United States District Court, D. Montana, Great Falls Division
ORDER ADOPTING MAGISTRATE'S FINDINGS AND
MORRIS, UNITED STATES DISTRICT COURT JUDGE.
Terry Michael Croff (“Croff”) filed a motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence. (See Doc. 66.) His motion originally brought
two claims, each alleging ineffective assistance of counsel.
(See Doc. 67.) Croff first claimed that his counsel failed to
inform him that he must keep discovery provided by the
Government confidential and that failure resulted in him not
receiving credit for acceptance of responsibility at
sentencing. (Doc. 67 at 8-10.) Croff then claimed his
counsel's failure to advise him about what he needed to
tell the Government in exchange for a plea agreement resulted
in Croff receiving a less favorable plea agreement.
(Id. at 16-17.)
Judge John Johnston issued Findings and Recommendations in
which he recommended finding that Croff had waived his second
claim while the first should be denied. (See Doc. 98.) Croff
timely filed an objection, taking issue only with Judge
Johnston's recommendation that the motion should be
denied. (See Doc. 101.) Croff does not dispute that he waived
one of his claims.
and Recommendations Standard of Review
Court reviews de novo Findings and Recommendations to which a
party timely objected. 28 U.S.C. § 636(b)(1). The Court
reviews for clear error the portions of the Findings and
Recommendations to which a party did not specifically object.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where a
party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a
re-argument of the same arguments set forth in the original
response, however, the Court will review for clear error the
applicable portions of the Findings and Recommendations.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont.
Feb. 21, 2014) (internal citations omitted).
movant must satisfy two criteria to prevail on an ineffective
assistance of counsel claim. See Strickland v.
Washington, 466 U.S. 668 (1984). First, the movant must
prove that their counsel's performance fell below an
objective standard of reasonableness. See Id. at
687-88. Second, the movant must “show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
Supreme Court has recognized a limited exception to the
second prong of the Strickland analysis. See Mickens v.
Taylor, 553 U.S. 162, 166 (2002). A defendant need not
show prejudice if the ineffective assistance claim alleges a
conflict of interest. Rather, the defendant need only show
“that his counsel actively represented conflicting
interests” and “that this adversely affected his
counsel's performance.” Foote v. Del Papa,
492 F.3d 1026, 1030 (9th Cir. 2007). The movant falls within
this exception if he or she shows “that some plausible
alternative defense strategy or tactic might have been
pursued but was not and that the alternative defense was
inherently in conflict with or not undertaken due to the
attorney's other loyalties or interests.” Hovey
v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006) (quoting
United States v. Wells, 394 F.3d 725, 733 (9th Cir.
appears to object to three portions of Judge Johnston's
Findings and Recommendations. Croff objects to Judge
Johnston's application of Strickland and failure to apply
the conflicts of interest exception. (See Doc. 101 at 3-8,
10.) He also objects to Judge Johnston's Finding that
Croff was subject to a ten-year mandatory minimum sentence
due to his own decisions, not his counsel's. (See
Id. at 8-10.) Third, Croff objects to Judge
Johnston's finding that a certificate of appealability
does not prove warranted. (See Id. at 11.) None of
these objections provide a basis for rejecting Judge
Johnston's Findings and Recommendations.
first objection stems from Judge Johnston's application
of Strickland's two-part test for showing ineffective
assistance of counsel. Judge Johnston concluded that Croff
had satisfied the first prong, but had not satisfied the
prejudice prong. (See Doc. 98 at 11, 13.) Croff's
attorney failed to heed warnings that she could not provide
Croff with discovery marked sensitive unless she was present
with Croff. (Id. at 10-11.) Counsel's error
violated the first prong of Strickland according to Judge
Johnston. (Id.) Croff failed to satisfy the
prejudice prong of Strickland, however, because Croff's
sharing of the discovery inappropriately provided to him with
other people did not affect his sentence. (Id.at
13.) Rather, Croff's own actions resulted in his
receiving the sentence he received.
claims that Judge Johnston should have applied a limited
exception to the prejudice prong as outlined in Cuyler v.
Sullivan, 446 U.S. 335 (1980). This exception provides a
lower bar for showing ineffective assistance of counsel.
Croff need only show “that some plausible alternative
defense strategy or tactic might have been pursued but was
not and that the alternative defense was inherently in
conflict with or not undertaken due to the attorney's
other loyalties or interests.” Hovey v. Ayers,
458 F.3d 892, 908 (9th Cir. 2006) (quoting United States
v. Wells, 394 F.3d 725, 733 (9th Cir. 2005)). Reviewing
de novo, the Court finds that Judge Johnston applied the
correct standard for evaluating Croff's claims.
second objection relates to the role his own actions played
in the sentence that Croff received. Judge Johnston concluded
that Croff was subject to a ten-year mandatory minimum
sentence because of his own actions, not his counsel's.
(Doc. 98 at 11.) Croff claims that his attorney's actions
that violated an objective reasonableness standard
“permate all actions that followed.” (Doc. 101
at 8.) But, as the Government explains in its Response to
Croff's objections, “Croff's denial of
acceptance of responsibility is based on matters other than
what he did with the discovery” that his counsel
improperly provided to him without her supervision. (Doc. 104
at 4-5.) For the reasons stated by the Government in their
response and by Judge Johnston, Croff's objection is
third objection amounts to the conclusory statement that
“reasonable jurists could disagree on whether
counsel's actions arose to an actual conflict of
interest, and therefore, whether a presumption of prejudice