United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before me on Defendant Casslyn Mae Welch's
Amended Motion to Vacate, Set Aside, or Correct Sentence,
filed April 11, 2017. [Doc. 1752]. 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.
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.
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
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
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.
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.
Under § 2255
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
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.
Standard for Ineffective Assistance of Counsel
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).
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
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