1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA

12 UNITED STATES OF AMERICA, Case No. 21-cr-02063-BAS-2 13 Case No. 23-cv-01071-BAS Plaintiff, 14 ORDER DENYING

DEFENDANT’S MOTION TO

15 v.

VACATE, SET ASIDE, OR

16 EVERETT JUSTIN CURTIS, CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 132) 17 Defendant.

18 19 20 As noted by the Supreme Court, “the guilty plea and the often concomitant 21 plea bargain are important components of this country’s criminal justice system.” 22 Blackledge v. Allison, 431 U.S. 63, 71 (1977). The system of plea bargaining can be 23 advantageous to both sides: it results in a speedy disposition, it can reduce the 24 amount of custodial time a defendant is facing, and prosecutors conserve vital and 25 scarce resources. But “[t]hese advantages can be secured . . . only if dispositions by 26 guilty plea are accorded a great measure of finality.” Id. 27 So it is with this case. Defendant Everett Justin Curtis avoided a twenty-year 1 helped procure was the cause of his friend B.M.P.’s death. He admitted this as part 2 of the factual basis for his plea, despite the fact that the coroner’s report reflected that 3 other factors contributed to the death, including alcohol, cocaine, and the victim’s 4 hypertensive cardiovascular disease. Ultimately, Defendant obtained a sentence of 5 151 months, well below the 240-month sentence he faced if he had been convicted at 6 trial. 7 Having waived his right to appeal, Defendant now attempts to circumvent the 8 plea bargain, asking this Court to—not set aside his conviction for the lesser included 9 offense—but simply reduce his sentence to 121 months. The Court declines to do so 10 and DENIES the Motion filed under 28 U.S.C. § 2255. (ECF No. 132.) 11 I. BACKGROUND 12 A. Written Plea Agreement 13 On August 22, 2022, in exchange for dismissing the Indictment charging 14 distribution of fentanyl resulting in death, which carried a twenty-year mandatory 15 minimum sentence, Defendant pled to knowingly distributing fentanyl. (ECF Nos. 16 94, 135.) In the written plea agreement, Defendant admitted that “as a result of 17 B.M.P’s use of the fentanyl supplied by Defendant, B.M.P overdosed and died.” 18 (Plea Agreement § II.B, ECF No. 93.) Furthermore, “Defendant agrees and 19 stipulates . . . that, beyond a reasonable doubt, B.M.P.’s death was caused by the 20 fentanyl Defendant provided to B.M.P.” (Id.) Counsel states this plea agreement 21 was reached after several discussions with Defendant, which involved a review of 22 the facts, including the coroner’s report; the elements of the crime; and potential 23 punishment. (Declaration of Mayra Garcia (“Garcia Decl.”) ¶ 5, ECF No. 139-1 at 24 Ex. 4.) 25 In this written plea agreement, Defendant also stated that he “had a full 26 opportunity to discuss all the facts and circumstances of this case with defense 27 counsel” (Plea Agreement § VI.A), and that he was satisfied with his counsel (id. § 1 resulted from the use of the substance Defendant distributed, and “BECAUSE 2 DEFENDANT ADMITS THAT DEATH RESULTED, DEFENDANT IS NOT 3 SAFETY-VALVE ELIGIBLE UNDER § 5C1.2(a)(3).” (Id. § X (emphasis in 4 original).) 5 Additionally, Defendant acknowledged that he was facing a maximum of 6 twenty years in custody. He understood the Sentencing Guidelines are advisory, not 7 mandatory, and that the Court “may impose a sentence more severe or less severe 8 than the otherwise applicable Guidelines, up to the maximum” possible sentence. 9 (Plea Agreement §§ III.A, VIII.) 10 Finally, in the written plea agreement, Defendant agreed to the following 11 appellate waiver: 12 Defendant waives (gives up) all rights to appeal and to collaterally attack every aspect of the conviction and sentence. This waiver includes, but is 13 not limited to, any argument that the statute of conviction or Defendant’s 14 prosecution is unconstitutional and any argument that the facts of this case do not constitute the crime charged. The only exceptions are the 15 Defendant may collaterally attack the conviction or sentence on the basis 16 that Defendant received ineffective assistance of counsel. 