USA v. Moreno

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RONNIE MORENO,
Defendant.
Case No. 3:16-cr-00032-SLG
ORDER REGARDING 28 U.S.C. § 2255 MOTION
Before the Court at Docket 117 is Defendant Ronnie Moreno’s Amended
28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody and his memorandum in support of the amended motion. The
government opposed the motion at Docket 124. Mr. Moreno filed a reply at
Docket 125.
Mr. Moreno requested an evidentiary hearing.1 The Court finds that an
evidentiary hearing is not necessary to determine each of the claims decided in
this order because those claims are either foreclosed because “the files and
records of the case conclusively show that the prisoner is entitled to no relief” or
they are foreclosed as a matter of law.2 The Court will hear oral argument as to
1 Docket 117-1 at 33–34.
2 28 U.S.C. § 2255(b); see also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003)
(noting that an evidentiary hearing is not necessary if the “allegations, when viewed against
the record, do not state a claim for relief or are so palpably incredible or patently frivolous as
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whether an evidentiary hearing is necessary on one of the claims, as explained
further herein. Having considered each parties’ filings, the defendant’s exhibits,
and the record in this case, the Court now makes the following findings and
conclusions as to most of the § 2255 claims raised by Mr. Moreno.
I. Background
On April 4, 2016, the government filed a criminal complaint against Ronnie
Moreno.3 On April 13, 2016, Mr. Moreno waived a preliminary hearing and
waived indictment.4 On April 15, 2016, Mr. Moreno was charged by Information
with one count of Drug Conspiracy in violation of 21 U.S.C. § 846.5 On May 19,
2016, Mr. Moreno signed a written plea agreement, in which he agreed to plead
guilty to Drug Conspiracy. His plea agreement contained a waiver of appeal and
a waiver of most collateral attack rights.6 Approximately one month later, on June
to warrant summary dismissal.”).
3 Docket 1.
4 Docket 11; Docket 12.
5 Docket 14.
6 Docket 19 at 10. The waiver of collateral attack rights states:
The defendant agrees to waive all rights to collaterally attack the resulting
conviction and/or sentence—including forfeiture (if applicable) or terms or
conditions of probation (if applicable) or supervised release, and any fines or
restitution—the Court imposes. The only exceptions to this collateral attack
waiver are as follows: 1) any challenge to the conviction or sentence alleging
ineffective assistance of counsel—based on information not now known to the
defendant and which, in the exercise of reasonable diligence, could not be known
by the defendant at the time the Court imposes the sentence; and 2) a challenge to
the voluntariness of the defendant’s guilty plea.
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16, 2016, Mr. Moreno appeared in court and entered a guilty plea.7 At the time,
Mr. Moreno was represented by attorney Matthew Scoble. Prior to sentencing,
attorney Scoble was removed from the case and replaced with attorney D. Scott
Dattan.8 In February 2017, the Court sentenced Mr. Moreno to 120 months
imprisonment.9 Mr. Moreno appealed to the Ninth Circuit. In March 2018, the
Ninth Circuit dismissed the appeal because “Moreno waived his right to appeal
his conviction and sentence . . . [and o]ur independent review of the record . . .
discloses no arguable issue as to the validity of the waiver.”10
Mr. Moreno filed a timely 28 U.S.C. § 2255 motion11 and later filed the
instant amended § 2255 motion. The amended motion asserts eight grounds for
relief, several of which raise more than one independent ground for relief. The
claims are not a model of clarity (and appointed counsel did not seek to amend
the pro se claims raised by Mr. Moreno12), but they fall into three categories:
7 Docket 19 (plea agreement); Docket 22 (minute entry).
8 Docket 35 (minute entry); Docket 36 (sealed minute entry); Docket 38 (Notice of Attorney
Appearance).
9 Docket 71 (Judgment).
10 United States v. Moreno, 715 Fed. App’x 679, 679 (9th Cir. 2018).
11 Docket 95. The government does not contest that Mr. Moreno’s motion was timely filed.
Docket 124 at 2.
12 Habeas counsel signed the amended § 2255 motion, but it appears that the claims in the
motion were drafted by Mr. Moreno.
