United States v. Patrick Laverdure, Jr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-35466
Plaintiff-Appellee, D.C. Nos. 4:16-cv-00049-BMM
4:11-cr-00060-BMM-1
v.
PATRICK JEDIDYA LAVERDURE, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted May 7, 2020
Portland, Oregon
Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,** District
Judge.
After Patrick Laverdure confessed to FBI agents that he sexually abused his
nieces, M.S. and S.S., he was convicted of aggravated sexual abuse in violation of
18 U.S.C. § 2241(c) (Count 1), sexual abuse in violation of 18 U.S.C. § 2242(2)(B)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
(Count 2), and abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) (Count
3).1 On direct appeal, the conviction on Count 2 was reversed and the other two
convictions affirmed. United States v. Laverdure, 507 F. App’x 726, 728 (9th Cir.
2013). After Laverdure was resentenced, he appealed again; we affirmed his
sentence but vacated a condition of supervised release. United States v. Laverdure,
609 F. App’x 417, 418 (9th Cir. 2015).
Laverdure then filed a 28 U.S.C. § 2255 motion asserting seven claims for
relief. The district court denied the motion but issued a certificate of appealability
(“COA”) on three claims asserting ineffective assistance of counsel. On appeal,
Laverdure pursues only two of those claims. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253 and affirm.
1. The presentence report contained a statement by Laverdure’s mother
that he was born with fetal alcohol syndrome (“FAS”). Trial counsel cited
Laverdure’s purported FAS as a mitigating factor at sentencing, and we later held
that Laverdure’s sentence was not substantively unreasonable because of the alleged
syndrome. Laverdure, 609 F. App’x at 417. In his § 2255 motion, Laverdure now
1
Laverdure is Native American, and the offenses were committed on the Fort
Peck Indian Reservation. See 18 U.S.C. § 1153.
2
contends that his lawyer was ineffective for failing to investigate before trial whether
Laverdure in fact had FAS and whether it affected his confession.2
Neither Laverdure’s § 2255 motion nor his supporting brief below contend
that he told trial counsel that he was born with FAS; nor did the motion assert that
any debilitating condition should have been apparent to counsel. See Strickland v.
Washington, 466 U.S. 668, 691 (1984). Indeed, the record suggests the contrary:
Laverdure held a steady job for several years before his conviction and told the
probation officer who prepared the presentence report that he had no medical
problems. Laverdure testified at trial that he was of average intelligence, willingly
spoke with the FBI agents, and voluntarily confessed. On this record, the district
court did not err in denying relief. Trial counsel’s “duty to investigate and prepare
a defense is not limitless,” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001)
(citation omitted), and Laverdure’s § 2255 motion does not plausibly allege that trial
counsel’s performance was unreasonable under the circumstances, see Kimmelman
v. Morrison, 477 U.S. 365, 384 (1986).3
2
Although Laverdure’s § 2255 motion claimed that his confession was coerced,
the district court did not issue a COA for that procedurally defaulted claim, and
Laverdure does not expressly pursue it on appeal.
3
The district court denied Laverdure’s motion for funds for a psychological
expert, stating that it would await the § 2255 motion before ruling on the request.
The district court did not expressly revisit the issue when denying Laverdure’s
§ 2255 motion. But even assuming that an evaluation would show that Laverdure
3
2. Laverdure also claims that trial counsel was ineffective for failing to
contact his sister, who purportedly would have testified that he never babysat his
nieces. But, Laverdure testified at trial that he did watch M.S. and S.S., and he
concedes that the record is “silent on this potential testimony” from his sister.
Without any “evidence that this witness would have provided helpful testimony for
the defense,” Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000), Laverdure’s “claim
of prejudice amounts to mere speculation,” Hurles v. Ryan, 752 F.3d 768, 782 (9th
Cir. 2014) (quoting Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981)).4
3. “A district court must grant a federal habeas petitioner’s motion for an
evidentiary hearing ‘unless the motion and the files and records of the case
conclusively show that [he] is entitled to no relief.’” United States v. Rodrigues, 347
F.3d 818, 824 (9th Cir. 2003) (quoting 28 U.S.C. § 2255(b)). But, even under this
“fairly lenient burden,” a petitioner seeking an evidentiary hearing “is nonetheless
was born with FAS, it would not establish whether trial counsel was deficient in not
investigating Laverdure’s medical history.
4
For the first time on appeal, Laverdure raises a similar claim as to counsel’s
failure to contact his mother. He also argued for the first time in his reply brief
below that trial counsel was ineffective for failing to investigate whether M.S.
wanted to recant. We decline to address these issues. See Maciel v. Cate, 731 F.3d
928, 932 (9th Cir. 2013) (standard for expanding COA); United States v. Ware, 416
F.3d 1118, 1121 n.2 (9th Cir. 2005) (declining to address arguments not properly
presented to district court).
4
required to allege specific facts which, if true, would entitle him to relief.” Id.
(cleaned up); see also United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004).
The district court did not abuse its discretion in determining that Laverdure
failed to satisfy this burden. See Rodrigues, 347 F.3d at 823 (noting standard of
review). Laverdure’s bare bones § 2255 motion and the accompanying
memorandum do not allege that he told trial counsel about his alleged FAS or that
trial counsel was aware of any facts that put him on notice to investigate whether
Laverdure suffered from this particular condition. As to trial counsel’s alleged
failure to call Laverdure’s sister as a witness, Laverdure’s trial testimony contradicts
his sister’s purported testimony, and he frankly acknowledges that the record is
“silent” regarding what she might say. See id. at 824 (requiring that a § 2255
petitioner “do more than . . . baldly assert” ineffective assistance).
