USA v. Cooks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BILLY JAMES COOKS,
Defendant.
Case No. 3:14-cr-00042-SLG
ORDER RE SECTION 2255 PETITION
Before the Court is Defendant Billy James Cooks’ Motion to Vacate Under 28
U.S.C. § 2255 at Docket 112 and Mr. Cook’s First Amended Motion to Vacate Under 28
U.S.C. § 2255 and Request for Evidentiary Hearing at Docket 139.1 	The Government
responded at Docket 141. Mr. Cooks filed a reply at Docket 142.
BACKGROUND
On May 22, 2014, Mr. Cooks was indicted for Drug Trafficking Conspiracy in
violation of 21 U.S.C. §§ 846 and 841(a)(1) and Conspiracy to Launder Monetary
Instruments in violation of 18 U.S.C. § 1956(h).2 	On December 11, 2014, Mr. Cooks
entered into a Plea Agreement with the Government pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), pleading guilty to both counts.3 The parties agreed that the five-
1 See also Docket 140 (Mem. in Support of Motion to Vacate).
2 Docket 96 (PSR) at 8.
3 Docket 67 (Plea Agreement) at 2.
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year mandatory minimum penalty for the drug trafficking charge applied to Mr. Cooks
rather than the ten-year mandatory minimum.4 Mr. Cooks also waived his right to appeal
and all rights to file a § 2255 motion except on the grounds of ineffective assistance of
counsel or the voluntariness of his plea.5 	The Plea Agreement contained two distinct
provisions regarding sentencing. First, in Part A, it addressed the “Advisory United States
Sentencing Guidelines,” and stated that “[t]he parties have no agreements on any
guideline applications unless set forth below in [the Acceptance of Responsibility
subsection].”6 Second, in Part B, it stated that “[p]ursuant to Fed. R. Crim. P. 11(c)(1)(C),
the parties agree that a sentence of between (60) and one hundred fifty six (156) months
of incarceration is appropriate.”7
DISCUSSION
Mr. Cooks asserts two grounds for vacating his sentence under 28 U.S.C. § 2255:
(1) he did not enter a guilty plea knowingly and voluntarily; and (2) his trial counsel was
ineffective in not objecting to the Government’s alleged breach of the Rule 11(c)(1)(C)
agreement and in not objecting to the criminal history calculation in the Presentence
Report (“PSR”), which listed a felony conviction that had been set aside. The Government
asserts that Mr. Cooks’ motion was filed beyond the one-year statute of limitations period
and therefore is untimely. It also maintains that Mr. Cooks’ arguments fail on the merits.
4 Docket 67 at 2.
5 Docket 67 at 3.
6 Docket 67 at 12.
7 Docket 67 at 13.
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1. Timeliness
Pursuant to 28 U.S.C. § 2255(f)(1), a federal petitioner must file a habeas petition
within one year from the date judgment of conviction becomes final unless the petitioner
can demonstrate equitable tolling is applicable. “[T]he threshold necessary to trigger
equitable tolling . . . is very high.”8 	To satisfy equitable tolling, a petitioner must show
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.”9
Mr. Cooks’ final judgment was filed on February 12, 2016.10 	The statute of
limitations for filing his habeas petition expired on February 26, 2017.11 Mr. Cooks filed
his habeas petition on April 20, 2017, after the statute of limitations period had expired.12
Mr. Cook argues that the statute of limitations should be equitably tolled.13 	Because, as
discussed below, the Court finds that on the merits Mr. Cooks is not entitled to relief, the
Court will assume without deciding that equitable tolling would apply.
8 Medonza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006).
9 Holland v. Florida, 560 U.S. 631, 649 (2010).
10 Docket 109 (J.).
11 Mr. Cooks had 14 days to file a notice of appeal from the date of the judgment of conviction.
Fed. R. App. Proc. 4(b)(1)(A). When the movant does not file a direct appeal, “the statute of
limitations within which she had to file her § 2255 motion began to run upon the expiration of the
time during which she could have sought review by direct appeal.” United States v. Schwartz, 274
F.3d 1220, 1223 (9th Cir. 2001).
