United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
MARK W. BENNETT, District Judge.
This case is before me on petitioner Jessica Lynn Tran's April 5, 2013, pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Original § 2255 Motion) (Civ. docket no. 1), as amended, with the assistance of counsel, on November 19, 2013. See Amended Motion For Relief Under 28 U.S.C. § 2255 (Amended § 2255 Motion) (Civ. docket no. 32). Tran seeks relief on the basis of ineffective assistance of her federal trial counsel prior to her guilty plea to a firearm offense carrying a five-year mandatory minimum sentence. The respondent denies that Tran is entitled to any relief on her claim.
A. Factual Background
In a Report And Recommendation On Motion To Suppress (Crim. docket no. 48) in the underlying criminal case, to which no objections were filed, former Chief United States Magistrate Judge Paul A. Zoss explained the circumstances leading to Tran's arrest, as follows:
At about four o'clock on the afternoon of December 20, 2011, Sioux City Police Officers Noltze and Tyler began surveilling [Tran's] residence. The police had a warrant for the arrest of [Tran's] boyfriend, Gene Boykin, and they believed he could be found at [Tran's] residence. As they watched the house, they observed Boykin leave the residence to walk his dog and then re-enter the residence. They also observed four different vehicles arrive at the residence, with people from the vehicles entering the residence and then leaving after less than 20 minutes.
At about 7 o'clock, the police observed a pizza delivery man approach the residence to deliver a pizza. Boykin paid for the pizza at the door, and the delivery man left. A short time later, Officers Noltze and Tyler approached the residence. As they did so, they detected a strong odor of marijuana. They knocked on the door, and Boykin asked who it was. Officer Noltze responded that he was the pizza delivery man. Boykin opened the door, and the officers grabbed him and pulled him onto the porch, where they arrested and handcuffed him. Through the open door, officers observed [Tran] standing near several bags of marijuana and what appeared to be the grip of a pistol. The police told [Tran] "to stay put and not move, " and then entered the residence to secure her. The police asked Boykin if there were any other weapons in the house, and he told them there was a gun in the bedroom. With the assistance of Woodbury County deputy sheriffs who had arrived at the scene, Officer Tyler then performed a protective sweep of the entire residence, but did not seize any evidence.
Officer Noltze applied for and obtained a search warrant of [Tran's] residence. During the search, officers seized several bags and containers of marijuana, three marijuana plants, ammunition, and weapons.
Report And Recommendation (Crim. docket no. 48), 1-2. There does not appear to be any dispute that Tran was initially arrested and held on state charges, or that counsel from the state public defender's office was appointed to represent her on those charges.
B. Criminal Proceedings
Only Tran's boyfriend, Gene Boykin, Jr., was initially charged with federal offenses in federal court. Specifically, on January 19, 2012, a Grand Jury handed down an Indictment (Crim. docket no. 1), charging Boykin, in Count 1, with possessing with intent to deliver marijuana within 1, 000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 860, and, in Count 2, with possessing a firearm in furtherance of a drug-trafficking crime, that is, the crime charged in Count 1, in violation of 18 U.S.C. § 924(c)(1(A).
Subsequently, on January 30, 2012, in a "magistrate case, " No. 12-mj-12, a DEA task force officer swore out a Criminal Complaint (M.J. case docket no. 2) against Tran alleging that she had committed the same offenses charged against Boykin. The federal prosecutor explained the circumstances leading to the filing of that Criminal Complaint in federal court to me at Tran's eventual sentencing hearing, as follows:
[THE PROSECUTOR]:... I just want to put it on the record... that this defendant had an opportunity to remain in state court. She was arrested along with her boyfriend who was clearly much more involved in this and clearly-clearly more culpable.
* * *
... And we understood this defendant's role in the entire thing and went to her before we complained her early on and said, "We think we have a pretty good case against [your boyfriend], but if you want to cooperate, you can stay in state court." I've been in contact and was in contact at the time with the state prosecutors. They indicated that they extended a deal to her and her attorney indicating that they would allow them to even request a deferred judgment, not a deferred prosecution.
Now, they couldn't prob-maybe couldn't get that because a gun was involved, but given her criminal history and her involvement here, probation would have been a very likely outcome, and I talked even this morning with the state prosecutors.
And for some reason the defense attorney thought that there was a successful suppression issue regarding this issue. We informed her and her attorney that if she proceeded with the suppression issue it would be taken federal, her case would be, and this was not a joke, it's not a threat. It's just- it's not the kind of thing that would normally go federal even for the boyfriend for the kind of marijuana that was involved. It was a couple of pounds. But when weapons are involved and things like that, it gets our attention.
And the decision was made by the defense team at the state level to proceed with the suppression motion, and we carried through on our promise to bring it to the federal level.
Sentencing Hearing Transcript (Crim. docket no. 109), 4:10-14, 5:5-6:9. The Clerk of Court appointed Tran's federal trial counsel from the CJA panel on January 31, 2012. There is no indication in the record, at least none that has been brought to my attention or that I have discovered, to indicate that Tran's federal trial counsel had any involvement in her representation prior to that date.
