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United States v. Welch

United States District Court, D. New Mexico

November 6, 2017



          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS MATTER is before me on Defendant Casslyn Mae Welch's Amended Motion to Vacate, Set Aside, or Correct Sentence, filed April 11, 2017.[1] [Doc. 1752].[2] The United States responded on May 22, 2017. [Doc. 1754]. Welch did not file a reply, and the time for doing so has passed. The Honorable Judith C. Herrera, United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 1750]. Having considered the briefing, relevant portions of the underlying criminal record, and relevant authorities, and being otherwise fully advised in the premises, I recommend that the motion be denied and that case number 17-cv-0286 JCH be dismissed with prejudice.


         Welch was indicted on eleven counts relating to her participation in a carjacking and conspiracy that led to the killing of two people. [Docs. 24, 73, 83]. The charges rendered her eligible for the death penalty. Welch agreed to cooperate with the investigation and testify against her co-defendant, John Charles McCluskey, “who, based on all accounts, was the mastermind, shooter, and the most culpable of all the defendants.” [Doc. 1754] at 6. The government, in turn, submitted its recommendation to the Attorney General that it be authorized not to seek the death penalty against Welch; the government was so authorized. Id. at 7-8.

         Subsequently, on January 20, 2012, a plea agreement was entered. [Doc. 259]. By the terms of the plea agreement, Welch agreed to plead guilty to nine counts, carrying a maximum sentence of life imprisonment. Id. at 2-4. The government agreed to move to dismiss the remaining two counts, refrain from bringing additional charges, and move for a reduction in Welch's United States Sentencing Guidelines (“Guidelines”) base offense level. Id. at 6-7, 10. Welch's additional obligations as a cooperating defendant were specified in an addendum to the plea agreement. [Doc. 260]. She agreed to continue to provide information to the government as necessary and testify if called as a witness. Id. at 1-2. In the addendum, the government stated that it would consider moving for a downward departure from the applicable Guidelines sentencing range or statutory minimum, provided Welch continued to fulfill her obligations under the plea agreement and addendum. Id. at 2-3. Neither the agreement nor the addendum specified any particular sentence or range upon which the parties had agreed. Welch pleaded guilty at a change of plea hearing on January 20, 2012. See [Doc. 309].

         Welch's sentencing hearing took place on June 2, 2014. See [Doc. 1688]. In the months preceding the sentencing hearing, counsel had communicated about what sentence Welch would propose to the Court and what position the government would take as to Welch's proposed sentence. See [Doc. 1726] at 3-5. At the sentencing hearing, Welch's counsel advocated for a 20-year sentence (to run concurrently with the 20-year sentence she had received in her related case in state court in Arizona). See [Doc. 1688] at 98-105. Welch's counsel was apparently under the impression that the government would not oppose the 20-year request. Counsel for the government, however, stated at the sentencing hearing that the government did “not concur” with the 20-year request and would not make any sentencing recommendation, instead leaving it to the discretion of the Court. Welch's counsel believed that this position was inconsistent with the government's earlier representations. After further argument, the Court agreed to allow briefing on the issue so that Welch could be fully heard. See Id. at 106-126. The Court then sentenced Welch to a term of 40 years, or 480 months. Id. at 129.

         Welch's counsel subsequently filed a motion alleging that the government breached the plea agreement by violating the implied covenant of good faith and fair dealing, based on the government's representation at the sentencing hearing that it did not concur in Welch's request for a 20-year prison term. [Docs. 1678, 1680]. The Court denied the motion on October 15, 2014 [Doc. 1726] and entered a judgment the following day [Doc. 1727]. Welch appealed to the Tenth Circuit on the issue of the alleged breach of the plea agreement. [Doc. 1733]. The Tenth Circuit rejected Welch's arguments and affirmed the District Court. [Doc. 1746]; United States v. Welch, 638 F. App'x 674 (10th Cir. 2015). The Supreme Court denied her petition for a writ of certiorari. [Doc. 1748]. The instant case is her first motion under § 2255.

         Welch, proceeding pro se, now moves for relief pursuant to § 2255 on the basis of ineffective assistance of counsel. [Doc. 1752]. She contends that her attorneys did not properly advise her of the consequences of the plea agreement she entered. Id. at 5. She goes on to state, effectively, that her attorneys misled her into believing that if she signed the plea agreement and cooperated with the prosecution, she would receive a sentence of 20 years. Id. at 15-16. Her attorneys, Welch contends, told her to “sign the plea and all will be good” and to give the government “whatever it wants” without “making waves.” Id. In response, the government contends that Welch is simply arguing “a repackaged version of her appellate claim, which was rejected by the Tenth Circuit.” [Doc. 1754] at 1. The government points to numerous discrete instances in which Welch made clear that she did not, in fact, believe that a 20-year sentence was a certainty in exchange for her cooperation. Id. at 8-13. And even if Welch's counsel were deficient, the government concludes, she fails to demonstrate that she was prejudiced by any alleged deficiency. Id. at 15-16.

         Motions Under § 2255

         A petition under 28 U.S.C. § 2255(a) attacks the legality of a federal prisoner's detention. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         A litigant who appears pro se is entitled to a liberal construction of his allegations, though courts must apply the same legal standards applicable to filings drafted by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1999). However, courts are “not required to fashion [a pro se litigant's] arguments for him where his allegations are merely conclusory in nature and without supporting fact[s].” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall, 935 F.2d at 1110.

         Legal Standard for Ineffective Assistance of Counsel

         The test for making a claim of constitutionally ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must satisfy a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

466 U.S. at 687. Both showings must be made to satisfy the Strickland standard. Id. Courts need not address both prongs of the standard if the defendant makes an insufficient showing on one of the prongs. Id. at 697. In applying the two-part Strickland test, a court may address the performance and prejudice components in any order. Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005).

         Under the first prong, a defendant must demonstrate that his counsel's performance was deficient. The appropriate standard for attorney performance is that of reasonably effective assistance; the defendant must demonstrate that counsel's representation, considering all the circumstances, fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland, 466 U.S. at 687-88. For counsel's performance to be constitutionally ineffective, it must have been “completely unreasonable, not merely wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995)). In evaluating an attorney's performance, the court must be highly deferential:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Strickland, 466 U.S. at 689 (internal quotation marks omitted).

         In applying this test, the court must give considerable deference to an attorney's strategic decisions and “recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “Neither hindsight nor success is the measure” of whether counsel was effective, and “effective” is not synonymous with victorious or flawless. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994). Rather, to be considered ineffective assistance of counsel, “the representation must have been such as to ...

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