17 (Plea Agreement § XI.) 18 B. Plea Colloquy 19 At the plea colloquy, Defendant said he had read the written plea agreement 20 completely or someone had read it to him. (Plea Colloquy Tr. 5:14–16, ECF No. 21 139-1 at Ex. 2.) He also repeated that he was satisfied with the representation of his 22 counsel, that he had a chance to talk to his lawyer about the plea agreement, and he 23 had no questions about it. (Id. 5:5–6, 17–21.) 24 Defendant again acknowledged that he was facing twenty years in custody. 25 (Plea Colloquy Tr. 8:5–11.) The Court advised Defendant that, although his lawyer 26 may have advised him of the guidelines, the Court “may see it differently, and, if [the 27 Court] find[s] that your guideline range is different than your lawyer is estimating it 1 Defendant said he understood. (Id. 10:11.) Additionally, the Court repeated that the 2 Sentencing Guidelines were advisory, not mandatory, and if the Court “sentence[s] 3 you to more time than your guideline range, you will not be allowed to withdraw 4 your guilty plea.” (Id. 9:23–10:3.) Again, Defendant said he understood and still 5 wanted to plead guilty. (Id. 10:4, 17–18.) 6 The Court reviewed the appellate waiver with Defendant, and he agreed that, 7 as part of his plea agreement, he had given up the right to appeal or collaterally attack 8 the sentence “even if [he did not] like what ultimately happens at sentencing.” (Plea 9 Colloquy Tr. 6:11–15.) As part of the factual basis for his plea, Defendant agreed 10 that he had supplied fentanyl to B.M.P, and as a result of the fentanyl he helped 11 B.M.P. obtain, B.M.P overdosed and died. He agreed the death was caused by that 12 fentanyl. (Id. 11:15–24.) 13 C. Sentencing 14 In the Presentence Report, the Probation Officer noted that “[t]he San Diego 15 County Medical Examiners Office confirmed, based on the autopsy findings, 16 [B.M.P.’s] cause of death was acute fentanyl, alcohol and cocaine intoxication with 17 hypertensive cardiovascular disease listed as contributing.” (Presentence Report 18 (“PSR”) ¶ 6, ECF No. 121.) The Probation Department calculated Defendant’s 19 guideline range as 188–235 months. (Id. ¶ 111.) Defense counsel reviewed this PSR 20 with Defendant before sentencing. (Garcia Decl. ¶ 6.) 21 At sentencing, both the Government and defense counsel agreed that 22 Defendant’s base offense level began at 38 because the fentanyl he had helped 23 distribute caused B.M.P.’s death. (ECF Nos. 98, 109.) With acceptance of 24 responsibility, the resulting guideline range was 188–235 months. (Id.) The Court 25 noted that, although Defendant’s criminal history category was only a II, there were 26 numerous serious convictions that did not count in calculating his criminal history 27 category including robbery, theft with a prior, assault with a semi-automatic firearm, 1 10:11–21, ECF No. 139-1 at Ex. 3.) There was no mention of gang ties in the PSR 2 or at sentencing. 3 The Court ultimately sentenced Defendant to 151 months. (ECF No. 123.) 4 After sentencing Defendant, the Court confirmed with both counsel and Defendant 5 that Defendant had given up his right to appeal. (Sentencing Tr. 11:20–24.) 6 D. This Motion 7 Defendant now files a Motion under 28 U.S.C. § 2255, claiming: 8 (1) ineffective assistance of counsel; (2) his offense was not the cause of death; (3) he 9 was eligible for safety valve; and (4) the Court should have varied downward. (ECF 10 No. 132.) Defendant asks that his sentence be reduced from 151 to 121 months. (Id.) 11 The Government responds (ECF No. 139), and Defendant replies (ECF No. 140). 12 For the reasons stated below, the Court denies Defendant’s Motion. 13 II. LEGAL STANDARD 14 Under 28 U.S.C. § 2255, a defendant may attack a sentence on “the ground 15 that the sentence was imposed in violation of the Constitution of the United States, 16 or that the court was without jurisdiction to impose such sentence, or that the sentence 17 was in excess of the maximum authorized by law, or is otherwise subject to collateral 18 attack.” “Section 2255 is not designed to provide criminal defendants repeated 19 opportunities to overturn their convictions on grounds which could have been raised 20 on direct appeal.” United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985); 21 see also United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (“[H]abeas 22 review is not to substitute for an appeal.”). “[A]n error that may justify reversal on 23 direct appeal will not necessarily support a collateral attack on a final judgment.” 