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claims related to a purported verbal plea agreement with the government for a
five-year sentence; claims related to the U.S.S.G. § 3B1.1 leadership role
enhancement; and claims related to the use of Mr. Moreno’s prior state court
convictions to calculate his criminal history score. The Court construes the
claims as follows:
Claim 1(a): Ineffective assistance of both plea and sentencing counsel for
failing “to object or otherwise challenge the government’s breach of the Oral
Promises made to me related to the Plea Agreement.”13
Claim 1(b): Ineffective assistance of sentencing counsel for failing to
“object to [the U.S. Probation Office’s] deliberate fabrication of facts in order to
recommend a leadership role” enhancement.14
Claim 1(c): Ineffective assistance of sentencing counsel for failing to
“object to [the U.S. Probation Office’s] . . . use of Alaska’s republican illegal,
unconstitutional prison for profit cases, that are non-qualifying for federal
enhancements” and for failing “to investigate and object at sentencing” to the
consideration of three of Mr. Moreno’s State of Alaska cases in determining his
criminal history score.15
13 Docket 117 at 4.
14 Docket 117 at 4.
15 Docket 117 at 4.
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Claim 2(a): Ineffective assistance of appellate counsel for failing to raise
on appeal the government’s “Breach of the Oral Promissory Plea Agreement.”16
Claim 2(b): Ineffective assistance of appellate counsel for failing to raise
on appeal the U.S. Probation Office’s “deliberate Fabrications of fact for a
leadership role” enhancement.17
Claim 2(c): Ineffective assistance of appellate counsel for failing to raise
on appeal the U.S. Probation Office’s “use of Alaska republican state illegal,
unconstitutional prison for profit cases” to calculate his criminal history score.18
Claim 3: Due process violations when the sentencing judge:
• “refused to hear about the Government’s breach of the [verbal] plea
agreement” and Mr. Moreno’s pro se objections regarding the breach
of agreement;19
• refused to address Mr. Moreno’s pro se objections to the U.S. Probation
Office’s recommendation for a leadership role enhancement;20
16 Docket 117 at 5. The Court construes Mr. Moreno’s use of the phrase “Alaska republican
state illegal, unconstitutional prison for profit cases” to be a reference to the three disputed
Alaska state court convictions.
17 Docket 117 at 5.
18 Docket 117 at 5.
19 Docket 117 at 7.
20 Docket 117 at 7.
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• used “Alaska illegal unconstitutional prison for profit case which could
not be used to enhance movant’s sentence” and refused to address Mr.
Moreno’s pro se objections to the use of his three State of Alaska cases
to calculate his criminal history score.21
Claim 4(a) and Claim 5: Actual innocence as to State of Alaska case
3AN-99-8227cr (sexual abuse of a minor), which means that state conviction was
obtained in violation of the Eighth Amendment and could not be used to calculate
his criminal history score for federal sentencing.22
Claim 4(b): The post-conviction claims related to State of Alaska case
3AN-99-8227cr remained pending at the time of federal sentencing, and thus that
state case could not be used to calculate Mr. Moreno’s criminal history score.23
Claim 6: Actual innocence as to State of Alaska case 3AN-14-11508cr
(transportation of marijuana), and thus that state conviction could not be used to
calculate his criminal history score for federal sentencing.24
Claim 7: Actual innocence as to State of Alaska case 3AN-113-4140cr
(disorderly conduct) because that conviction was obtained in violation of the Fifth
21 Docket 117 at 7.
22 Docket 117 at 8, 12.
23 Docket 117 at 8.
24 Docket 117 at 12.
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Amendment “and other Constitutional rights,” and thus that state conviction could
not be used to calculate his criminal history score for federal sentencing.25
Claim 8: Ineffective assistance of plea counsel for failure “to investigate
the charges and movant’s criminal history and properly advise movant prior to
his plea.”26
II. Legal standards
Claims 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), and 8 are based on alleged
ineffective assistance of counsel. In order to succeed on an ineffective
assistance of counsel claim, Mr. Moreno must satisfy the two-pronged test set
forth in Strickland v. Washington, which requires him to show both deficient
performance of counsel and resulting prejudice.27 Deficient performance requires
a showing that trial counsel's representation “fell below an objective standard of
reasonableness” as measured by prevailing professional norms.28 There is a
“strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.”29 This standard applies even when the
25 Docket 117 at 13.
26 Docket 117 at 14.
27 466 U.S. 668, 687 (1984).
