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
(CLAIMS 1(a) and 2(a))
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. The Court previously issued an order denying 11 of the claims
raised by the motion.1 This order addresses the two remaining claims.
The Court held an evidentiary hearing on October 27, 2021, and November
3, 2021. Four witnesses testified: Mr. Moreno’s first trial counsel Matthew
Scoble,2 former Assistant U.S. Attorney Timothy Edmonds, Mr. Moreno’s second
1 Docket 126.
2 Judge Scoble is currently the Chief Magistrate Judge for the District of Alaska. However,
because his association with this case is from his time as an Assistant Federal Public
Defender and because he testified in that capacity, the Court refers to him in this order as Mr.
Scoble.
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trial counsel D. Scott Dattan, and Mr. Moreno. After the hearing, the government
filed proposed findings of fact and conclusions of law at Docket 186. Mr. Moreno
filed proposed findings at Docket 187. Having considered each parties’ filings
and exhibits, the hearing testimony, and the record in this case, the Court now
makes the following findings and conclusions as to the two remaining § 2255
claims.
I. Background
The Court has previously set forth the procedural background of this case
at Docket 126. As relevant here, 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 Approximately one month later, on May 19, 2016, Mr. Moreno
signed a written plea agreement, in which he agreed to plead guilty to the Drug
Conspiracy count. The following month, on June 16, 2016, Mr. Moreno appeared
in court and entered a guilty plea.6 At the time, Mr. Moreno was represented by
attorney Matthew Scoble. Prior to sentencing, attorney Scoble was removed
3 Docket 1.
4 Docket 11; Docket 12.
5 Docket 14.
6 Docket 19 (plea agreement); Docket 22 (minute entry).
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from the case and replaced with attorney D. Scott Dattan.7 In February 2017, the
Court sentenced Mr. Moreno to 120 months imprisonment.8 In his § 2255 motion,
Mr. Moreno asserts that attorney Scoble entered into a verbal plea agreement
with AUSA Timothy Edmonds on April 5, 2016, in which the government agreed
that it would not recommend a sentence longer than the five-year mandatory
minimum.9
This order addresses two claims related to the purported verbal plea
agreement: Claim 1(a) alleges ineffective assistance of both Mr. Scoble and Mr.
Dattan for failing “to object or otherwise challenge the government’s breach of
the Oral Promises made to me related to the Plea Agreement.”10 Claim 2(a)
alleges ineffective assistance of appellate counsel for failing to raise on appeal
the government’s “Breach of the Oral Promissory Plea Agreement.”11
7 Docket 35 (minute entry); Docket 36 (sealed minute entry); Docket 38 (Notice of Attorney
Appearance).
8 Docket 71 (Judgment).
9 See Docket 117-1 at 4. Cf. Docket 95 at 1 (“[B]y April 5th 2016 petitioner accepted an Oral
Promissary [sic] Plea Agreement for two (2) years, two (2) months of actual incarceration for a
no more than 60 month total sentence . . . .”).
10 Docket 117 at 4.
11 Docket 117 at 5.
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II. Legal standard
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.12 Deficient performance requires a showing that trial counsel’s
representation “fell below an objective standard of reasonableness” as measured
by prevailing professional norms.13 There is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”14 This
standard applies even when the ineffective assistance claims arise out of the
guilty plea process.15 To show prejudice, Mr. Moreno must show that “there is a
reasonable probability that, but for counsel’s errors, the results of the proceeding
would have been different.”16 Failure to meet either prong is fatal to a defendant’s
claim.17
12 466 U.S. 668, 687 (1984).
13 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
14 Strickland, 466 U.S. at 689.
15 Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).
16 Strickland, 466 U.S. at 694.
17 Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 2011) (“Because failure to meet either prong
is fatal to [a defendant's] claim, there is no requirement that [courts] ‘address both
components of the inquiry if the defendant makes an insufficient showing on one.’” (quoting
Strickland, 466 U.S. at 697)).
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Claims of ineffective assistance of appellate counsel are reviewed
according to the standard set forth in Strickland.18 To be constitutionally effective,
“counsel need not appeal every possible question of law.”19 A failure to raise
untenable issues on appeal does not fall below the Strickland standard.20
Mr. Moreno carries the burden of proving he is entitled to relief.21 Mr.
Moreno seeks to have his sentence vacated, have this Court order specific
performance of the purported oral plea agreement, and to be resentenced before
a different judge.22
III. Evidence of the plea-bargaining process and sentencing in this
case
Claim 1(a) includes Mr. Moreno’s assertion that Mr. Scoble was ineffective
for not enforcing a purported verbal plea agreement between Mr. Scoble and
AUSA Edmonds that the government would recommend no more than a five-
year sentence. At the evidentiary hearing, Mr. Scoble testified that he and AUSA
Edmonds “charge bargained” the case prior to an information being filed; the
18 Turner v. Calderon, 281 F.3d 851, 871 (9th Cir. 2002).
19 Id. (citations omitted).
20 Feathersone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991).
21 See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
22 Docket 117-1 at 30; Docket 187 at 22. See also United States v. Travis, 735 F.2d 1129,
1132 (9th Cir. 1984) (“Where the government violates a plea agreement at sentencing, the
usual remedy is a remand for resentencing.”).