24 United States v. Addonizio, 442 U.S. 178, 184 (1979). “[U]nless the claim alleges a 25 lack of jurisdiction or constitutional error, the scope of collateral attack has remained 26 far more limited.” Id. at 185. 27 Allegations of sentencing errors, when not directly appealed, are not generally 1 district court to consider the merits of such a challenge. See United States v. 2 Schlesinger, 49 F.3d 483, 484 (9th Cir. 1994) (“[N]onconstitutional sentencing errors 3 that have not been raised on direct appeal have been waived and generally may not 4 be reviewed by way of 28 U.S.C. § 2255.”). To the extent a defendant fails to raise 5 these issues on direct appeal, he has procedurally defaulted the claims, and the claims 6 may be raised in a habeas petition only if the defendant can first demonstrate either 7 “cause” for failing to raise the issues earlier and actual “prejudice” or that he is 8 “actually innocent.” Braswell, 501 F.3d at 1149. 9 Furthermore, “[a] defendant’s waiver of his rights to appeal and to bring a 10 collateral attack is generally enforced if ‘(1) the language of the waiver encompasses 11 his right to appeal on the grounds raised, and (2) the waiver is knowingly and 12 voluntarily made.’” Davies v. Benov, 856 F.3d 1243, 1246 (9th Cir. 2017) (quoting 13 United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)). “While a defendant 14 must waive the right to appeal knowingly and voluntarily, the defendant need not be 15 aware of possible grounds of appeal.” United States v. Lo, 839 F.3d 777, 784 (9th 16 Cir. 2016). “We will enforce a valid waiver even if the claims that could have been 17 made on appeal absent the waiver appear meritorious because ‘the whole point of a 18 waiver….is the relinquishment of claims regardless of this merit.’” Id. at 783 19 (quoting United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2016)). 20 “[A] defendant who pleads guilty upon the advice of counsel ‘may only attack 21 the voluntary and intelligent character of the guilty plea by showing that the advice 22 he received from counsel was ineffective.’” Lambert v. Blodgett, 393 F.3d 943, 979 23 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in a 24 claim of ineffective assistance of counsel in a guilty plea, the defendant must meet 25 the Strickland test; that is, he must show first “that counsel’s assistance was not 26 within the range of competence demanded of counsel in criminal cases,” and second, 27 that he suffered actual prejudice as a result of this incompetence. Id. at 979–80 (citing 1 “A deficient performance is one in which counsel made errors so serious that 2 she was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 3 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 4 668, 687 (1984)). “Review of counsel’s performance is highly deferential and there 5 is a strong presumption that counsel’s conduct fell within the wide range of 6 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 7 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 8 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 9 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 10 In order to satisfy the second “prejudice” prong in a guilty plea case, 11 “defendant must show that there is a reasonable probability that, but for counsel’s 12 errors, he would not have pleaded guilty and would have insisted on going to trial.” 13 Hill, 474 U.S. at 59. 14 III. ANALYSIS 15 A. Ineffective Assistance of Counsel 16 Defendant argues his attorney was ineffective in that his attorney had “little 17 time to gather all the facts in the case,” failed to provide him with the PSR, 18 misinformed him as to the sentence he would be agreeing to since Defendant believed 19 he was agreeing to a 120-month sentence, and “made no effort to distinguish the 20 irregularities in the coroner’s report.” (ECF No. 132.) Not one of these claims rises 21 to the level of ineffective assistance of counsel. 