USA v. Dalton

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ABREAIN TERRON DALTON,
Defendant.
Case No. 3:17-cr-00059-TMB
ORDER ON MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255
(DKT. 70)
I. 	INTRODUCTION
The matter comes before the Court on Defendant Abreain Terron Dalton’s Motion to
Vacate, Set Aside, or Correct pursuant to 28 U.S.C. § 2255 (the “Motion”).1 The Motion seeks to
vacate Dalton’s sentence and dismiss the Indictment with prejudice on the grounds that he was
provided ineffective assistance of counsel.2 The United States opposes the Motion.3 Dalton did
not file a reply, and the time in which to do so has now passed. The parties did not request an oral
argument and the Court finds it would not be helpful. For the reasons stated below, Dalton’s
Motion to Vacate is DENIED.
II. 	BACKGROUND
This case arises out a guilty plea Dalton entered, in which he admitted to one count of
Possession of a Controlled Substance with Intent to Distribute, in violation of 21 U.S.C.
§ 841(a)(1); and one count of Carrying a Firearm During and in Relation to Drug Trafficking, in
1 Dkt. 70 (Motion to Vacate).
2 Id. at 5–6.
3 Dkt. 82 (Response in Opposition).
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violation of 21 U.S.C. § 924(c)(1)(A)(i).4 On April 29, 2017, Dalton was found in possession of
at least five grams of methamphetamine in addition to quantities of heroin, powder cocaine, and
“crack” cocaine.5 At the time, Dalton also carried an HS Products (IM Metal), model XDS, .45
caliber pistol.6
The State of Alaska charged Dalton with crimes related to the drugs and weapons found
on or near his person and, on May 4, 2017, a grand jury for the State of Alaska indicted Dalton on
the charges.7 Following the state grand jury indictment, the United States also filed a criminal
complaint against Dalton.8 On May 5, 2017, the Court held an initial appearance and appointed a
Federal Public Defender, Attorney Darrel Gardner (“Counsel”), to represent Dalton.9
On May 18, 2017, the federal grand jury returned a two count indictment, alleging one
count of Possession of a Controlled Substance with Intent to Distribute, under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); and one count of Carrying a Firearm During and in Relation to Drug
Trafficking, under 18 U.S.C. § 924(c)(1)(A)(i).10 Later, a Superseding Indictment was issued
which modified the charge in Count 1 to include a violation of 21 U.S.C. §§ 841(b)(1)(C).11
4 Dkt. 46 (Change of Plea Hearing).
5 Dkt. 39 at 4 (Plea Agreement).
6 Id. at 5.
7 State of Alaska v. Dalton, 3AN-17-03381CR.
8 Dkt. 1 (Complaint).
9 Dkt. 5 (Initial Appearance).
10 Dkt. 12 at 1 (Indictment).
11 Dkt. 23 at 1 (Superseding Indictment).
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Initially, Dalton pleaded not guilty to each count.12 However, after negotiating a Plea Agreement13
with the United States, Dalton filed a Notice of Intent to Change Plea on September 26, 2017.14
On October 10, 2017, Dalton pleaded guilty to both counts in the Superseding Indictment.15
On March 9, 2018, the Court accepted Dalton’s plea and sentenced him to a 180-month term of
imprisonment followed by a five-year term of supervised release.16 Dalton was also assigned a
$200 special assessment and ordered to forfeit $4,380.17 Dalton was represented by Counsel at his
preliminary hearing, arraignment and plea, and sentencing.18
Dalton filed the present Motion on September 11, 2018 setting forth two grounds for relief:
(1) that he received ineffective assistance of counsel in violation of the Sixth Amendment where
Counsel advised him to enter into the Plea Agreement when the Double Jeopardy Clause precluded
his federal prosecution; and (2) that he received ineffective assistance of counsel where Counsel
failed to challenge Count 2 of the Superseding Indictment on the basis that Dalton did not “use” a
firearm as required under 18 U.S.C. § 924(c).19 On Dalton’s motion, the Court appointed counsel
to represent Dalton in his § 2255 proceedings.20 On June 20, 2019, Dalton notified the Court that
12 Dkt. 28 (Arraignment).
13 Dkt. 39 (Plea Agreement).
14 Dkt. 41 (Notice of Intent to Change Plea).
15 Dkt. 46.
16 Dkt. 58 (Imposition of Sentence).
17 Id.
18 Dkts. 5, 14, 28, 46, and 58.
19 Dkt. 70 at 4–6.
20 Dkts. 74 and 76.
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he intended to rely on his initial § 2255 pleading.21 The United States then filed its Response on
August 19, 2019.22 The United States opposes Dalton’s Motion on each ground.23 The Motion has
been fully briefed and is now ripe for resolution.
