioner's allegations, accepted as true, would not
entitle him to relief; or (2) the allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or allege conclusions rather than
statements of fact.'”[41] Thus, “if the
record refutes the applicant's factual allegations or
otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.”[42]
“Section 2255 requires only that the district court
give a claim careful consideration and plenary processing,
including full opportunity for presentation of the relevant
facts.”[43]
A.
Ineffective Assistance of Counsel
A claim
of ineffective assistance of counsel is rooted in the Sixth
Amendment right to counsel, which is applicable at the
plea-bargaining stage of a criminal proceeding.[44] A defendant
asserting a claim of ineffective assistance of counsel must
satisfy the two-pronged test defined in Strickland v.
Washington.[45] Under that test, a defendant must show
that (1) counsel's performance was deficient,
i.e., “fell below ‘an objective standard
of reasonableness;'”[46] and (2) that the deficiency
was prejudicial to the defense, i.e., “there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.”[47]
In
addressing the first element, the performance prong, judicial
scrutiny of an attorney's performance, especially in
hindsight, is highly deferential.[48] Attorney conduct should
be evaluated from the attorney's perspective at the time
of the representation.[49] Generally, an attorney's
performance is strongly presumed to fall within the wide
range of reasonably professional, competent
assistance.[50] “The reasonableness of
counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions.
Counsel's actions are usually based, quite properly, on
informed strategic choices made by the defendant and on
information supplied by the defendant.”[51]
The
second prong, prejudice, “focuses on the question
whether counsel's deficient performance renders the
result of . . . the proceeding fundamentally
unfair.”[52] A reasonable probability that the
results of the proceeding would have been different is
“a probability sufficient to undermine confidence in
the outcome.”[53] A defendant must make a greater showing
than simply asserting an error that could theoretically have
some effect on the outcome of the proceeding, but, a showing
by a preponderance of the evidence is not required by
Strickland.[54]
Thus, a
defendant must prove both deficient performance and
consequent prejudice to succeed in establishing ineffective
assistance.[55] The court may evaluate one or both
prongs in determining whether to grant a defendant's
habeas petition on these grounds. However, the court need not
inquire whether an attorney's performance was deficient
if such alleged deficiency could not have resulted in
prejudice under Strickland.[56]
B.
Ineffective Assistance of Counsel in Plea Agreements
“Because
‘an intelligent assessment of the relative advantages
of pleading guilty is frequently impossible without the
assistance of an attorney' . . . counsel have a duty to
supply criminal defendants with necessary and accurate
information.”[57] Where a petitioner alleges ineffective
assistance of counsel when entering into a plea agreement,
“[t]he longstanding test for determining the validity
of a guilty plea is ‘whether the plea represents a
voluntary and intelligent choice among the alternative causes
of action open to the defendant.'”[58] For a guilty
plea, a petitioner can only “attack the voluntary and
intelligent character of the guilty plea by showing that the
advice he received from counsel was not within [the range of
competence demanded of attorneys in criminal
cases].”[59] In addition, to satisfy the prejudice
prong of the Strickland standard in the context of a
guilty plea, a petitioner must “show the outcome of the
plea process would have been different with competent
advice;” in other words, the petitioner must show
“that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pleaded
guilty and would have insisted on going to
trial.”[60]
IV.
ANALYSIS
McGuire's
Motion raises four grounds for ineffective assistance of
counsel: (1) Counsel failed to seek the suppression of the
contents of McGuire's cell phone, and a password obtained
in violation of defendant's Miranda rights; (2)
Counsel did not meaningfully advise McGuire of the penalty
range he was likely to face after pleading guilty; (3)
Counsel failed to effectively advocate for a concurrent
sentence; and (4) Counsel failed to object to the PSR's
offense level calculations.[61] The United States argues that
each of McGuire's assertions are without
merit.[62] The Court discusses each ground in turn.
A.