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result was that the government charged the case in a manner that carried a five-
year mandatory minimum instead of a ten-year mandatory minimum.23 Several
days before Mr. Moreno waived indictment and was arraigned on the information,
he and Mr. Scoble attended a proffer session with various state and federal
government agents in the hopes of receiving a sentence reduction.24
Mr. Moreno signed a plea agreement on May 19, 2016.25 A week later, on
May 26, 2016, Mr. Scoble learned from AUSA Edmonds that the government was
not going to make a motion for a § 5K1.1 sentence reduction; Mr. Scoble relayed
this to Mr. Moreno.26 Mr. Scoble testified that Mr. Moreno was very upset at
learning he would not be getting a reduction, and Mr. Moreno told Mr. Scoble that
he had been “promised” a 50% reduction.27 Despite knowing he would not get a
reduction for substantial assistance, and despite being told by Mr. Scoble that he
23 Docket 188 at 20. Mr. Scoble testified that he and AUSA Edmonds charge bargained Mr.
Moreno’s case by agreeing that Mr. Moreno would be “pleading to an information and that the
way he would be charged in the information would limit his mandatory minimum to ten years
or five years—five years instead of ten years.” Docket 188 at 20.
24 Docket 189 at 4–5. The proffer session occurred on April 12, 2016. Mr. Moreno was
charged by information on April 15, 2016.
25 Docket 19.
26 Docket 189 at 14–16.
27 Docket 189 at 13, 29–31.
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did not have to plead guilty, Mr. Moreno proceeded to enter a guilty plea on June
16, 2016.28
Mr. Scoble testified that after the change of plea hearing, Mr. Moreno
began expressing to Mr. Scoble that he believed Mr. Scoble had lied by telling
him that the government would not request a sentence of longer than five years.29
Mr. Moreno also expressed distrust of Mr. Scoble for other reasons. Due to the
deterioration of the attorney-client relationship, Mr. Scoble moved for status of
counsel hearings on June 11, 2016, and August 17, 2016.30 In his declarations
of counsel in support of his motions for those hearings, Mr. Scoble indicated that
“Mr. Moreno believes that counsel forced him into a plea agreement, the terms
of which he was not satisfied with”31 and that Mr. Moreno was “claiming that
counsel had misrepresented the terms of the plea agreement to him[.]”32 At the
second status of counsel hearing, on August 30, 2016, Mr. Scoble was withdrawn
as counsel.33
28 Gov. Exh. 1 at 2, 3.
29 Docket 188 at 50–51; see also Gov. Exh. 1 at 4.
30 Docket 26; Docket 32.
31 Docket 24 at 2 (under seal).
32 Docket 33 at 2 (under seal).
33 Docket 35; Docket 36 (under seal); Docket 37 (ex parte).
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A. Evidence of the proffer agreement
Mr. Scoble testified that his practice was to advise proffering clients that a
proffer was not a guarantee of any sentence reduction, that the largest reduction
a defendant could receive was 50% but that he had never seen that large of a
reduction, and that getting more than a 5% or 10% reduction was unusual.34 Mr.
Scoble testified that never in his career had he advised a client that the client
would receive a 50% § 5K1.1 reduction after only one proffer session.35 Mr.
Scoble also testified about the proffer letter he and Mr. Moreno had signed prior
to the proffer session.36 The proffer letter emphasizes that “entering into this
agreement does not operate as a guarantee that any sentence you may receive
will be reduced in any way even if you comply with all of its conditions.”37 Notably,
Mr. Scoble testified that “Mr. Moreno knew before he pled guilty on June 16th
that the government was not intending to give him 5K credit.”38 Although there
34 Docket 189 at 13–14, 31; Docket 188 at 57.
35 Docket 189 at 31.
36 Docket 189 at 8.
37 Gov. Exh. 15 at 3.
38 Docket 189 at 29. Accord Docket 189 at 29–30 (“[T]here is not a doubt in my mind that I
explained to him prior to his changing his plea that he would not be getting a 5K
recommendation.”); Docket 189 at 31–32 (“I reminded him he was under no obligation to
change plea if he didn’t want to. [Mr. Moreno] confirmed that he did want to change plea.”).
