1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Crim. Case No. 3:15-cr-1201-BTM-1 Civ. Case. No. 3:19-cv-0554-BTM 12 v. 13 ORDER DENYING DEFENDANT

WILLIE DWAYNE MICKEY, WILLIE DWAYNE MICKEY’S 28

14

U.S.C. § 2255 MOTION AND

Defendant. 15 DENYING A CERTIFICATE OF

APPEALABILITY

16

17 [ECF Nos. 145, 147] 18 Before the Court is Defendant Willie Dwayne Mickey’s motion to vacate, set 19 aside, or correct his sentence pursuant to 28 U.S.C. § 2255 as well as a 20 supplemental § 2255 motion. (ECF Nos. 145, 147.) Defendant, proceeding pro 21 se, argues that his appointed trial counsel provided ineffective assistance by failing 22 to seek or otherwise provide Defendant with various discovery documents such 23 that he was unable to make an informed decision about whether to proceed to trial. 24 (ECF No. 145.) Defendant also argues that the two counts for which he was 25 convicted were multiplicitous and thereby violated his rights under the Fifth 26 Amendment. (ECF No. 147.) The Government opposes the relief requested by 27 Defendant. (ECF No. 148; see also ECF No. 157 (Defendant’s reply).) 28 1 to seek relevant discovery materials, including any Brady materials or grand jury 2 transcripts, (ECF No. 145, at 16-19), are conclusively contradicted by the record. 3 (See ECF No. 29 (co-defendant’s first motion to compel discovery); ECF No. 34 4 (Defendant’s notice of joinder to first motion); ECF No. 48 (co-defendant’s second 5 motion to compel); ECF No. 53 (Defendandt’s notice of joinder to second motion); 6 see also ECF No. 35 (Government’s response to first motion); ECF No. 49 7 (Government’s response to second motion); ECF No. 54 (minute order granting 8 both motions to compel).) Further, even assuming that Defendant’s double 9 jeopardy argument is not procedurally defaulted by his failure to raise it on direct 10 appeal, see United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003), it is 11 frivolous given that each count of sex trafficking by force, fraud or coercion in 12 violation of 18 U.S.C. §§ 1591(a) & (b)(1) for which he was convicted addressed 13 separate (albeit similar) conduct and victims over partially-overlapping intervals. 14 (See ECF No. 77 (second superseding indictment); ECF No. 102 (special verdict 15 form); ECF No. 131 (judgment).); See United States v. Schales, 546 F.3d 965, 16 978 (9th Cir. 2008) (“The Double Jeopardy Clause does not . . . prohibit the 17 government from prosecuting a defendant for multiple offenses in a single 18 prosecution.”); United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (“The 19 Fifth Amendment’s prohibition on double jeopardy protects against being punished 20 twice for a single criminal offense.”); United States v. Stewart, 420 F.3d 1007, 1012 21 (9th Cir. 2005) (“An indictment is multiplicitous when it charges multiple counts for 22 a single offense, producing two penalties for one crime and thus raising double 23 jeopardy questions.”). 24 As to his allegations that counsel failed to apprise him of relevant discovery 25 materials, “there are two components to an [ineffective assistance] inquiry, and 26 [Defendant] bears the burden of establishing both.” United States v. Quintero- 27 Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). “First,” Defendant must establish that 28 “the representation . . . f[e]ll ‘below an objective standard of reasonableness.’” Id. 1 (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Second, “he 2 must . . . establish that there is ‘a reasonable probability that, but for counsel’s 3 unprofessional errors, the result of the proceeding would have been different.’” Id. 4 (quoting Strickland, 466 U.S. at 694). Here, Defendant attests that his trial 5 “[c]ounsel never furnished [Defedant] with any ‘Brady’ material, police investigative 6 notes[,] FBI ‘302’s’[,] electronic discovery (incuding any emails, text messages, 7 audio, video, or chat-messages)[,] or Grand Jury Testimony of any witness it 8 intended to introduce at trial for impeachment purposes or for [Defendant] to test 9 the strength of the Government’s case against [him,]” and that had counsel done 10 so, Defendant “would have not proceeded to trial and would have entered a plea 11 of guilty.” (ECF No. 145, at 24-25.) Further, Defendant argues, without any 12 supporting attestations. other evidentiary support, or even further factual 13 development, that his trial counsel failed to “[c]ommunicate to [Defendant] the 14 intricacies of the [United States] Sentencing Guidelines, including credit for 15 