22 First, with respect to the allegation that counsel had insufficient time to gather 23 the facts of the case, that claim is belied by the record. The record shows that, at the 24 request of counsel, the Court continued the trial date several times after a new 25 attorney was appointed. (ECF Nos. 67, 79, 86.) These continuances were to give 26 counsel plenty of time to gather the facts of the case. Counsel confirms that she had 27 several discussions with Defendant, which involved a review of the facts, including 1 Decl. ¶ 5.) Moreover, Defendant stated in his written plea agreement that he was 2 satisfied with his counsel and that he “had a full opportunity to discuss all the facts 3 and circumstances of this case with defense counsel.” (Plea Agreement §§ VI.A, 4 XV.) He repeated these statements at the plea colloquy where he said he was satisfied 5 with the representation of his counsel, he had a chance to talk to his lawyer about the 6 plea agreement, and he had no questions about it. (Plea Colloquy Tr. 5:5–6, 17–21.) 7 Thus, this ground is patently frivolous. 8 Additionally, although Defendant claims he did not receive a copy of the PSR, 9 he fails to explain how this was prejudicial. Counsel states that she reviewed the PSR 10 with Defendant. (Garcia Dec. ¶ 6.) Defendant does not explain how receiving a copy 11 of the PSR would have resulted in his insistence that he go to trial. 12 Additionally, to the extent Defendant is arguing his attorney misinformed him 13 that he was agreeing to a 120-month sentence, the written plea agreement and the 14 plea colloquy make it clear that Defendant was adequately advised that he was facing 15 a twenty-year maximum and that there was no guarantee the Court would follow the 16 recommendations of his lawyer. Specifically, the Court advised Defendant that, 17 although his lawyer may have estimated his guideline range, the Court “may see it 18 differently, and, if [the Court] finds that your guideline range is different than your 19 lawyer is estimating it to be, you will not be allowed to withdraw your guilty plea.” 20 Defendant said he understood. (Plea Colloquy Tr: 6:5–11.) Additionally, the Court 21 repeated that the Sentencing Guidelines were advisory, not mandatory, and if the 22 Court “sentence[s] you to more time than your guideline range, you will not be 23 allowed to withdraw your guilty plea.” (Id. 9:23–10:4.) Again, Defendant said he 24 understood and still wanted to plead guilty. (Id. 10:4, 17–18.) Thus, even if counsel’s 25 advice was erroneous, as alleged by Defendant, he cannot show prejudice. He knew 26 that he was facing up to twenty years in custody and that the Court may sentence him 27 to a higher sentence than that suggested by his counsel. He indicated he still wanted 1 to plead guilty. Therefore, he cannot show that, but for counsel’s advice, he would 2 not have pled guilty and would have insisted on going to trial. 3 Finally, to the extent Defendant is arguing that his counsel “made no effort to 4 distinguish the irregularities in the coroner’s report,” such an argument would have 5 been useless because, as part of his plea agreement, Defendant admitted that the 6 fentanyl he helped supply to B.M.P. was the cause of B.M.P.’s death. (Plea 7 Agreement § II.B; Plea Colloquy Tr. 11:15–24.) See United States v. Ross, 511 F.3d 8 1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea 9 hearing carry a strong presumption of veracity in subsequent proceedings attacking 10 the plea.”); Blackledge, 431 U.S. at 74 (“Solemn declarations in open court carry a 11 strong presumption of verity.”). Thus, Defendant’s counsel, who had agreed to a 12 base offense level of 38 as part of the plea agreement, had no grounds to “distinguish 13 the irregularities in the coroner’s report.” 