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was a proffer agreement in this case, Mr. Moreno did not enter into a cooperation
agreement with the government.39
Mr. Moreno testified that at the proffer session he was told “that anything I
told them or gave them could not be used against me nor would it be left---nor
would it be left out of the room. They cannot use it to give me any more charges
or anything.”40
B. Evidence of a purported verbal plea agreement for a five-year
recommendation
At the evidentiary hearing, Mr. Scoble testified that on April 19, 2016, he
prepared a memorandum in this case and discussed it with Mr. Moreno.41 The
memorandum does not state that Mr. Scoble had made a plea deal with AUSA
Edmonds that included a recommendation by the government no more than a
five year sentence, although the memorandum does note the five-year
mandatory minimum.42 Mr. Scoble also testified regarding the notes that he had
made during a jail visit May 10, 2016, that he had with Mr. Moreno prior to signing
the plea agreement.43 The handwritten notes contain no reference to a five-year
39 See Docket 20 (sealed plea agreement addendum stating that “[t]here is no addendum to
the plea agreement”).
40 Docket 190 at 47–48.
41 Docket 188 at 38–39.
42 See Def. Exhibit B at 8–9 (Interoffice Memorandum dated Apr. 19, 2016).
43 Docket 188 at 29–31.
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sentencing recommendation by the government, although they appear to note
the five-year mandatory minimum.44 Indeed, if Mr. Scoble believed there was an
oral agreement for a government recommendation of no more than five years
made on April 5, 2016, it seems highly unlikely that he would have written a
memorandum outlining potential sentencing exposure of 70 to 115 months on
April 19, 2016, or would have made rough Sentencing Guidelines calculations of
60 to 87 months during a jail visit with Mr. Moreno on May 10, 2016.45 Finally,
Mr. Scoble testified regarding a declaration he signed approximately four months
after withdrawing as counsel for Mr. Moreno.46 The declaration states that Mr.
Scoble “engaged in plea negotiations” with AUSA Edmonds, that the
“negotiations resulted in the written plea agreement,” and that “[t]here were no
agreements between the parties apart from what is set forth in that written plea
agreement.”47 Mr. Scoble testified that the assertion “that there were no
agreements between the parties” other than as stated in the written plea
agreement was “absolutely true.”48 Mr. Scoble also testified that he “explain[ed]
44 See Def. Exhibit B.
45 Def. Exh. B at 6, 8–9. The rough estimate of the Guidelines range was inaccurate. The
Guidelines range found by the Court was 100–125 months. Docket 72 at 1 (sealed Statement
of Reasons).
46 Docket 188 at 33–35.
47 Gov. Exhibit 13.
48 Docket 188 at 46.
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the plea agreement to [Mr. Moreno] in detail” as reflected in his contemporaneous
log notes from the case.49
Former AUSA Edmonds testified about a “plea agreement cover sheet”
that he prepared for his supervisor’s review dated May 11, 2016.50 The cover
sheet proposes a sentencing recommendation of five years.51 Mr. Edmonds
testified that it is possible that a notation by his supervisor on the plea agreement
cover sheet required that he change that sentencing recommendation before
making the offer to the defense.52 Mr. Edmonds could not recall his plea
agreement discussions with Mr. Scoble. There was no evidence presented that
the plea agreement cover sheet was ever provided to Mr. Scoble.
Mr. Moreno testified that when he was arrested at the Anchorage airport
on April 2, 2016, DEA Agent Pawlak told him that he “was being charged with a
ten-year mandatory minimum for drug conspiracy. He told me that if I cooperate
49 Docket 189 at 29; Gov. Exh. 1 at 2.
50 Docket 188 at 62.
51 Def. Exh. A at 4.
52 Docket 188 at 70. Handwritten on the cover sheet are the supervisor’s initials followed by
an illegible notation, which the government suggested reads “w/change.” A hand-drawn line
connects the notation to the bottom of the page, where AUSA Edmonds had typed “5 yrs
imprisonment.” The words “5 yrs” were circled by the supervisor. The supervisor’s notation
appears to have been made on May 11, 2016. The government suggests this notation
indicates that AUSA Edmonds’ supervisor required him to change the five-year
recommendation before making the plea offer to the defense. Docket 188 at 70. That AUSA
Edmonds’ supervisor required a change from the five-year recommendation is consistent with
the government’s recommendation of a 120-month sentence at the imposition of sentence
hearing. Docket 44 at 2; Docket 87 at 20.