Whether Trial Counsel Was Ineffective For Not Seeking the
Suppression of the Contents of McGuire's Cell Phone, and
a Password Obtained in Violation of McGuire's
Miranda Rights
McGuire
first argues Counsel was ineffective for failing to
investigate whether APD acquired McGuire's passwords to
his laptop and iPhone in violation of his Miranda
rights.[63]McGuire asserts that “[w]ithout the
acquisition of [his] password, it is extremely unlikely that
agents would have been able to access the contents of his
computer” and without the digital evidence that his
conduct crossed-state lines, McGuire would never have faced
federal charges.[64]McGuire further asserts that had Counsel
investigated the Miranda issue and moved to suppress
the cell phone and computer contents, “a
Miranda motion would have been meritorious and there
is a reasonable probability that granting the motion would
have affected the outcome of the case.”[65]
In
opposition, the United States argues that McGuire is barred
from raising constitutional deprivations that arose before
his guilty plea.[66] Additionally, the United States argues
that McGuire's claim fails as a matter of fact because
the laptop containing the child pornography was not password
protected when it was seized.[67] Finally, the United States
argues that Counsel's choice not to pursue a motion to
suppress during plea negotiations was an informed strategic
choice rather than ineffective assistance.[68]
For
purposes of the Order, the Court assumes that McGuire is
permitted to argue his Miranda claim as it relates
to the effectiveness of his counsel at trial.[69] Even if,
arguendo, APD acquired McGuire's passwords
through a violation of McGuire's Miranda rights.
McGuire's claim fails on the merits.[70] To prevail on
his claim under Strickland, McGuire must show that
by not filing a motion to suppress, his trial counsel's
performance fell below “an objective standard of
reasonableness”[71] and that had trial counsel filed a
motion to suppress, there is a reasonable probability that
“the result of the proceeding would have been
different.”[72]
McGuire
cannot show deficient performance. “[T]he failure to
file a suppression motion does not constitute per se
ineffective assistance of counsel.”[73] As the Ninth
Circuit advises, courts should evaluate trial counsel's
conduct considering “counsel's perspective at the
time of the alleged error and in light of all the
circumstances, ”[74] and apply a “strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance.”[75] “In
determining whether [Petitioner] received effective
assistance of counsel, [courts] will neither second-guess
counsel's decisions, nor apply the fabled twenty-twenty
vision of hindsight, but rather, will defer to counsel's
sound trial strategy.”[76] Additionally, courts should
view trial counsel's conduct in light of the
defendant's statements or actions.[77]
Here,
Counsel's decision not to pursue a motion to suppress was
reasonable. Counsel's Affidavit attests to his
considerations in not pursuing a motion to suppress during
plea negotiations.[78] Counsel states that his first
consideration was that he and McGuire “began the case
looking towards [sic] negotiations and did not have to reach
the stage of motion practice.”[79] Given the stage of
McGuire's case-not yet proceeding to trial-it is not
objectively unreasonable that an attorney would decide not to
pursue a motion to suppress at that time.
Additionally,
contrary to McGuire's assertions, Counsel's decision
was made with consideration and investigation of the merits
of a Miranda claim. Counsel reviewed the audio of
McGuire's initial police contact.[80] He observed
that McGuire declined to be interviewed, asserted his right
to counsel, and was subsequently asked for the passwords to
his devices.[81] Counsel states that, based on what he
heard, he did not conclude that the McGuire was in
“full custody” at the time of the questioning-a
potential bar to a Miranda claim.[82] Additionally,
Counsel believed that police would have been able to access
the devices without the passwords.[83] Therefore, he determined
that a motion to suppress would likely be futile in light of
the doctrine of inevitable discovery.[84] McGuire does
not specifically dispute Counsel's assertions. Instead,
McGuire rests on his bare allegations that Counsel failed to
investigate.[85]
Based
on the record, Counsel's decision not to pursue a motion
to suppress during plea negotiations was not objectively
unreasonable. Counsel took reasonable steps to investigate
McGuire's potential claim and made a reasoned judgment
based on his professional determination that a
Miranda claim was likely futile.[86] Counsel's
decision is reinforced by McGuire's indications that he
wished to negotiate a beneficial plea agreement rather than
go to trial.[87] Therefore, Counsel's decision not to
file a motion to suppress does not amount to ineffective
assistance of counsel under Strickland. Accordingly,
McGuire is not entitled to relief on this ground.
B.