28 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
29 Strickland, 466 U.S. at 689.
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ineffective assistance claims arise out of the guilty plea process.30 To show
prejudice, Mr. Moreno must show that “there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.”31
Claims of ineffective assistance of appellate counsel are reviewed
according to the standard set forth in Strickland.32 To be constitutionally effective,
“counsel need not appeal every possible question of law.”33 A failure to raise
untenable issues on appeal does not fall below the Strickland standard.34
Mr. Moreno carries the burden of proving he is entitled to relief.35
III. Waiver of § 2255 claims
As a preliminary matter, Mr. Moreno’s plea agreement includes a provision
waiving his right to collaterally challenge his conviction and sentence in a § 2255
motion, with the exception of ineffective assistance of counsel or voluntariness
of the plea claims.36 Claims 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), and 8 fall within the
30 Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).
31 Id. at 59.
32 Turner v. Calderon, 281 F.3d 851, 871 (9th Cir. 2002).
33 Id. (citations omitted).
34 Feathersone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991).
35 See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
36 Docket 19 at 10.
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ineffective assistance exception. None of the claims addressed in this order
assert that his guilty plea was involuntary. Mr. Moreno has waived all other §
2255 claims, and the Court finds that there is no arguable issue specific as to the
validity of this waiver.37 Accordingly, the Court does not determine whether the
waived claims—Claims 3, 4(a), 4(b), 5, 6, and 7—are viable. Instead, relief is
denied as to each of these claims because they were all validly waived.
IV. The purported verbal plea agreement
Claim 1(a) relates to Mr. Moreno’s assertion that both his plea and
sentencing counsel were ineffective for not alerting the Court that the government
had breached a verbal plea agreement that it would recommend a five-year
sentence. On the record before the Court, it is not possible to determine whether
an evidentiary hearing on Claim 1(a) is warranted. On the one hand, this claim
is based on purported conversations between Mr. Moreno and his counsel that
occurred outside of the record, which supports holding an evidentiary hearing.38
On the other hand, even if a defendant’s “present allegations about his
37 Cf. United States v. Moreno, 715 Fed. App’x 679, 679 (2018) (determining that there was no
arguable issue as to the validity of Mr. Moreno’s appellate waiver). However, if Mr. Moreno
prevails on his claims related to the breach of an oral plea agreement, see infra, then the
appellate waiver would not be enforceable as the entire plea agreement would be invalidated.
United States v. Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir. 2016).
38 See Reed v. United States, 441 F.2d 569, 572 (9th Cir. 1971) (“When specific allegations as
to the time, place and parties involved in promises of leniency or unfulfilled agreements or
‘deals' between criminal defendants and government officials are made to establish an
involuntary plea of guilty, cases in this Circuit and elsewhere clearly require an evidentiary
hearing.”).
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conversations with defense counsel contradict [his] previous statements in court,”
the defendant’s credibility may be “conclusively decided on the basis of
documentary testimony and evidence in the record,” and no evidentiary hearing
is required.39 In addition, it is unclear from Mr. Moreno’s filings what relief he is
seeking if he persuades the Court that his attorneys were ineffective in failing to
alert the Court to an alleged breach of an oral plea agreement by the government.
The Court will hold oral argument to address each of these topics.40
Claim 2(a) asserts that appellate counsel was ineffective for not raising on
direct appeal the government’s breach of the purported verbal plea agreement.
Resolution of this claim depends on some of the same fact-finding as does Claim
1(a), specifically whether the government breached a plea agreement. The Court
does not further address Claims 1(a) or 2(a) in this order.
V. Claims 1(b) and 2(b): The leadership role enhancement
Claims 1(b) and 2(b) relate to Mr. Moreno’s sentencing attorney not
objecting to, and his appellate attorney not raising on appeal, the Presentence
Report’s use and the Court’s imposition of a two-level U.S.S.G. § 3B1.1
leadership role enhancement. Mr. Moreno does not make any argument as to
39 Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989).
40 See Watts v. United States, 841 F.2d 275, 276–78 (9th Cir. 1988) (approving district court’s
decision to hold a hearing to determine whether the defendant’s § 2255 claims “required an
evidentiary hearing with Watts and his wife present to testify, or if the court could hear the
claim ‘on the record’”).
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these claims in his memorandum in support of his § 2255 motion, and the
government did not respond to these claims.
Mr. Moreno’s plea agreement stated that his two co-conspirators acted
“[a]t his direction” when they carried 447 grams of methamphetamine on a flight
from California to Alaska.41 At the change of plea hearing, Mr. Moreno also
agreed, under oath, that his co-conspirators were acting at his direction.42 At
sentencing, the Court found that the § 3B1.1 enhancement applied because “Mr.