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and gave information about a murder case, they can reduce the sentence up to
15---up to 50 percent.”53 Mr. Moreno testified that this was a promise made to
him by Agent Pawlak regarding getting a 50% reduction for cooperation.54
Mr. Moreno testified that at his arraignment on April 5, 2016, “Mr. Scoble
agreed to waive the grand jury indictment and trial for a max sentence of five
years” and that he, Mr. Moreno, “accepted the oral promissory plea of a five-year
sentence.”55 Mr. Moreno also testified that at his arraignment, Mr. Scoble and
AUSA Edmonds both told the Court that there was an oral agreement to settle
the case.56 Mr. Moreno believed that “the five-year max sentence became official
on April 5” and that if he cooperated with the government “they can knock off 50
percent of the mandatory minimum, which was the mandatory minimum of five
[years].”57
Mr. Moreno also testified that Mr. Scoble did not review or discuss the
written plea agreement with him, but that Mr. Scoble told him that it was “a
53 Docket 190 at 43.
54 Docket 190 at 55.
55 Docket 190 at 44.
56 Docket 190 at 43–44. Accord Docket 190 at 58–59 (“So after we agreed to this, then we
went to court and the judge asked Edmonds if I was waiving the grand jury indictment and trial
for some type of agreement and if he agreed with Scoble, and he said yes.”). But see
discussion infra at Part IV regarding review of transcript of arraignment.
57 Docket 190 at 44.
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generic plea” and that it was “a generic five-year deal.”58 Mr. Moreno testified
that Mr. Scoble told him that “all the letters and numbers” in the written plea
agreement did not mean anything because AUSA Edmonds “personally assured
him that he’s not going to ask for a day over five years and this is just a generic
plea that they give to everybody.”59 Mr. Moreno also testified that when he told
Mr. Scoble that he wanted to take the written plea agreement to read back in the
jail, Mr. Scoble told him not to take it and review it because they had court the
next day.60
The record of prior hearings is also evidence in this case. At Mr. Moreno’s
change of plea hearing on June 16, 2016, he testified that he had read the plea
agreement, understood it, and had discussed it with Mr. Scoble.61 Mr. Moreno
also testified that Mr. Scoble had answered all of the questions he had about the
case.62 Mr. Moreno testified that he understood that the possible sentence he
58 Docket 190 at 48–51.
59 Docket 190 at 51. Accord Docket 190 at 53 (“[H]e just told me that it doesn’t mean anything
and Edmonds personally assured him that he was not going to ask for a day over five years
because I already had the five-year max plea and just to sign it.”).
60 Docket 190 at 51.
61 Docket 61 at 8–9. Moreover, Mr. Moreno’s original § 2255 motion also asserted that Mr.
Scoble did not “inform Moreno of any use of prior convictions, leadership role, or probation or
parole enhancements, before Moreno’s plea of guilty . . . .” that occurred on June 16, 2016.
Gov. Exh. 12 at 37. This assertion is contradicted by Mr. Scoble’s notes. See Gov. Exh. 1 at 2
(May 19, 2016 note detailing conversation about how prior convictions and probation affect
Mr. Moreno’s criminal history score).
62 Docket 61 at 7.
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could receive ranged from five to forty years.63 When Mr. Scoble and AUSA
Edmonds informed the Court that there were no other formal offers to resolve
the case apart from the written plea agreement, Mr. Moreno did not attempt to
notify the Court of any verbal plea agreements or promises.64 To the contrary,
Mr. Moreno testified that no one had “promised or guaranteed” him anything that
was not contained in the written plea agreement signed by him, filed in the
record, and reviewed with the Court at the change of plea hearing.65
C. Evidence regarding sentencing counsel
Claim 1(a) also includes Mr. Moreno’s assertion that Mr. Dattan was
ineffective for not arguing at sentencing that the government had breached a
verbal plea agreement that it would recommend a five-year sentence.
The bulk of Mr. Dattan’s testimony focused on his understanding of the
difference between a “cooperation agreement”—entered into to possibly gain a
§ 5K1.1 sentencing reduction and then filed under seal as an addendum to a
plea agreement—and a “proffer agreement,” which is effectively an immunity
agreement. Mr. Dattan testified that the agreement Mr. Moreno, Mr. Scoble, and
the government signed on April 12, 2016,66 was a proffer immunity agreement,
63 Docket 61 at 12–13.
64 Docket 61 at 7–8.
65 Docket 61 at 16–17.
66 See Gov. Exh. 15 (proffer letter).
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not a § 5K1.1 cooperation agreement.67 He emphasized that that agreement
“does not suggest that [Mr. Moreno] will receive any specific sentence as a result
of his cooperation. This is an agreement that he will talk to the government and
the government won’t use his statements against him. It’s not an agreement for
a sentence.”68
Mr. Moreno did not testify about his communications with Mr. Dattan.