The record shows that, even after the federal Criminal Complaint was filed against her, Tran's federal trial counsel and the prosecutor attempted to negotiate a way for Tran to get out of the federal firearm charge. In particular, on February 14, 2012, Tran's federal trial counsel and the prosecutor exchanged several e-mails, which included discussions of Tran's cooperation and debriefing, in which Tran's federal trial counsel stated, "Ms. Tran is reluctant for reasons of gratitude to testify against Gene Boykin." Respondent's Response Brief (Civ. docket no. 35), Exhibit 1 (Civ. docket no. 35-1 (emphasis in the original) (hard copy of federal trial counsel's e-mail of February 14, 2012, at 9:06 p.m.); see also id., Trial Counsel's Affidavit (Civ. docket no. 35-2), 2 (describing and quoting additional portions of the e-mail exchange).
Eventually, in a Superseding Indictment (Crim. docket no. 7), handed down on February 22, 2012, Tran was added as a second defendant on both counts in the federal case previously brought only against Boykin. On March 1, 2012, Tran filed a Written Waiver Of Personal Appearance At Arraignment (Crim. docket no. 11), in which she entered a plea of not guilty to both federal charges against her and stipulated to the entry of the standard discovery order used in this district. Tran's jury trial on the federal charges against her was originally set for May 7, 2012, see Order (Crim. docket no. 13), but was later continued to June 4, 2012, see Order (Crim. docket no. 21). Boykin was arraigned on the Superseding Indictment several weeks after Tran, see Minutes Of Defendant Boykin's April 20, 2012, Arraignment (Crim. docket no. 24), but his trial was also eventually set for June 4, 2012, see Order (Crim. docket no. 26).
The prosecution continued its attempts to obtain Tran's cooperation in federal court, in return for dropping the federal firearm charge against her. As the federal prosecutor explained at Tran's sentencing,
[THE PROSECUTOR]: Once it even came to the federal level, the defense team, through [federal trial counsel], was given the opportunity to not have the 924(c) charge, that we would just have the gun charge, sort of the two-point enhancement in the sentencing enhancement-
THE COURT: Right.
[THE PROSECUTOR]:-which I think would be a legitimate-I still thought it was a legitimate offer at the time. [Federal trial counsel] thought that having-he sent me a copy of the brief that had been drafted by the-or the argument that had been drafted by the state attorney, public defender, regarding the suppression issue. I didn't see anything wrong with it.
The offer was made. The offer was declined again to get rid of-even once you're at the federal level to get rid of the 924(c) [charge], and we proceeded to the suppression hearing.
Sentencing Hearing Transcript at 6:6-19.
Tran's federal trial counsel did not file Tran's Motion To Suppress (Crim. docket no. 29) in the federal proceedings until April 26, 2012, more than two months after she was indicted in federal court. Tran's federal trial counsel then filed an Amended Motion To Suppress (Crim. docket no. 38), on May 3, 2012. In the Amended Motion To Suppress, Tran's federal trial counsel argued that a warrantless search of Tran's home after Boykin's arrest was not justified, on various grounds, and that the search warrant eventually issued after the warrantless search did not justify the later search. Judge Zoss recommended that I deny Tran's Amended Motion To Suppress in a Report And Recommendation (Crim. docket no. 48), filed May 15, 2012. No objections to that Report And Recommendation were filed, and I accepted Judge Zoss's recommendation by Order (Crim. docket no. 61), filed July 18, 2012. In the interim, by Order (Crim. docket no. 53), filed June 20, 2012, the trial of the charges against both Boykin and Tran was continued to a date certain of August 29, 2012.
Neither Boykin nor Tran went to trial, however. By Order (Crim. docket no. 62), filed July 24, 2012, United States Magistrate Judge Leonard T. Strand set a guilty plea hearing for Tran for August 15, 2012, and struck the trial scheduled for August 29, 2012, as to her. On August 1, 2012, after Tran's guilty plea hearing was set, Boykin's trial was reset to begin on August 27, 2012. See Order (Crim. docket no. 64). On August 3, 2012, more than a week after Tran's guilty plea hearing was set, Judge Strand filed an Order (Crim. docket no. 65) setting a guilty plea hearing for Boykin for August 16, 2012, and also struck the trial scheduled for him.
At her plea hearing on August 15, 2012, before Judge Strand, Tran pleaded guilty to both federal charges against her pursuant to a "cooperation" plea agreement, which included an "appeal waiver." In a Report And Recommendation (Crim. docket no. 72), filed August 15, 2012, Judge Strand recommended that I accept Tran's guilty plea to both charges. I did so in an Order (Crim. docket no. 75), filed August 15, 2012. The next day, August 16, 2012, Boykin also pleaded guilty to both charges against him before Judge Strand, see Plea Hearing Minutes (Crim. docket no. 77), Judge Strand recommended that I accept his guilty plea in a Report And Recommendation (Crim. docket no. 78), and I did so. See Order (Crim. docket no. 81).
I held separate sentencing hearings for Tran and Boykin on November 29, 2012. See Sentencing Hearing Minutes (Crim. docket nos. 99 and 100). Near the beginning of Tran's sentencing hearing, I observed that the minimum sentence that I could impose was 72 months, consisting of the mandatory minimum of 12 months on Count 1 and the mandatory minimum of 60 months on Count 2, which had to be consecutive to the sentence on Count 1, and the parties agreed. I then made the following comments:
Now, when I was looking at this file, I couldn't really understand why the defendant was pleading guilty to two mandatory minimums, one of which has a consecutive component to it. But then I-yeah, I was thinking she would have been better off going to trial at least on the gun charge. But then I ...