Jose Perez v. United States ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE JESUS PEREZ, a.k.a. Jose Jesus, Jr., No. 19-55548
a.k.a. Jose J. Perez
D.C. Nos. 5:17-cv-02436-VAP
Petitioner-Appellant, 5:13-cr-00087-VAP-1
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted September 14, 2021
Pasadena, California
Before: GOULD, BERZON, and COLLINS, Circuit Judges.
Jose Jesus Perez appeals the district court’s denial, without an evidentiary
hearing, of his 28 U.S.C. § 2255 motion, arguing that his counsel rendered
ineffective assistance of counsel during unsuccessful plea negotiations. Perez
asserts that, as a result of that ineffective assistance, he proceeded to a jury trial at
which he was convicted of three counts of deprivation of civil rights under color of
law in violation of 18 U.S.C. § 242. Reviewing the district court’s denial of a
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
§ 2255 motion de novo, United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045
(9th Cir. 2010), and its denial of an evidentiary hearing for abuse of discretion,
Stewart v. Cate, 757 F.3d 929, 934 (9th Cir. 2014), we affirm.
I
Because the district court did not hold an evidentiary hearing, we take as
true the factual allegations in Perez’s § 2255 motion and in his declaration in
support of that motion. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.
1994); cf. Rule 2(b)(2), § 2255 Rules (requiring that a § 2255 motion “state the
facts supporting each ground”). We consider those allegations together with “the
files and records of the case” to determine whether Perez has established the
elements of his claim of ineffective assistance of counsel during the plea
bargaining process. See 28 U.S.C. § 2255(b). To prevail on that claim, Perez had
to state sufficient facts to show: (1) “that counsel’s performance was deficient,”
and (2) “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Perez failed to make this showing.
A
Perez contends that his counsel failed adequately to explain the terms of the
Government’s plea offer. However, Perez’s declaration acknowledges that his
counsel told him about the key provision of the offer—that it provided for a 10-
year sentence, which was well below the statutory maximum of life imprisonment.
2
Perez has not identified any other material term of the offer that should have been
communicated to him but was not, nor has he pleaded any facts to show that any
such omitted details would have caused him to accept the offer. Hill v. Lockhart,
474 U.S. 52, 59 (1985). Beyond that, Perez notes only that his counsel did not
provide him with a written copy of the plea agreement. Mere failure to provide the
actual written plea agreement, without more, does not establish ineffective
assistance. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1061 (9th Cir.
2000).
Perez also asserts that he directed his counsel to present a counteroffer in
which he would agree to plead guilty in exchange for a five-year sentence.
Assuming that his counsel failed to communicate that counteroffer, we conclude
that Perez has not established prejudice. His motion provides no facts to support a
plausible inference that the Government would have accepted a five-year sentence.
B
Perez further contends that, in two respects, his counsel failed to provide
him with “the information he needed to make an informed decision whether to
accept” the Government’s plea offer. Both of these contentions fail.
First, Perez asserts that his counsel “never explained the significance of
[Perez’s] status as a uniformed, armed, law enforcement officer, and how that
reality could result in an increase in [the] statutory maximum punishment for the
3
offenses from 10 years to life.” But the premise of Perez’s argument—that his
status as an officer could increase the statutory maximum punishment—is
incorrect. Rather, the factors that could have increased—and ultimately did
increase—his maximum sentence to life imprisonment were the alleged
“aggravated sexual abuse” of both victims and the alleged “kidnapping” or
“attempt to kidnap” one of those victims. See 18 U.S.C. § 242. There was no
obligation for Perez’s counsel to tell Perez that his “status as a uniformed, armed,
law enforcement officer . . . could result in an increase in [the] statutory maximum
punishment” because such a statement would not have been accurate. Moreover,
Perez was provided with a copy of the indictment, and he was repeatedly advised
on the record, prior to turning down the plea offer, that his § 242 charges were
based on alleged sexual abuse he committed using his authority as an officer, and
that he faced a life sentence on each count. Even assuming counsel did not
specifically address these matters with Perez, Perez has failed to show prejudice in
light of these on-the-record statements.
Second, Perez asserts that his counsel made an “objectively unreasonable
assessment of the strength of the Government’s case.” Perez alleges that his
counsel told him that he had a “winnable case” and that counsel “did not think that
the Government could prove any set of facts qualifying [Perez] for the higher
statutory maximum.” Where, as here, the defendant knew the material terms of the
4
plea offer but asserts that counsel failed to accurately assess the strength and
weaknesses of the case, we require the defendant to “demonstrate gross error on
the part of counsel,” meaning that “the advice he received was so incorrect and so
insufficient that it undermined his ability to make an intelligent decision about
whether to accept the plea offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir.
2002) (simplified). Thus, absent a showing that counsel’s “defense strategy and
presumably sincere prediction” were outside the wide range of reasonable
professional judgment, a defendant cannot rely on a self-serving assertion, “made
years later,” that with different advice, he would have accepted the plea offer. Id.
at 881. “If the rule were otherwise, every rejection of a plea offer, viewed perhaps
with more clarity in the light of an unfavorable verdict, could be relitigated upon
the defendant’s later claim that had his counsel better advised him, he would have
accepted the plea offer.” Id.Applying these standards, we conclude that Perez failed to present sufficient
facts to establish that his counsel’s assessment of the case, at the time the plea offer
was rejected, was outside the range of reasonable professional judgment. Although
Perez now paints the evidence against him as overwhelming, a reasonable defense
counsel could conclude that the case was triable in that it largely hinged on the
credibility of the two victims, both of whom were prostitutes with potentially
significant credibility issues. The fact that the district court subsequently granted
5
an in limine motion by the Government excluding some key impeachment material
does not show that counsel’s earlier assessment was unreasonable. Indeed, in
granting that motion, the district court itself acknowledged that it was a “close
call.” “Trial counsel was not constitutionally defective because he lacked a crystal
ball.” Turner, 281 F.3d at 881.1
II
For these reasons, we conclude that, disregarding the competing statements
of Perez’s counsel that the Government presented in opposition to the § 2555
motion, Perez’s “allegations, viewed against the record, . . . do not state a claim for
relief.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). The district
court therefore properly denied the § 2255 motion without holding an evidentiary
hearing.
AFFIRMED.
1
Even assuming that the district court should have considered the additional
declaration from Perez’s ex-wife, Gabriela Burrell, which was submitted with his
reply brief opposing dismissal, it would not alter our conclusions. Assuming that
the comments of counsel that Burrell recounts during her “first visit” to his office
occurred before the plea offer was rejected, the comments merely reiterate Perez’s
allegation that counsel then viewed the case as a triable credibility contest in which
there was substantial impeachment material. Burrell’s additional vague contention
that counsel was difficult to reach weeks later, “[a]s the matter progressed,” does
not establish that counsel’s assessment of the case at the time the plea was rejected
was outside the range of reasonable professional judgment.
6