III. 	LEGAL STANDARD
Under 28 U.S.C. § 2255(a), a district court may “vacate, set aside, or correct” a sentence
of a federal prisoner that was imposed in violation of the Constitution or a law of the United States.
On a motion for relief under 28 U.S.C. § 2255, “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make findings of fact and conclusions of law
with respect thereto.”24 If the Court determines that relief is warranted, “the court shall vacate and
set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.”25
However, “the district court may deny a § 2255 motion without holding an evidentiary
hearing if ‘(1) the petitioner’s allegations, accepted as true, would not entitle him to relief; or (2)
the allegations cannot be accepted as true because they are contradicted by the record, inherently
incredible, or allege conclusions rather than statements of fact.’”26 Thus, “if the record refutes the
21 Dkt. 81.
22 Dkt. 82.
23 Id. at 1.
24 28 U.S.C. § 2255(b).
25 Id.
26 United States v. Geozos, No. 3:06-CR-082-RRB-JDR, 2010 WL 4942571, at *2 (D. Alaska
Nov. 24, 2010) (quoting Dhillon Khosla, 28 U.S.C. § 2255 Checklist/Updated Supplement to
Habeas Corpus Outline 5 (2005)). See also Lopez-Lopez v. United States, No. CR 05-1242 TUC-
DCB, 2006 WL 2850055, at *1 (D. Ariz. Sept. 28, 2006) (“A district court shall summarily dismiss
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applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required
to hold an evidentiary hearing.”27 “Section 2255 requires only that the district court give a claim
careful consideration and plenary processing, including full opportunity for presentation of the
relevant facts.”28
A. 	Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is rooted in the Sixth Amendment right to
counsel, which is applicable at the plea-bargaining stage of a criminal proceeding.29 A defendant
asserting a claim of ineffective assistance of counsel must satisfy the two-pronged test defined in
Strickland v. Washington.30 Under that test, a defendant must show that (1) counsel’s performance
was deficient, i.e., “fell below ‘an objective standard of reasonableness;’”31 and (2) that the
deficiency was prejudicial to the defense, i.e., “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”32
In addressing the first element, judicial scrutiny of an attorney’s performance, especially
in hindsight, is highly deferential.33 Attorney conduct should be evaluated from the attorney’s
a § 2255 petition ‘[i]f it plainly appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to relief.’” (quoting Rule 4(b),
Rules Governing § 2255 Actions)).
27 Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
28 Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989) (internal quotations omitted).
29 Lafler v. Cooper, 566 U.S. 156, 162 (2012). See also Hill v. Lockhart, 474 U.S. 52, 58 (1985).
30 466 U.S. 668 (1984).
31 Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 688).
32 Strickland, 466 U.S. at 694. See also United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988).
33 Strickland, 466 U.S. at 689.
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perspective at the time of the representation.34 Generally, an attorney’s performance is strongly
presumed to fall within the wide range of reasonably professional, competent assistance.35 “The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by the defendant.”36
The second element, prejudice, “focuses on the question whether counsel’s deficient
performance renders the result of . . . the proceeding fundamentally unfair.”37 A reasonable
probability that the results of the proceeding would have been different is “a probability sufficient
to undermine confidence in the outcome.”38 A defendant must make a greater showing than simply
asserting an error that could theoretically have some effect on the outcome of the proceeding, but,
a showing by a preponderance of the evidence is not required by Strickland.39
Thus, a defendant must prove both deficient performance and consequent prejudice to
succeed in establishing ineffective assistance.40 The court may evaluate one or both prongs in
determining whether to grant a defendant’s habeas petition on these grounds. However, the court
34 Id.
35 Id.
36 Id. at 691.
37 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)
38 Strickland, 466 U.S. at 694.
39 Duncan v. Ornoski, 528 F.3d 1222, 1246 (9th Cir. 2008).
40 United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (“[P]etitioner bears the
burden of establishing both.”).