Whether Trial Counsel Meaningfully Advised McGuire of the
Penalty Range He was Likely to Face
McGuire
claims that Counsel miscalculated his sentencing exposure,
which amounted to ineffective assistance of
counsel.[88] McGuire asserts that on February 19,
2016, Counsel calculated that McGuire's total offense
level was 35 with an anticipated a Guideline range of 135
to168 months.[89] At the time he entered into the Plea
Agreement McGuire claims that he believed that his sentence
would be capped at 15 years.[90] However, as calculated by the
PSR, McGuire's total offense level was 42, which carried
a Guideline range of 360 to 720 months.[91] McGuire now
argues that Counsel's error amounts to ineffective
assistance, and further contends that he would not have
pleaded guilty had he known his Guidelines range was
considerably higher than what Counsel had
calculated.[92]
A
guilty plea is invalid if a defendant does not understand the
charges against him or the possible punishment he
faces.[93] In the guilty plea context, “the
gross mischaracterization of the likely outcome” of a
guilty plea “combined with the erroneous advice on the
possible effects of going to trial, falls below the level of
competence required of defense
[counsel].”[94] However, a “mere inaccurate
prediction, standing alone, [does] not constitute ineffective
assistance” of counsel.[95] Rather, to show prejudice in
the context of a guilty plea, the defendant “must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.”[96] In the
context of a sentencing miscalculation, a defendant suffers
no prejudice if a court (1) accurately informs the defendant
of the potential sentencing range they would face after
pleading guilty, and (2) informs the defendant that the
discretion to impose a sentence remained entirely with the
court.[97]
For
example, in Doganiere, a § 2255 petitioner
argued he received ineffective assistance of counsel because
his trial counsel indicated he would receive a maximum
sentence of twelve years imprisonment if he pleaded
guilty.[98] However, at sentencing the court
sentenced petitioner to fifteen years imprisonment followed
by twenty years of probation.[99] Nevertheless, the Ninth
Circuit found that “[petitioner] suffered no prejudice
from his attorney's prediction because, prior to
accepting his guilty plea, the court explained that the
discretion as to what the sentence would be remained entirely
with the court.”[100]
Similarly,
in Gonzalez, a § 2255 petitioner argued that
his attorney's “gross miscalculation” of his
likely sentence under the Guidelines constituted ineffective
assistance of counsel.[101] Without discussing whether trial
counsel's calculation constituted a “gross
miscalculation, ” the Ninth Circuit found that the
petitioner failed to show he suffered prejudice because the
sentencing court informed Gonzalez of the maximum possible
sentences for the offenses to which he pleaded
guilty.[102]
The
Court does not inquire into whether Counsel incorrectly
calculated McGuire's Guideline range because McGuire
cannot show he suffered prejudice. McGuire claims that he
suffered prejudice from Counsel's miscalculation because
he would not have accepted the Plea Agreement had he known
his range would be higher than 15 years.[103] However,
this assertion is plainly contradicted by the record. At
McGuire's change of plea hearing, he participated in an
extended colloquy with the Court:[104]
THE COURT: All right. And I'm sorry, I may have asked
this question, but if I am repeating myself, I have to
apologize. Are you satisfied with the work that Mr.
Murtagh's done for you in this case?
THE DEFENDANT: Yes, yes.
THE COURT: Yes, thank you -- Page 9. So for Count 1 --
actually, they're the same for both Counts 1 and 4.
It's a mandatory minimum of 15 years, up to 30 years of
imprisonment, a fine of up to $250, 000, a 100-dollar
mandatory special assessment -- and again, the fine and
special assessment are as to each count -- and not less than
-- actually, it should be not fewer than five years and not
more than life on supervised release. Do you understand the
maximum penalties?
THE DEFENDANT: I do, sir.
THE COURT: Now, the sentence that's imposed might be
harsher than the one you expect or even one that the
Government recommends. If that happens, as I mentioned
before, you're still going to be bound by your guilty
plea and unable to withdraw from your plea as long as the
punishment that's imposed is consistent with your plea
agreement. Do you understand that?
THE DEFENDANT: I do.[105]
The
above excerpt shows that not only was McGuire informed by the
Court that each of the counts to which he would be pleading
guilty carried a statutory sentencing range of 15 to 30
years, but also McGuire was informed that the Court had
discretion to impose a harsher sentence than one discussed or
expected by the Parties.
Thus,
McGuire's claim that he was surprised to learn that his
Guideline range was 360 to 720 months when he received the
PSR is not credible. Despite Counsel's alleged
miscalculations during plea negotiations, the Court
accurately informed McGuire of his potential sentencing range
and informed McGuire that the discretion to impose a sentence
remained entirely with the Court. Therefore, under
Doganiere and Gonzalez, McGuire did not
suffer prejudice from Counsel's alleged miscalculations.