At the imposition of sentence hearing, Mr. Dattan notified the Court that
Mr. Moreno believed that he had agreed to a sentence of five years, and that
Mr. Scoble had provided a declaration that stated that “[t]here were no
agreements between the parties, apart from what was set forth in that written
plea agreement.”69 Mr. Dattan also noted that Mr. Scoble’s declaration
“contrasts starkly with Mr. Moreno’s reasoning, at least at this time, for entering
into the plea agreement. And he will tell you why he believes he was promised
67 Docket 190 at 33–34.
68 Docket 190 at 23. Accord Docket 190 at 25 (“[T]hey had an agreement that he would come
and talk and they would not use the statements against him.”); Docket 190 at 27 (“I found no
cooperation agreement. And there isn’t one that I have been able to find in the file. There’s a
proffer letter that is an agreement not to use his statements against him as long as he remains
truthful and doesn’t testify differently.”); Docket 190 at 32 (agreeing that “within the District of
Alaska, [there is] commonly understood to be a difference between a proffer immunity
agreement on the one hand versus a cooperation agreement on the other hand.”). See also
Docket 20 (sealed plea agreement addendum stating that “[t]here is no addendum to the plea
agreement.”); Docket 61 at 16–17 (Mr. Moreno’s testimony at the change of plea hearing that
there were no promises or guarantees that influenced him to change his plea, other than what
was in the written plea agreement.)
69 Docket 87 at 26.
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a five-year sentence, which would be the mandatory minimum.”70 After Mr.
Dattan’s sentencing presentation, Mr. Moreno made an allocution that spans
approximately 34 transcript pages. Mr. Moreno spent most of his allocution
asserting that he was innocent of prior state court convictions and pending state
court charges, and the Court and Mr. Dattan repeatedly had to redirect Mr.
Moreno to address the case for which he was being sentenced.71 Despite his
lengthy allocution and Mr. Dattan’s earlier comment that Mr. Moreno would
address why he believed there was an oral plea agreement during his allocution,
Mr. Moreno never discussed why he believed he was promised a five-year
sentence. Only after the Court imposed a sentence of 120 months did Mr.
Moreno interrupt and assert that “I had a five year deal---"72
D. Evidence regarding appellate counsel
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 there was ever a binding plea agreement that included
a five-year sentencing recommendation from the government. The only
70 Docket 87 at 27.
71 Docket 87 at 37, 64, 65
72 Docket 87 at 80.
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testimony presented regarding appellate counsel was Mr. Moreno’s testimony
that appellate counsel was ineffective because “he did not raise my arguments .
. . to which I believe he now—he put an affidavit saying that he messed up.”73
The Court has reviewed appellate counsel’s affidavit, which does not say that he
“messed up” but instead merely states that he did not receive certain documents
from Mr. Dattan when he took over the case for appeal.74
IV. Credibility findings
Having reviewed the record in this case, the Court finds that Mr. Moreno’s
testimony at the evidentiary hearing was not credible. Mr. Moreno’s testimony
was considerably at odds with the contemporaneous written documents, his own
testimony at prior court proceedings, and with the other evidence presented at
the evidentiary hearing. Several examples follow:
Mr. Moreno testified at the evidentiary hearing that at his first appearance,
on April 5, 2016, Mr. Scoble and AUSA Edmonds told the Court that they had
reached a plea deal in exchange for a waiver of indictment. But there was no
discussion of any waiver or any agreement on the record with the Court at the
April 5, 2016 initial appearance; in fact, at that hearing AUSA Edmonds told the
Court that the potential sentence in this case was a “mandatory minimum of five
73 Docket 190 at 79.
74 Def. Exh. F.
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years to 40 years of imprisonment.”75 At a preliminary hearing on April 13, 2016,
Mr. Moreno made a waiver of the preliminary hearing and waiver of indictment;
but again there was no discussion of there being any agreement regarding
sentencing.76 And at the arraignment on April 18, 2016, there again was no
discussion of any oral plea agreement regarding sentencing.77 At a pretrial
conference on May 20, 2016, there was no discussion with the Court of any oral
plea agreement regarding sentencing.78 The Court has also reviewed AUSA
Edmonds’ and Mr. Scoble’s notes from each of those hearings, none of which
reference any plea deal being made before or during those hearings.79
Moreover, Mr. Edmonds testified persuasively that he had no authority to enter
75 Docket 56 at 3 (transcript of April 5, 2016).
76 Docket 58 at 2–3 (transcript of April 13, 2016).
77 Docket 59 (transcript of April 18, 2016).
78 Docket 60 (transcript of May 20, 2016).
79 Def’s Exh. A, B. Mr. Moreno has inconsistently described what the “deal” was that he made.
In his habeas motion, Mr. Moreno wrote that on April 5, 2016, he made an offer to waive
indictment and trial “to save the tax payers some money, so that Moreno can still be a father to
his daughter,” and that Mr. Scoble—“government/state paid counsel”—accepted his offer on
behalf of the government. Gov. Exh. 12 at 11–12. Mr. Moreno then explained that later that
day AUSA Edmonds made an offer that would result in Mr. Moreno only serving two years,
two months, and Mr. Moreno accepted that deal. Gov. Exh. 12 at 12. Mr. Moreno went on to
write that he waived indictment and trial at his first appearance on April 5, 2016, in exchange
for a reduction of the mandatory minimum to five years, which, according to Mr. Moreno,
“clearly establishes that the parties agreed to a no more tha[n] five years deal, with no more
than two years, two months of actual incarceration.” Gov. Exh. 12 at 12.