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need not inquire whether an attorney’s performance was deficient if such alleged deficiency could
not have resulted in prejudice under Strickland. 41
B. 	Ineffective Assistance of Counsel in Plea Agreements
“Because ‘an intelligent assessment of the relative advantages of pleading guilty is
frequently impossible without the assistance of an attorney’ . . . counsel have a duty to supply
criminal defendants with necessary and accurate information.”42 Where a petitioner alleges
ineffective assistance of counsel when entering into a plea agreement, “[t]he longstanding test for
determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent
choice among the alternative causes of action open to the defendant.’”43 For a guilty plea, a
petitioner can only “attack the voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was not within [the range of competence demanded of
attorneys in criminal cases].”44 In addition, to satisfy the prejudice prong of the Strickland standard
in the context of a guilty plea, a petitioner must “show the outcome of the plea process would have
been different with competent advice;” in other words, the petitioner must show “that there is a
41 Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
42 Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986), overruled on other grounds by United States v.
Rodriguez–Razo, 962 F.2d 1418 (9th Cir. 1992) (quoting Brady v. United States, 397 U.S. 742,
748 n.6 (1970)).
43 Signori, 844 F.2d at 638 (quoting Hill, 474 U.S. at 56).
44 Hill, 474 U.S. at 58 (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)).
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reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty
and would have insisted on going to trial.”45
IV. 	ANALYSIS
Dalton raises two grounds for ineffective assistance of counsel: first, that he received
ineffective assistance of counsel in violation of the Sixth Amendment where Counsel failed to
raise a double jeopardy claim; and second, that he received ineffective assistance of counsel where
Counsel failed to challenge Count 2 of the Superseding Indictment on the basis that Dalton did not
“use” a firearm as required under 18 U.S.C. § 924(c).46 The United States argues that each of
Dalton’s assertions are without merit.47 The Court discusses each of Dalton’s asserted grounds for
relief in turn.
A. 	Whether Counsel Was Ineffective for Failing to Advise Dalton of a Double Jeopardy
Claim
Dalton first argues Counsel was ineffective for failing to advise him that the United States
was precluded, under the Double Jeopardy Clause, from prosecuting him for the crimes alleged in
the Superseding Indictment because the state had previously indicted him for the same crimes.48
Dalton’s claim fails for two reasons: first, Dalton was not twice put in jeopardy; and second, even
if he was twice put in jeopardy, the dual sovereignty doctrine allows him to be prosecuted for the
45 Lafler, 566 U.S. at 163.
46 Dkt. 70 at 4–6.
47 Dkt. 82 at 1.
48 Dkt. 70 at 4.
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same conduct at the state and federal level.49 Therefore, Counsel was not ineffective for failing to
advise him on a double jeopardy claim, nor did any prejudice result.
1. 	Dalton Was Not Twice Put in Jeopardy
Dalton claims that he was twice put in jeopardy because “Dalton was being charged at the
same time in the Superior Court of the State of Alaska, and in the Federal District Court for the
same crime . . . .”50 The Double Jeopardy Clause, contained within the Fifth Amendment, protects
individuals from being twice put in jeopardy for the same offense.51 Under the Fifth Amendment,
jeopardy “attaches” when the trial jury is sworn or—in the case of a non-jury trial—when the first
witness is sworn. 52 It is well-settled that a defendant is not put in constitutional jeopardy when
there is more than one attempt to obtain a grand jury indictment.53
It is undisputed that Dalton was indicted by the State of Alaska and the United States for
crimes relating to the same conduct.54 However, a trial jury was not empaneled in the federal
49 See United States v. Traylor, 978 F.2d 1131, 1132 (9th Cir. 1992).
50 Dkt. 71 at 4 (Brief in Support of the Motion to Vacate).
51 Heath v. Alabama, 474 U.S. 82, 87 (1985).
52 Martinez v. Illinois, 572 U.S. 833, 841 (2014); Crist v. Bretz, 437 U.S. 28, 37 n.15 (1978) (citing
Serfass v. United States, 420 U.S. 377, 388 (1975)).