Moreno acknowledge[d] at the time of the change of plea, it was that the two
cousins were carrying the methamphetamine at his direction.”43 There is no
evidence to support Mr. Moreno’s contention that there was a “deliberate
fabrication of facts” by the U.S. Probation Office related to his role in the
conspiracy.44 In light of Mr. Moreno’s uncontroverted sworn admission,
sentencing counsel’s decision not to object to this enhancement at sentencing
did not fall below an objective standard of reasonableness, and counsel was not
ineffective. Accordingly, Claim 1(b) is denied. For the same reason, and
because Mr. Moreno’s plea agreement included a valid appeal waiver, appellate
41 Docket 19 at 4.
42 Docket 61 at 18 (transcript).
43 Docket 87 at 11.
44 See Docket 117 at 4, 5.
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counsel’s decision not to raise this issue on appeal was reasonable, and Claim
2(b) is therefore denied.
VI. Claims 1(c) and 2(c): The use of Alaska state court cases to increase
criminal history score
Claims 1(c) and 2(c) relate to Mr. Moreno’s attorneys not challenging the
Presentence Report and the Court’s inclusion of his state court cases to calculate
his criminal history category.45 Specifically, Mr. Moreno complains that his
sentencing counsel should have argued that the Court could not use three of his
Alaska state cases to calculate his criminal history points because he is actually
innocent of the crimes he was convicted of in each of those cases and because
one of those cases was not final because it was the subject of state post-
conviction proceedings that were still then pending.46
The U.S. Probation Office determined that Mr. Moreno had five criminal
history points, then added another two points because the offense of conviction
was committed while he was on probation in a state court case; this resulted in
45 The Court disagrees with the government’s assertion that “[t]his argument is meritless
because there was no sentencing ‘enhancement’ . . . pursuant to 21 U.S.C. § 851.” Docket
124 at 9–10. This assertion is merely one of semantics—it is clear from the § 2255 motion
and from the sentencing hearing transcript that Mr. Moreno was attempting to raise the issue
of the calculation of his criminal history score (which he refers to an “enhancement” of his
sentence), and the Court will address the issue regardless of whether he used the proper
legal terminology.
46 Docket 117 at 4.
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seven total criminal history points and a criminal history category of IV.47 The
Court adopted this Guidelines computation at sentencing.48 Mr. Moreno’s
sentencing counsel did not object to the criminal history category.49
U.S.S.G. § 4A1.2 guides courts in determining what criminal history should
be considered at sentencing. A “‘prior sentence’ means any sentence previously
imposed upon adjudication of guilt.”50 “‘Conviction for an offense’ . . . means that
the guilt of the defendant has been established, whether by guilty plea, trial, or
plea of nolo contendere.”51 The Guidelines do not have a provision specific to
cases in which post-conviction proceedings are pending in state court at the time
of sentencing, but the Guidelines indicate that “sentences under appeal are
counted” unless an exception—none of which are applicable here—applies.52
Moreover, in United States v. Mackbee, the Ninth Circuit considered the definition
of “prior sentence” for computing criminal history pursuant to U.S.S.G. § 4A1.2.53
The Circuit held that to count towards a defendant’s criminal history score, a prior
47 Docket 42 at 18 (Final Presentence Investigation Report) (under seal).
48 Docket 87 at 9.
49 Docket 87 at 13.
50 U.S.S.G. § 4A1.2(a)(1).
51 U.S.S.G. § 4A1.2(a)(4).
52 U.S.S.G. § 4A1.2(l).
53 894 F.2d 1057 (9th Cir. 1990).
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sentence need not be final, reasoning that “Section 4A1.2(a)(1) defines ‘prior
sentence’ as ‘any sentence previously imposed upon adjudication of guilt,
whether by guilty plea, trial, or plea of nolo contendere.’ Language indicating a
requirement that the sentence be final is conspicuously absent.”54
Mr. Moreno’s actual innocence arguments are also foreclosed by Ninth
Circuit caselaw. In United States v. Burrows, the Ninth Circuit held that the
Guidelines do not confer on a defendant the right “to attack his prior [state]
conviction in his [federal] sentencing proceeding and no constitutional right to
attack any prior convictions save those which were obtained in violation of [the
right to counsel].”55
Because neither plea nor sentencing counsel could raise a viable
challenge to Mr. Moreno’s prior state convictions at sentencing, they were not
ineffective for not doing so. Claim 1(c) is therefore denied. And because Mr.