See also supra note 23.
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into a plea agreement without the approval of his supervisor at the U.S.
Attorney’s Office.80
As to Mr. Moreno’s testimony that Mr. Scoble never reviewed the plea
agreement with him and lied to him about the contents and meaning of the
written plea agreement, a review of the transcript of Mr. Moreno’s change of plea
hearing belies his claims of ineffective assistance of counsel related to his
understanding of the plea agreement. At Mr. Moreno’s change of plea hearing
on June 16, 2016, he testified that he had read the plea agreement, understood
it, discussed it with Mr. Scoble, and that Mr. Scoble had answered all of the
questions he had about the case.81 Mr. Moreno testified then that he understood
that the possible sentence he could receive ranged from five to forty years.82
Mr. Moreno testified that no one had “promised or guaranteed” him anything that
was not contained in the written plea agreement signed by him, filed in the
record, and reviewed with the Court at the change of plea hearing.83
80 Docket 188 at 72.
81 Docket 61 at 7–9. Moreover, Mr. Moreno’s original § 2255 motion also asserted that Mr.
Scoble did not “inform Moreno of any use of prior convictions, leadership role, or probation or
parole enhancements, before Moreno’s plea of guilty . . . .” that occurred on June 16, 2016.
Gov. Exh. 12 at 37. This assertion is contradicted by Mr. Scoble’s notes. See Gov. Exh. 1 at 2
(note from May 19, 2016, detailing conversation about how prior convictions and probation
affect Mr. Moreno’s criminal history score).
82 Docket 61 at 12–13.
83 Docket 61 at 16–17. In Blackledge v. Allison, 431 U.S. 63, 73–74 (1977), the Supreme
Court recognized the considerable weight to be accorded to testimony from the original plea
hearing:
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As to Mr. Moreno’s testimony that Mr. Scoble did not allow him to take a
copy of the plea agreement back into the jail to review, this testimony is
contradicted by Mr. Scoble’s contemporaneous notes that show that on May 19,
2016, Mr. Scoble visited Mr. Moreno in jail, explained the plea agreement to him
“in det[ail],” and left Mr. Moreno “with a copy.”84 Mr. Moreno also signed the plea
agreement on that same date, May 19, 2016.85 Due to the inconsistencies and
contradictions between the record in this case and Mr. Moreno’s recent
testimony, the Court finds that Mr. Moreno’s material testimony at the evidentiary
hearing is wholly incredible.
The Court further finds Mr. Scoble’s testimony at the evidentiary hearing
as to the plea negotiations, proffer agreement, and plea agreement in this case
to be credible. The Court also finds Mr. Dattan’s testimony and Mr. Edmonds’
testimony at the evidentiary hearing to be credible. The Court finds that the
For the 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. The
subsequent presentation of conclusory allegations unsupported by specifics
is subject to summary dismissal, as are contentions that in the face of the
record are wholly incredible.
The Ninth Circuit recently noted that “[b]ecause the sworn statements during the plea colloquy
‘speak[] in terms of what the parties in fact agree to,’ they ‘carry a strong presumption of truth.”
United States v. Jackson, ___ F.4th ___, 2022 WL 16874, at *5 (9th Cir. Jan. 3, 2022) (quoting
United States v. Benchimol, 471 U.S. 453, 455 (1985)).
84 Def. Exh. 1 at 2.
85 Docket 19 (copy of plea agreement).
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written documentation, Mr. Moreno’s previous testimony, and counsels’
representations to the Court fully support Mr. Scoble’s, Mr. Dattan’s, and Mr.
Edmonds’ testimony.
V. Ineffective assistance of counsel
The Court finds that Mr. Moreno has not carried his burden of showing that
any of his counsel’s representation “fell below an objective standard of
reasonableness” as measured by prevailing professional norms.86
A. Plea counsel (Mr. Scoble)
The Court finds that there was no oral plea agreement between Mr. Scoble
and AUSA Edmonds and no oral promises made to Mr. Moreno that the
government would make a sentencing recommendation of not more than five
years. There is next to nothing in the record before the Court, other than Mr.
Moreno’s recent testimony, to support a finding of such an oral plea agreement.
On the contrary, the record—including Mr. Scoble’s and AUSA Edmonds’
contemporaneous file notes, the written plea agreement,87 Mr. Moreno’s
86 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
87 The written plea agreement is fully integrated; the agreement expressly states that “[t]here
are no other promises, assurances, or agreements the United States has made or entered
into with me that have affected my decision to enter any plea of guilty or to enter into this
agreement. If there are any additional promises, assurances, or agreements, I and the United
States will jointly inform the Court in writing before I enter my guilty plea.” Docket 19 at 11–12.