AFFIRMED.
5
FILED
United States v. Laverdure, No. 19-35466
MAY 19 2020
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would reverse the denial of Patrick Laverdure’s post-conviction motion
under 28 U.S.C. § 2255 and remand for an evidentiary hearing.
A district court may deny a § 2255 motion without an evidentiary hearing
only if “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). In other words, to justify
dismissal without holding an evidentiary hearing, the district court must find that
the petitioner’s allegations “either do not state a claim for relief or are so palpably
incredible or patently frivolous as to warrant summary dismissal.” United States v.
Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (per curiam). Accepting Laverdure’s
allegations as true, as we must at this stage of the proceeding, see United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003), I would hold that he has stated a
potentially meritorious claim for ineffective assistance of trial counsel.
As to the deficient performance prong of the claim, Laverdure plausibly
alleges that his counsel rendered ineffective assistance by failing to investigate the
factual and legal basis for filing a motion to suppress his confession. He alleges that
he suffers from cognitive deficiencies due to Fetal Alcohol Syndrome Disorder
(FASD), a condition that the psychological literature indicates can leave individuals
vulnerable to coercive interrogation tactics. He also alleges that the FBI agent who
Page 2 of 5
elicited his confession deployed many of the same coercive tactics that we have
previously held can lead to involuntary confessions when used against individuals
with cognitive deficiencies. See United States v. Preston, 751 F.3d 1008, 1026–28
(9th Cir. 2014) (en banc). For example, the FBI agent allegedly (1) pressured
Laverdure to change his answers; (2) asked Laverdure to choose between two
alternative accounts of the crime, both of which portrayed him in a guilty light;
(3) told Laverdure he would receive a more lenient sentence if he confessed; and
(4) promised to keep his confession private. Laverdure alleges that, as a result of his
FASD, he was confused and intimidated by the FBI agent, believed the agent’s false
assurances, and felt compelled to tell the agent what he thought the agent wanted to
hear.
These allegations are neither “palpably incredible” nor “patently frivolous.”
Burrows, 872 F.2d at 917. The presentence report confirms that Laverdure has
FASD, and his testimony at trial is consistent with the allegations in his § 2255
motion. For instance, during his testimony, he mentioned a phobia of authority
figures, expressed remarkable naivete about the consequences of his confession, and
readily agreed with the prosecutor’s statements during cross-examination, even
when he lacked personal knowledge to do so. The record also supports the
plausibility of Laverdure’s account of the interrogation. Laverdure testified that he
confessed because he thought he would receive a lighter sentence if the FBI sent the
Page 3 of 5
case to tribal authorities, which is consistent with the allegation in his motion that
the FBI agent told Laverdure he could receive a more favorable outcome if he
confessed.
The district court rejected Laverdure’s ineffective assistance claim on the
ground that Laverdure did not allege that his attorney knew or should have known
about his FASD. In the district court’s view, unless Laverdure told his attorney that
he suffered from FASD, or exhibited obvious signs of cognitive impairment, his
attorney’s performance could not have been constitutionally deficient. But the law
requires more of an attorney. To provide effective assistance of counsel, an attorney
must conduct a reasonable investigation. Sanders v. Ratelle, 21 F.3d 1446, 1456–57
(9th Cir. 1994). That includes, at a minimum, asking a client probative questions to
elicit potentially relevant information and to discover possible defenses. Without an
evidentiary hearing, we cannot know whether Laverdure’s lawyer fulfilled this
fundamental duty. See Turner v. Calderon, 281 F.3d 851, 895 (9th Cir. 2002). The
record does not indicate what investigation, if any, his lawyer conducted regarding
the details of the interrogation, Laverdure’s ability to comprehend the consequences
of his confession, or the value of pursuing a psychological evaluation. And while it
is possible that Laverdure’s lawyer would not have discovered Laverdure’s FASD
even if he had asked probing questions, the converse seems just as likely. During a
routine interview, the author of the presentence report was able to ascertain not only
Page 4 of 5
that Laverdure suffers from FASD, but also that he received special education for
learning disabilities associated with the disorder. Thus, depending on the
investigation Laverdure’s lawyer conducted, his performance may well have been
constitutionally deficient.
As to the prejudice prong of Laverdure’s ineffective assistance claim,
Laverdure plausibly alleges “a reasonable probability” that the outcome of his trial
would have been different had his counsel investigated the circumstances underlying
his confession. See Strickland v. Washington, 466 U.S. 668, 694 (1984). If
Laverdure’s statements to the FBI agent were involuntary, as he alleges, his
confession would have been inadmissible at trial. See, e.g., Preston, 751 F.3d at
1027–28. Accordingly, had his lawyer conducted a reasonable investigation and
filed a motion to suppress, Laverdure’s confession would not have been admitted—
and the government would have been left with a substantially weaker case.
Laverdure likely would not have taken the stand once his confession was excluded,
and the only evidence against him would have been the testimony of the two victims
(one of whom could not recall whether Laverdure had sexually abused her) and the
testimony of two women who claimed that Laverdure had sexually abused them in a
similar manner in the past. While a jury could have convicted Laverdure based on
that evidence, there is also a reasonable probability that the jury would have reached
a different result.
Page 5 of 5
In short, because “the motion and the files and records of the case” do not
“conclusively show that [Laverdure] is entitled to no relief,” 28 U.S.C. § 2255(b),
the district court should have afforded him an evidentiary hearing.