acceptance of responsibility, any downward variance that could have been sought, 16 as well as other factors in mitigation of any sentence if a guilty plea were to be 17 entered.” (ECF No. 145, at 19; see also id. at 22-25). Even assuming that 18 Defendant could demonstrate that the discovery materials of which he complains 19 actually existed, were material to his prosecution or defense, were in his trial 20 counsel’s possession or control but not provided to Defendant, were not otherwise 21 known to Defendant, or that trial counsel’s failure to provide these materials (or his 22 analysis thereof) to Defendant was otherwise objectively unreasonable, or that his 23 trial counsel failed to advise Defendant of the aforementioned sentencing issues 24 and was therefore objectively unreasonable, however, Defendant has failed to 25 demonstrate prejudice resulting therefrom. 26 Here, Defendant does not rely upon a “phantom” plea bargain to 27 demonstrate prejudice. (See ECF No. 145, at 19 (but for counsel’s ineffective 28 assistance, Defendant “would not have proceeded to trial and would have plead 1 guilty, obtained credit for acceptance of responsibility, and moved the Court for 2 any downward variance that may have been available at sentencing” (emphasis 3 added)).) However, Mickey points to no discovery material that, had it been shown 4 to him, would have resulted in his pleading guilty. He purely speculates that if it 5 had been shown to him, he would have pled guilty. 6 Furthermore, the Defendant fails to produce or identify any evidence 7 demonstrating with a reasonable probability that, even if he had plead guilty, the 8 Court would have been inclined to grant him any adjustment for acceptance of 9 responsibility. See United States v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004) 10 (“To receive the two-point downward adjustment [for acceptance of responsibility 11 under U.S.S.G. § 3E1.1(a)], a defendant must at least show contrition or 12 remorse.”); see also U.S.S.G. § 3E1.1(b) (additional one-point downward 13 adjustment conditional on qualification for two-point adjustment under § 3E1.1(a)). 14 Indeed, Defendant’s decision to proceeded to trial is not dispositive of the grant or 15 denial of such an adjustment. See United States v. Innie, 7 F.3d 840, 848 (9th Cir. 16 1993) (“Although a district court may not punish a defendant for failing to 17 participate in fact-gathering at a presentence interview or for not pleading guilty, 18 the defendant must carry the burden of demonstrating the acceptance of 19 responsibility.”); U.S.S.G. § 3E1.1, cmt. 2 (“Conviction by trial . . . does not 20 automatically preclude a defendant from consideration for such a reduction.”); 21 U.S.S.G. § 3E1.1, cmt. 3 (“A defendant who enters a guilty plea is not entitled to 22 an adjustment under this section as a matter of right.”). Rather, the evidence of 23 record demonstrates that Defendant continued to dispute his guilt during 24 sentencing proceedings, (see ECF No. 136, at 18-19, 31-32 (Defendant continued 25 to dispute his guilt during sentencing hearing), and Defendant has failed to provide 26 or identify any evidence demonstrating his subsequent contrition or remorse for 27 28 1 his offenses or that he qualified for any other departures or variances. 2 Moreover, even assuming Defendant had demonstrated his entitlement to 3 an acceptance of responsibility adjustment, he has failed to demonstrate with 4 reasonable probability that such adjustment would have had any appreciable effect 5 on his sentence of 204 months of imprisonment. Defendant was convicted of 6 offenses subject to mandatory minimum sentences of 180 months. 18 U.S.C. § 7 1591(b)(1). Further, the presentence investigation report reflects Defendant’s total 8 offense level as 38 with five criminal history points (i.e., a criminal history category 9 of III), which resulted in a guideline imprisonment range of 292 to 365 months. 10 (ECF No. 106, at 9-15.) Even if Defendant had been granted a full three-point 11 reduction for acceptance of responsibility (i.e., a total offense level of 35), this 12 would have resulted in a guideline imprisonment range of 210 to 262 months.2 13 Nevertheless, the Court departed downward from these guideline ranges when it 14 sentenced Defendant to 204 months, finding that “a sentence of 17 years . . . 15 provide[s] a deterrence and fair punishment for the offense and promote[s] respect 16 for the law.”3 (See ECF No. 136, at 37-38.). That is, even without the benefit of 17