53See e.g. United States v. Williams, 504 U.S. 36, 49 (1992) (citing Ex parte United States, 287
U.S. 241, 250–251 (1932); United States v. Thompson, 251 U.S. 407, 413–415 (1920)) (“The
Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an
indictment when a prior grand jury has refused to do so.”)
54 Dalton was indicted by the State of Alaska on one count of Misconduct Involving Weapons in
the Second Degree, one count of Misconduct Involving Weapons in the Third Degree, and three
counts of Misconduct Involving a Controlled Substance in the Second Degree. Dkt. 71-3 (State
Indictment). The federal grand jury indicted Dalton on one count of Possession of a Controlled
Substance with Intent to Distribute and one count of Carrying a Firearm During and in Relation to
a Drug Trafficking Crime. Dkt. 23. Both indictments concerned the same conduct which occurred
on April 29, 2017. Dkts. 23 and 71.
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case.55 Nor has Dalton put on evidence that a trial jury was sworn in his state case. In fact, the
evidence that he provides suggests that all charges were dismissed before proceeding to trial.56
Only the federal case moved forward and Dalton ultimately agreed to plead guilty rather than
submit the case to a jury. Therefore, Dalton has not shown that he was twice put in jeopardy.
Accordingly, Dalton cannot prove that Counsel’s assistance was objectively unreasonable for
failing to advise him on a double jeopardy claim that never materialized and Dalton cannot show
that he was prejudiced as a result.
2. 	Dalton’s Double Jeopardy Claim Would Have Failed Under the Dual Sovereignty
Doctrine
Even if Dalton had shown that he was twice put in jeopardy for the same offense, his claim
would have failed. “Under the dual sovereignty doctrine, successive prosecutions by separate
sovereigns for crimes arising out of the same acts are not barred by the Double Jeopardy Clause.”57
The dual sovereignty doctrine considers that “[w]hen a defendant in a single act violates the ‘peace
and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct
‘offences.’”58 To determine whether the dual sovereignty doctrine allows for a second prosecution,
courts must look to “whether the two [prosecuting] entities draw their authority to punish the
offender from distinct sources of power.”59
55 Dkt. 46.
56 Dkt. 71-2 (State Dismissal). See State of Alaska v. Dalton, 3AN-17-03381CR (2017). The
charges were dismissed pursuant to Alaska R. Crim. P. 43(a)(1), which allows the prosecutor to
dismiss the charges prior to trial without the permission of the defendant. Dkt. 71-2.
57 Traylor, 978 F.2d at 1132 (citing Heath, 474 U.S. at 88).
58 Id. (quoting Heath, 474 U.S. at 88 (quoting United States v. Lanza, 260 U.S. 377, 382 (1922))).
59 Heath, 474 U.S. at 88.
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Here, Dalton was charged in the Superior Court for the State of Alaska for violations of
state law.60 Subsequently, Dalton was charged by the United States for violations of federal law.61
Although the charges related to the same conduct, each prosecuting entity relied on its own,
separate authority to prosecute Dalton. Therefore, even if jeopardy had attached in either his state
or federal case, the Double Jeopardy Clause would not have barred prosecutions sought by the
two, separate entities. Accordingly, Counsel was not ineffective for failing to raise the issue and
Dalton suffered no prejudice.
B. 	Whether Counsel Was Ineffective for Failing to Investigate the Requirement Whether
Dalton’s Conduct Violated 18 U.S.C. § 924
Dalton claims that Counsel was ineffective for failing to provide competent advice in light
of the Supreme Court’s holding in Bailey v. United States.62 Dalton asserts that had Counsel
advised him on the holding of Bailey, he would not have pleaded guilty to Count 2 “and would
have insisted on going to trial.”63 In order to prevail on his claim, Dalton must show that Counsel
did not advise him about Bailey, that the failure to advise him about Bailey fell below the objective
standard of reasonableness espoused by Strickland, and that Dalton suffered prejudice because of
Counsel’s failure.64
Title 18 U.S.C. § 924(c)(1)(A) punishes any person who, during a drug trafficking crime,
“uses,” “carries,” or “possesses” a firearm. Bailey interpreted what constitutes “use” of a firearm
60 Dkt. 71-3.
61 Dkt. 23.
62 516 U.S. 137 (1995).