He was apprised of the potential sentence before he changed
his plea and decided to proceed. Accordingly, McGuire is not
entitled to relief on this ground.
C.
Whether Trial Counsel Failed to Effectively Advocate for a
Concurrent Sentence
Next,
McGuire claims that by failing to challenge certain
statements made by the Court during sentencing, Counsel
rendered ineffective assistance.[106] McGuire asserts that
the Court erroneously indicated that it could order
McGuire's federal sentence to run consecutive to his
state sentence.[107] McGuire further asserts that when this
occurred, Counsel failed to correct the court and did not
argue for a concurrent sentence.[108] However, McGuire
concedes “[he] ultimately received a fully concurrent
sentence. . . .”[109] Therefore, any failure to
effectively advocate for a concurrent sentence resulted in no
prejudice to McGuire. Accordingly, McGuire is not entitled to
habeas relief on this ground.
D.
Whether Trial Counsel Was Ineffective for Failing to Object
to the PSR's Offense Calculations
Finally,
McGuire claims that he received ineffective assistance of
counsel because Counsel failed to raise a meritorious
objection to a Guideline enhancement applied by the
PSR.[110] Specifically, McGuire contends that
Counsel “failed to identify a case that was directly on
point” when he objected to the PSR's calculations,
which found that McGuire's two counts could not be
grouped.[111]
“An
attorney's ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under
Strickland.”[112] In criminal cases,
“counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.”[113] While there is a
dearth of case law identifying the bounds of
“reasonable” legal research, the Ninth Circuit
has recently clarified that in the context of fact
investigations “‘[t]he duty to investigate and
prepare a defense' is flexible, but it ‘is not
limitless: it does not necessarily require that every
conceivable witness be interviewed or that counsel must
pursue ‘every path until it bears fruit or until all
conceivable hope withers.'”[114] Further,
“[i]n assessing the reasonableness of an attorney's
investigation . . ., a court must consider not only the
quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney
to investigate further.”[115]
Here,
McGuire concedes Counsel objected to the PSR's Guideline
calculation.[116] Counsel argued that McGuire's
counts should be grouped in order to avoid an upward
adjustment of the total offense level.[117]
Furthermore, Counsel maintained this objection in his
sentencing memorandum.[118] Nevertheless, McGuire asserts that
there was a case on point, United States v. Tank,
[119] which Counsel did not
discover.[120]
McGuire
does not-and cannot-credibly allege that Counsel failed to
research the issue. In support of his objection, Counsel
cited to the commentary of 3D1.2 and accompanying case law
demonstrating he examined the Guidelines and related
authorities.[121] Therefore, Counsel conducted enough
research to support his objection with legal authority. It is
not unreasonable that Counsel would stop researching after he
found sufficient support to raise a colorable argument. To
hold otherwise would require trial counsel to exhaustively
research every potential legal source. This standard would be
untenable.[122] Although his objection was ultimately
unsuccessful, it is well-settled that ineffective assistance
of counsel stems from failure to make reasonable efforts and
not from failure to achieve desired results.[123] McGuire
has not alleged that Counsel failed to perform reasonable
research efforts and the record does not indicate objectively
unreasonable investigation. Therefore, McGuire has failed to
demonstrate Counsel's conduct was objectively
unreasonable under Strickland.[124]
Accordingly, McGuire is not entitled to relief on this
ground.
McGuire
has not shown that he was denied adequate representation as
guaranteed under the Sixth Amendment. Accordingly, he is not
entitled to relief under § 2255 on the grounds asserted
in the Motion.
V.
CERTIFICATE OF APPEALABILITY
A
certificate of appealability (“COA”) is required
to appeal a petition brought under 28 U.S.C. §
2255.[125] Under the Federal Rules Governing
Section 2255 Cases, “[t]he district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant.”[126] Where a
petitioner makes “a substantial showing of the denial
of a constitutional right, ” a COA should be
issued.[127] This standard requires that the
petitioner “demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are
adequate to deserve encouragement to proceed
further.”[128]McGuire's petition does not meet
this standard. McGuire's petition is without merit, and
his factual contentions are contradicted by the record before
the Court. Accordingly, the Court declines to issue a
certificate of appealability in this action.
VI.
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