In United States v. Jackson, ___ F.4th ___, 2022 WL 16874, at *7 (9th Cir. Jan. 3, 2022), the
Ninth Circuit declined to consider extrinsic evidence of a purported verbal plea agreement
when the written plea agreement was “unambiguous, fully integrated, and expressly
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testimony at his change of plea hearing,88 and counsels’ testimony at the
evidentiary hearing—strongly supports the conclusion that the written plea offer
was the only plea agreement between the parties. Because there was no verbal
plea agreement or other verbal government promises, Mr. Scoble was not
ineffective for “fail[ing] to object or otherwise challenge the government’s breach
of the Oral Promises to [Mr. Moreno] related to the Plea Agreement.”89
The Court also finds that there was no agreement that Mr. Moreno would
receive any reduction in sentence—let alone a 50% reduction—in exchange for
proffering information. Mr. Moreno has repeatedly indicated via testimony and
writings that it was DEA Agent Pawlak who told him that his sentence could be
reduced by up to 50%.90 When asked whether Mr. Scoble told him he could
disclaim[ed] the existence of other promises.”
88 See Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) and United States v. Jackson, ___
F.4th ___, 2022 WL 16874, at *5 (9th Cir. Jan. 3, 2022).
89 Docket 117 at 4.
90 Docket 190 at 43, 44, 45, 55, 72, 75; Gov. Exh. 1 at 2 (Mr. Scoble’s note dated May 31,
2016, indicates that Mr. Moreno believed that Agent Pawlak’s purported promise trumped the
signed proffer letter: “He believes . . . any oral promises the agents made to him control, not
what is in the proffer letter”). Other parts of the record also support the conclusion that if Mr.
Moreno was in fact ever told that he could receive a 50% sentence reduction, it was by Agent
Pawlak. See Docket 63 at 2 (Mr. Moreno’s statement to the Court that “when I was arrested, I
immediately accepted responsibility and made a deal with Rick Pawlock and Rick Rambo . . .
.) (ex parte); Docket 66 at 6 (Mr. Moreno’s statement to the Court that “I was told when I was
arrested that for not going to the grand jury indictment and not going to trial, I was going to get
a five-year mandatory minimum sentence. I agreed to that. After that, I was also told that if I
gave information about a murder case, that I would get additional assistance at sentencing.”)
(ex parte).
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receive a 50% sentence reduction for cooperating, Mr. Moreno testified that it
was Agent Pawlak who gave him that information, not Mr. Scoble.91 However
Agent Pawlak had no authority to make binding promises to defendants and was
not a party to the proffer agreement in this case. Notably, the proffer agreement
signed by Mr. Moreno, Mr. Scoble, and AUSA Edmonds emphasizes that
“entering into this agreement does not operate as a guarantee that any sentence
you may receive will be reduced in any way even if you comply with all of its
conditions” and that whether the information “amounts to substantial assistance
to the government is solely within the discretion of the United States.”92
B. Sentencing counsel (Mr. Dattan)
Throughout the course of this litigation, Mr. Moreno has altered his
allegation of ineffective assistance as it relates to Mr. Dattan. Mr. Moreno’s
amended § 2255 motion asserted that Mr. Dattan was ineffective for not enforcing
the purported oral promises made “related to the Plea Agreement.” The
memorandum in support of Mr. Moreno’s amended motion expressly details what
the terms of those purported oral promises were:
Later in the day, Scoble returned to movant from talking to the
prosecutor, Edmonds, and told movant, that he was lucky and that
Edmonds agreed and offered to drop the mandatory minimum from
ten (10) years, to five (5) years; and that on five years, with good
time, at about 85%, movant would have to do about four years two
91 Docket 190 at 44–45.
92 Gov. Exh. 15 at 3.
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months. With a completed R.D.A.T. drug class, an additional one
year would be knocked off, leaving about three (3) years, two (2)
months. In addition, Scoble told movant that he would probably go
to the halfway house for about one (1) year, so he would only be
actually incarcerated for about two (2) years. Movant told Scoble that
he accepted the offer of two (2) years, two (2) months of actual
incarceration for a no more than 60- month total sentence for waiving
the grand jury indictment and trial.93
Notably, nothing in Mr. Moreno’s amended § 2255 motion or memorandum
mentions an oral promise for a 50% reduction for cooperating with the
government, and the purported promises quoted above do not include any
calculation of a reduction for cooperation. Thus, nothing in Mr. Moreno’s
amended motion or memorandum asserts that Mr. Dattan was ineffective for not
raising to the sentencing court the fact that Mr. Moreno had participated in a
proffer session.