63 Dkt. 71 at 9.
64 See, e.g., Silva, 279 F.3d at 836.
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under § 924(c)(1)(A).65 Specifically, Bailey held that evidence of mere possession or concealment
of a firearm for later use does not constitute “use” under § 924(c)(1)(A).66 The Bailey Court
expressly did not interpret the meaning of “carry” under the statute. 67 Dalton was charged under
§ 924(c)(1)(A)(i) with carrying a HS Products (IM Metal), model XDS, .45 caliber pistol, serial
number: XS686107, during and in relation to the crime of possession with intent to distribute a
controlled substance.68 Bailey turns on a statutory term—i.e. “use”—that is inapposite to Dalton’s
charge, which solely relies on the “carry” language under § 924(c)(1)(A).69 For this reason, the
Court finds that Dalton’s overarching claim must fail.
First, assuming Counsel failed to advise Dalton regarding Bailey, it is not objectively
unreasonable for an attorney to refrain from discussing a case which is arguably irrelevant to their
client’s case. Second, even if failure to discuss Bailey with Dalton was deficient performance, it
did not prejudice Dalton. The Plea Agreement correctly stated the elements that the United States
had the burden to prove at trial “1) the defendant committed the crime of possession with intent to
distribute, as alleged in Count 1 of the indictment; 2) the defendant knowingly carried a firearm
during and in relation to that drug trafficking crime.”70 Therefore, despite Counsel’s alleged
65 Bailey, 516 U.S. at 151.
66 Id.
67 Id.
68 Dkt. 23.
69 It also bears noting that Congress reversed Bailey by amending § 924(c)(1)(A) to include
“possession” as well as “use.” See Welch v. United States, 136 S. Ct. 1257, 1267 (2016); United
States v. O’Brien, 560 U.S. 218, 233 (2010) (discussing the 1998 amendment colloquially known
as the “Bailey Fix Act”). This further demonstrates that Bailey’s holding is inapposite to Dalton’s
case.
70 Muscarello v. United States, 524 U.S. 125, 139 (1998) (“In sum, the ‘generally accepted
contemporary meaning’ of the word ‘carry’ includes the carrying of a firearm in a vehicle. The
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failure, Dalton was accurately and adequately informed of the elements the United States would
have had to prove at trial. With this knowledge, Dalton chose to enter a guilty plea.71 Accordingly,
Counsel was not ineffective for failing to advise Dalton on Bailey, and Dalton suffered no
prejudice.
Dalton has not shown that he was denied adequate representation as guaranteed under the
Sixth Amendment. Accordingly, he is not entitled to relief under § 2255 on the grounds asserted
in the Motion.
V. 	CERTIFICATE OF APPEALABILITY
A certificate of appealability (“COA”) is required to appeal a petition brought under 28
U.S.C. § 2255.72 Under the Federal Rules Governing § 2255 procedures, “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”73
Where a petitioner makes “a substantial showing of the denial of a constitutional right,” a COA
should be issued.74 This standard requires that the petitioner “demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues in a different manner; or
that the questions are adequate to deserve encouragement to proceed further.”75 Dalton’s Motion
purpose of [924(c)] warrants its application in such circumstances. The limiting phrase ‘during
and in relation to’ should prevent misuse of the statute to penalize those whose conduct does not
create the risks of harm at which the statute aims.”).
71 Dkt. 46.
72 28 U.S.C. § 2253(c)(1)(B); United States v. Asrar, 116 F.3d 1268, 1269 (9th Cir. 1997).
73 Rules Governing § 2255 Proceedings, Rule 11(a).
74 28 U.S.C. § 2253(c)(2).
75 United States v. Greene, No. 3:09-CR-00053-1-TMB, 2015 WL 13670726, at *1 (D. Alaska
Apr. 14, 2015) (quoting Muth v. Fondren, 676 F.3d 815, 822–23 (9th Cir. 2012)).
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does not meet this standard. Dalton’s Motion is without merit, and his factual contentions are
contradicted by the record before the Court. Accordingly, the Court declines to issue a certificate
of appealability in this action.
VI. 	CONCLUSION
For the forgoing reasons, Dalton’s Motion to Vacate is DENIED.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 21st day of October, 2019
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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