18 19 1 See ECF No. 136, at 31 (“I do apologize for, you know, this whole process, but I do maintain my innocence. I never forced anybody to do anything. And if anybody 20 did anything, it was because they was willing and they was adults making their 21 own choices and their own decisions, but I never forced anybody to do anything against their will.”). 22

23 2 Were Defendant granted a two-point reduction for acceptance of responsibility (i.e., a total offense level of 36), this would have resulted in a guideline 24 imprisonment range of 235 to 293 months. 25 3 (See ECF No. 136, at 38 (“The question is what is the minimal sentence that will 26 deter [Defendant], deter others, and not create sentencing disparities in the federal 27 system and also provide just punishment. The Court believes that a sentence of - - on both counts concurrently of 204 months is the sentence that will do that. It’s 28 1 an acceptance of responsibility adjustment, Defendant ultimately ended up 2 receiving a lower term of imprisonment than suggested by the sentencing 3 guidelines with the benefit of an acceptance of responsibility adjustment. Thus, 4 the actual sentence of imprisonment imposed by the Court already represents a 5 significant departure from the range recommended by the United States 6 Sentencing Guidelines. Defendant’s unsubstantiated assertions that he would 7 have plead guilty and sought an acceptance of responsibility adjustment, without 8 more, are insufficient to demonstrate prejudice.4 9 Based upon the foregoing, Defendant’s § 2255 motion and supplemental 10 motion (ECF Nos. 145, 147) are DENIED.5 The Court DENIES a Certificate of 11 Appealability to Defendant because he has not even raised a colorable claim in his 12 13 account the multiple counts. If Count 1 fails ultimately, I would impose a lesser 14 sentence, but I don’t know at this point how much less, but it would not be a moot 15 point. It may not be much less. Of course, it can’t be below 180. I won’t think about that now because it’s not an issue, but I think a sentence of 17 years sends 16 a message, and it's not overkill. It does provide a deterrence and fair punishment 17 for the offense and promote respect for the law.”).)

18 4 Defendant argues in his § 2255 motion, without any supporting attestations or 19 other evidentiary support, that his trial counsel failed to “[c]ommunicate to [Defendant] the intricacies of the [United States] Sentencing Guidelines, including 20 credit for acceptance of responsibility, any downward variance that could have 21 been sought, as well as other factors in mitigation of any sentence if a guilty plea were to be entered.” (ECF No. 145, at 19; see also id. at 22-25). 22

23 5Because “the record refutes [Defendant’s] factual allegations or otherwise precludes habeas relief, [the Court] is not required to hold an evidentiary hearing.” 24 Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007) (district court did not err in 25 denying evidentiary hearing where, “even with the benefit of an evidentiary hearing, [the defendant] could not develop a factual record that would entitle him 26 to habeas relief.”); 28 U.S.C. § 2255(b); see also Farrow v. United States, 580 F.2d 27 1339, 1360-61 (9th Cir. 1978) (“A petitioner is not entitled to a hearing where he presents no more than conclusory allegations, unsupported by facts and refuted 28 1 2255 motion. 2 IT IS SO ORDERED. 3 4 Dated: November 12, 2020 □□ 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28