Now, Mr. Moreno asserts that Mr. Dattan’s “failure to bring [the] plea-
breach claim to the district court’s attention at sentencing constituted ineffective
assistance.”94 Mr. Moreno seeks to classify the proffer agreement as a part of
the plea agreement and then fault Mr. Dattan for not discovering the proffer
agreement and not presenting it to the Court at sentencing,95 despite Mr. Scoble
telling Mr. Moreno in May 2016 that the government would not be making a §
93 Docket 117-1 at 25–26.
94 Docket 187 at 23 (defendant’s Proposed Findings).
95 Docket 187 at 18.
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5K1.1 reduction in its sentencing recommendation. Even assuming—without
deciding—that Mr. Dattan performed deficiently, Mr. Moreno has not
demonstrated how he was prejudiced. Mr. Moreno has presented no evidence
in support of his assertion that “[h]ad Dattan discovered the proffer agreement he
could reasonably have worked with the prosecutor to fill in the blanks and
facilitate some kind of a § 5K1.1 motion.”96 Here, there was no cooperation
agreement or an agreement for a possible § 5K1.1 reduction in sentence.
Moreover, even if there had been such an agreement, Mr. Dattan testified that in
the past five or ten years of his practice, he had not “been able to convince the
government to change its mind with respect to conveying a benefit for
cooperation.”97 This is bolstered by Mr. Scoble’s testimony that once the
government has decided not to give a substantial assistance reduction,
“generally speaking, that’s not really a point that can be negotiated, at least in my
experience.”98
Moreover, the government’s sentencing memorandum supplement stated
that there was no addendum to the government’s publicly filed sentencing
memorandum99—a fact that fully supports the conclusion that Mr. Moreno (while
96 Docket 187 at 17.
97 Docket 190 at 30.
98 Docket 188 at 16.
99 Docket 45 (under seal).
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represented by Mr. Scoble) had made a proffer agreement with the government,
not a § 5K1.1 cooperation agreement. The Court further finds that Mr. Dattan
reasonably investigated Mr. Moreno’s claim that there was another plea
agreement: Mr. Dattan contacted Mr. Scoble to inquire about other plea
agreements and obtained a declaration from Mr. Scoble that there was no plea
agreement other than what was included in the written agreement.
Mr. Moreno also asserts that Mr. Dattan could have “challenge[d] the
prosecutor’s decision not to move for a § 5K1.1 sentencing reduction by moving
the Court to enforce the agreement.”100 However, Mr. Moreno has not
demonstrated that there was any § 5K1.1 agreement to enforce: The proffer
agreement makes clear that Mr. Moreno was not guaranteed any sentence
reduction in exchange for information. The only promise made to Mr. Moreno
was that the information he provided at the proffer session would not be used
against him. Mr. Moreno cites to Wade v. United States and Santobello v. New
York for the premise that “the government’s discretionary power to file a § 5K1.1
sentence reduction motion is subject to constitutional limitations that district
courts can enforce” and that due process requires “that when a plea agreement
rests in any significant degree on a promise or agreement of the prosecutor, such
promise must be fulfilled.”101 Wade in inapplicable here because Mr. Moreno has
100 Docket 187 at 17.
101 Docket 187 at 18–19 (citing Wade v. United States, 504 U.S. (1992) and Santobello v. New
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not asserted, and there is no evidence, that the government’s refusal to file a §
5K1.1 motion “was based on an unconstitutional motive” or “suspect reasons
such as his race or his religion.”102 Indeed, Wade emphasizes that “a claim that
a defendant merely provided substantial assistance will not entitle a defendant to
a remedy” from the court.103 Santobello is also inapplicable because Mr. Moreno
has not demonstrated that there was any oral promise, side agreement, or §
5K1.1 agreement made by the government as to its sentencing recommendation
to be enforced in this case.
C. Appellate counsel (Mr. Rodriguez)
The Court finds that appellate counsel did not perform deficiently by not
raising on appeal “the Breach of the Oral Promissory Plea Agreement.”104 A
failure to raise untenable issues on appeal does not fall below the Strickland
standard.105
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Claims 1(a) and 2(a) are
DENIED because Mr. Moreno has not shown that any of his counsel were
York, 404 U.S. 257 (1971)).
102 504 U.S. at 185–86.
103 504 U.S. at 186.
104 Docket 117 at 5.
105 Feathersone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991).
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ineffective. As to both of those claims, the Court finds that Mr. Moreno has not
made the requisite substantial showing of the denial of a constitutional right;
therefore, a certificate of appealability will not be issued by this Court.106 Mr.
Moreno may request a certificate of appealability from the Ninth Circuit Court of
Appeals.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 14th day of January, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
106 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)).
The Court previously denied a certificate of appealability as to claims 1(b), 1(c), 2(b), 2(c), 3,
4(a), 4(b), 5, 6, 7, and 8. Docket 126 at 17.
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