Moreno could not successfully challenge the inclusion of his state convictions in
the Court’s Guidelines calculation at sentencing, and in light of the appellate
waiver in Mr. Moreno’s plea agreement, any appellate challenge would have
54 Id.
55 36 F.3d 875, 885 (9th Cir. 1994). Cf. Daniels v. United States, 532 U.S. 374, 384 (2001)
(holding that a defendant may not challenge a sentence in a 28 U.S.C. § 2255 proceeding by
collaterally attacking the validity of an earlier conviction).
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been futile. Therefore, appellate counsel did not render deficient performance
for failing to raise this issue,56 and Claim 2(c) is denied.
VII. Claim 8: Failure to investigate and failure to advise
Claim 8 alleges that “[a]t no time did [plea counsel] explain the charges in
detail, investigate the charges or discuss with movant his role in the case or his
past criminal history, or the guidelines and how they might be affected by
movant’s past criminal history, probation or parole status or other possible
guideline enhancements.”57 Mr. Moreno asserts that had plea counsel properly
advised him, he would not have pleaded guilty.58
Mr. Moreno does not develop any argument regarding what plea counsel
failed to explain regarding the charge or regarding how plea counsel failed to
investigate his case, and the Court does not address these allegations further.59
As to Mr. Moreno’s assertions that plea counsel failed to discuss how
criminal history, a leadership role, and probation/parole status could affect the
calculation of his sentence, his sworn testimony at the change of plea hearing
56 See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel’s failure to
raise issues on direct appeal does not constitute ineffective assistance when appeal would not
have provided grounds for reversal.”).
57 Docket 117 at 14.
58 Docket 117 at 14.
59 Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26
(9th Cir. 1994) (“It is well-settled that ‘[c]onclusory allegations which are not supported by a
statement of specific facts do not warrant habeas relief’”)).
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directly contradicts these assertions. “[S]tatements made by a criminal defendant
contemporaneously with his plea should be accorded great weight.”60 “[T]he
representations of the defendant, his lawyer, and the prosecutor at such a
hearing, as well as any findings made by the judge accepting the plea, constitute
a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.”61 Mr. Moreno
gave sworn testimony at his change of plea hearing that he had discussed the
charge with plea counsel, that he had told plea counsel everything counsel
needed to know to defend the case, that plea counsel had answered all of his
questions, and that he was satisfied with the assistance of plea counsel.62 Mr.
Moreno also testified that he had reviewed the plea agreement with counsel and
discussed with counsel the “sentencing laws and the [G]uidelines and how they
might apply” to the case.63 The Court finds that Mr. Moreno’s claims of ineffective
assistance of plea counsel based on a failure to advise are not supported by the
record. Accordingly, Claim 8 is denied.
60 Chizen v. Hunter, 809 F.2d 560, 563 (9th Cir. 1986) (citing Blackledge v. Allison, 431 U.S.
63, 73–74 (1977)).
61 Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).
62 Docket 61 at 7.
63 Docket 61 at 8–9, 16.
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CONCLUSION
For the foregoing reasons, IT IS ORDERED that Claims 3, 4(a), 4(b), 5, 6,
and 7 in the motion at Docket 117 are DENIED because they were waived. IT
IS FURTHER ORDERED that Claims 1(b), 1(c), 2(b), 2(c), and 8 are DENIED
because Mr. Moreno has not shown that counsel were ineffective. As to all of
those claims, the Court finds that Mr. Moreno has not made the requisite
substantial showing of the denial of a constitutional right, and therefore a
certificate of appealability will not be issued by this Court.64 Mr. Moreno may
request a certificate of appealability from the Ninth Circuit Court of Appeals when
the Court enters a final judgment in this case.
The Court will hold a telephonic oral argument on August 17, 2021 at
12:00 p.m. to address (1) whether an evidentiary hearing on the remaining claims
is warranted, and if so, what evidence each party would intend to present; and
(2) for Mr. Moreno to articulate what relief he is seeking from the Court if he
prevails on the remaining claims. The parties shall participate telephonically by
dialing 1-877-402-9753 (using access code 6288202#) from a landline telephone
approximately five minutes before the scheduled hearing time.
64 28 U.S.C. §§ 2255(d), 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(certificate of appealability may be granted only if applicant made a “substantial showing of the
denial of a constitutional right,” i.e., a showing that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further” (internal quotations
and citations omitted)).
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DATED this 22nd day of July, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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