14 Defendant was facing a twenty-year mandatory minimum sentence if he went 15 to trial and the jury found that the fentanyl he helped B.M.P. obtain caused B.M.P.’s 16 death. Defendant made an informed decision to plead to a lesser offense with a 17 maximum sentence of twenty years and to admit as part of the factual basis that he 18 caused the death of his friend. This decision was not an unreasonable one. The fact 19 that there were other contributing factors to B.M.P.’s death may not have absolved 20 Defendant from culpability. See, e.g., Burrage v. United States, 571 U.S. 204, 211 21 (2014) ([I]f poison is administered to a man debilitated by multiple diseases, it is a 22 but-for cause of his death even if those diseases played a part in his demise, so long 23 as, without the incremental effect of the poison, he would have lived.”). At any rate, 24 Defendant fails to show that his counsel’s representation was constitutionally 25 deficient or that he was prejudiced as a result of any alleged problems in 26 representation. Hence, his claim for ineffective assistance of counsel must fail. 27 1 B. Waiver of Appeal 2 To the extent Defendant is arguing the Court incorrectly calculated his 3 guideline range or should have sentenced him differently, he waived his right to 4 collaterally attack or appeal these claims as part of his plea agreement. First, the 5 evidence supports that the waiver was knowingly and voluntarily made. He signed 6 a written agreement acknowledging the waiver. And then at the plea colloquy, the 7 Court reviewed the appellate waiver with Defendant and he agreed that, as part of his 8 plea agreement, he had given up the right to appeal or collaterally attack the sentence 9 “even if [he did not] like what ultimately happens at sentencing.” (Plea Colloquy Tr. 10 6:11–15.) This waiver was confirmed a third time after the Court had sentenced 11 Defendant to 151 months; the Court inquired of both counsel and Defendant whether 12 appeal had been waived and both agreed it had. (Sentencing Tr. 11:20–24.) 13 Second, the clear language of the waiver encompasses “all rights to appeal and 14 to collaterally attack every aspect of the conviction and sentence. This waiver 15 includes, but is not limited to, any argument that the statute of conviction or 16 Defendant’s prosecution is unconstitutional and any argument that the facts of this 17 case do not constitute the crimes charged.” (Plea Agreement § XI.) Thus, with the 18 exception of ineffective assistance of counsel, Defendant clearly waived his right to 19 appeal or collaterally attack his sentence on any other ground. 20 C. Failure to Raise at Sentencing Or on Appeal 21 To the extent Defendant is raising non-constitutional issues, e.g., that the Court 22 incorrectly calculated his guideline range, should have found him eligible for safety 23 valve, and should have varied downward, these issues are inappropriate for the Court 24 to consider by means of a § 2255 Motion. Section 2255 is not designed to allow a 25 defendant to circumvent appeal, particularly when his appellate rights have been 26 waived as part of the plea agreement. Defendant has not offered any cause for failing 27 to raise the issues earlier, nor does he demonstrate actual prejudice or claim that he 1 |/1s actually innocent. Hence, the Court find these claims were procedurally defaulted. 2 || See Braswell, 501 F.3d at 1149. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court DENIES Defendant’s Motion to Vacate, 5 ||Set Aside, or Correct Sentence under § 2255. (ECF No. 132.) The Clerk shall 6 || TERMINATE Defendant’s related motion. (ECF No. 133.) Further, the Clerk is 7 || directed to close Case No. 23-cv-01071. 8 9 kk 10 CERTIFICATE OF APPEALABILITY 11 A district court must issue or deny a certificate of appealability (“COA”) when 12 |/it enters a final order adverse to the § 2255 movant. “A COA may issue ‘only if the 13 ||applicant has made a substantial showing of the denial of a constitutional right.’” 14 || Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting 28 U.S.C. § 2253(c)). “At the 15 ||COA stage, the only question is whether the applicant has shown that ‘jurists of 16 ||reason could disagree with the district court’s resolution of his constitutional claims 17 |;or that jurists could conclude the issues presented are adequate to deserve 18 |}encouragement to proceed further.’” /d. (quoting Miller El v. Cockrell, 537 U.S. 322, 19 (2003)). 20 Defendant’s § 2255 Motion does not meet this standard. His arguments are 21 || without merit and his factual contentions are contradicted by the record before the 22 ||Court. Accordingly, the Court declines to issue a certificate of appealability in this 23 || action. 24 IT IS SO ORDERED. 25 26 ||DATED: September 1, 2023 ( if hig | Ly hak a United States District Judge 28