United States District Court, D. Montana, Billings Division
L. Christensen, Chief Judge
January 25, 2018, Defendant/Movant Scott pled guilty to being
a felon in possession of a firearm. On May 19, 2018, he was
sentenced to serve 60 months in prison, to be followed by
three years' supervised release. Less than a year later,
on February 11, 2019, he moved to vacate, set aside, or
correct the sentence under 28 U.S.C. § 2255.
See 28 U.S.C. § 2255(f)(1).
December 9, 2019, counsel filed an amended motion (Doc. 61).
The amended motion "entirely supersede[s]"
Scott's original motion, filed pro se. See Order
(Doc. 50) at 2 ¶ 3.
makes two claims for relief. First, he alleges that he
"told counsel that I wished to appeal. Counsel advised
that he would file an appeal on my behalf, however counsel
refused and/or failed to do so." See Am. §
2255 Mot. (Doc. 61) at 7, 7-9 (quoting Mot. § 2255 (Doc.
48) at 3). Second, Scott alleges that trial counsel provided
ineffective assistance in the plea bargaining phase of the
case. See Id. at 9-10.
the United States is required to respond, the Court must
determine whether "the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b); see
also Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts. A petitioner "who
is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review."
Calderon v. United States Dist. Court, 98 F.3d 1102,
1109 (9th Cir. 1996) ("Nicolas")
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases). But the Court should "eliminate the
burden that would be placed on the respondent by ordering an
unnecessary answer." Advisory Committee Note (1976),
Rule 4, Rules Governing § 2254 Cases, cited in
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2255 Proceedings.
second claim fails to state a viable ground for relief. He
alleges that, due to a significant breakdown in communication
between himself and counsel, he was unable to make an
informed decision about the plea agreement. He does not
allege that he would have done anything differently if he had
been better informed. Instead, he argues that his claim is
subject neither to harmless error analysis nor the usual
requirement, under Strickland v. Washington, 466
U.S. 668, 694 (1984), that he must show a reasonable
probability of a more favorable outcome had counsel performed
reasonably. He cites United States v.
Gonzalez-Lopez, 548 U.S. 140, 150 (2006). See
Am. § 2255 Mot. (Doc. 61) at 10.
Supreme Court's opinion in Gonzalez leads to the
conclusion that Strickland applies to Scott's
claim. The question in that case was "whether a trial
court's erroneous deprivation of a criminal
defendant's choice of counsel entitles him to a reversal
of his conviction." Gonzalez, 548 U.S. at 142.
The Eighth Circuit held it did. The United States petitioned
for certiorari, arguing that Gonzalez must show his
"counsel of choice would have pursued a different
strategy that would have created a 'reasonable
probability that... the result of the proceedings would have
been different.'" Id. at 144-45 (quoting
Strickland, 466 U.S. at 694) (ellipsis in
the Eighth Circuit, the Supreme Court emphasized that
Gonzalez did not claim he was deprived of his Sixth Amendment
right to effective counsel. That right, the Court
said, derived "from the purpose of ensuring a fair
trial." Counsel "cannot be 'ineffective'
unless his mistakes have harmed the defense (or, at least, it
is reasonably likely that they have)."
Gonzalez, 548 U.S. at XA6-A1.
claimed he was deprived of his Sixth Amendment right to
counsel of his choice, a right that "has never been
derived from the Sixth Amendment's purpose of ensuring a
fair trial." Gonzalez, 548 U.S. at 147. That
aspect of the Sixth Amendment right to counsel, the Court
explained, "commands, not that a trial be fair, but that
a particular guarantee of fairness be provided-to wit, that
the accused be defended by the counsel he believes to be
best." Id. at 146. Gonzalez had only to show he
was wrongly denied counsel of his choice, and the Sixth
Amendment violation was established. "Deprivation of the
right is 'complete' when the defendant is erroneously
prevented from being represented by the lawyer he wants,
regardless of the quality of the representation he
received." Id. at 148.
Gonzalez, Scott does not claim he was deprived of counsel of
his choice. He claims he was deprived of effective counsel.
"[T]the requirement of showing prejudice in
ineffectiveness claims stems from the very definition of the
right at issue; it is not a matter of showing that the
violation was harmless, but of showing that a violation of
the right to effective representation
occurred.'''' Id. at 150 (emphasis
in Gonzalez). In other words, Scott cannot state a
claim for violation of the Sixth Amendment right to effective
counsel unless he shows a reasonable probability that, but
for counsel's performance, one of two things would have
happened: either he would have achieved a more favorable plea
bargain, or he would have chosen to stand trial.
on language from Gonzalez, Scott argues that he
cannot be expected to make this showing, because "[m]any
counseled decisions, including those involving plea bargains
... do not even concern the conduct of the trial at
all," so that "[h]armless-error analysis ... would
be a speculative inquiry into what might have occurred in an
alternate universe." Am. § 2255 Mot. (Doc. 61) at
10 (quoting Gonzalez, 548 U.S. at 150) (ellipses
added). But the Gonzalez Court did not use the
phrase "alternate universe" lightly. Its point was
that depriving a defendant of counsel of his choice alters
every single thing about a case:
Different attorneys will pursue different strategies with
regard to investigation and discovery, development of the
theory of defense, selection of the jury, presentation of the
witnesses, and style of witness examination and jury
argument. And the choice of attorney will affect whether and
on what terms the defendant cooperates with the prosecution,
plea bargains, or decides instead to go to trial. In light of
these myriad aspects of representation, the erroneous denial
of counsel bears directly on the framework within which the
trial proceeds-or indeed on whether it proceeds at all. It is
impossible to know what different choices the rejected
counsel would have made, and then to quantify the impact of
those different choices on the outcome of the proceedings.
Many counseled decisions, including those involving plea
bargains and cooperation with the government, do not even
concern the conduct of the trial at all. Harmless-error
analysis in such a context would be a speculative inquiry
into what might have occurred in an alternate universe.
Gonzalez, 548 U.S. at 150 (internal quotation marks
and citation omitted).
contrast, under Strickland, "if and when
counsel's ineffectiveness 'pervades' a trial, it
does so (to the extent we can detect it) through identifiable
mistakes. We can assess how those mistakes affected the
outcome." Gonzalez, 548 U.S. at 150-51. See
also Hill v. Lockhart,474 U.S. 52, 59-60 (1985)
(applying Strickland to claim of ...