12 Docket 112.
13 Docket 142 at 2.
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2. Knowing and Voluntary Plea
Mr. Cooks asserts that his “guilty plea [was] not knowing and intelligently entered
into due to trial counsel’s misadvisement and ineffective assistance in violation of Sixth
Amendment 	and 	Due 	Process.”14 	Specifically, 	he 	maintains 	that 	trial 	counsel
misinformed him that pleading guilty to Drug Trafficking Conspiracy and Conspiracy to
Launder Monetary Instruments would give him a sentencing range between 60 and 156
months’ imprisonment. He points to the U.S. Sentencing Commission’s Guidelines range
set forth in the PSR and adopted by the Court, which was 135 to 168 months’
imprisonment.15 	The Government responds that “this Court took great care to ensure
that Cooks understood the nature of the charge against him and that he entered his pleas
knowing and voluntary.”16
The parties agreed in their Plea Agreement that Mr. Cooks would be sentenced to
“a period of incarceration of between sixty (60) and one hundred and fifty six (156)
months’ imprisonment.”17 At the plea hearing, the following colloquy occurred:
The Court: So as I understand the basic agreement here, it is that Mr. Cooks
would plead guilty to both counts in the indictment, the parties would agree
that the five-year mandatory minimum penalty would apply here, not a ten-
year mandatory minimum penalty, and there’s a C agreement, meaning—
which I’ll discuss what that all means with Mr. Cooks here, but basically,
that the sentence would be—the parties agree the sentence would be a
range of incarceration of between 60 months and 165 months –
Mr. Dudley: 156 months, I believe, Your Honor.
14 Docket 139 at 5.
15 Docket 139 at 5.
16 Docket 141 at 7–8.
17 Docket 67 at 2. See also Docket 67 at 13.
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Ms. Sayers-Fay: That’s correct.
The Court: Thank you. 156 months, that’s very correct, 60 to 156 . . . So Mr.
Cooks, do you understand that to be the basic agreement between you and
the Government?
The Defendant: Yes.18
Later in the change of plea hearing, the Court discussed the Sentencing Guidelines with
Mr. Cooks as follows:
The Court: . . . As I indicated, this carries—the first charge carries a
mandatory minimum of five years. So under the law, that would be the base
point. In terms of whether the sentence should be at that mandatory
minimum or higher, there are guidelines that are put out by the Sentencing
Commission. They basically take—it’s a chart that has the nature of the
crime on one axis and then the person’s criminal history on another, and it
gives the range of sentence based on those two factors to look at.
Then there are other factors that are set out in the law, 18 United States
Code 3553(a) that give guidance to help a court determine if a sentence
should be above or below or within that guideline range.
Have you had a chance to talk about these issues with your attorney, Mr.
Dudley?
The Defendant: Yes.19
At the subsequent sentencing hearing, the parties agreed on the Guidelines
calculation:
The Court: With that all said, terms of the guideline calculation, it didn’t
appear that there were disputes there either with what the probation officer
computed; am I correct from both sides?
Mr. Edmonds: Yes, Your Honor.
Mr. Dudley: Yes, Your Honor.
18 Docket 115 (Change of Plea Tr.) at 10–11.
19 Docket 115 at 15–16.
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The Court: So that ends up, then, with a guideline range of a total offense
level of 31 a criminal history Category III, which results in a guideline range
of 135 to 168 months on the two counts to run concurrent[.]20
Thus, the parties agreed in their Rule 11(c)(1)(C) agreement to a sentencing range
from 60 to 156 months, which Mr. Cooks acknowledged at the change of plea hearing.
But in their Plea Agreement, the parties did not agree, or disagree, on the “Advisory
United States Sentencing Guidelines.”21 The Court accepted the parties’ Rule 11(c)(1)(C)
agreement, thereby agreeing to impose a sentence within the parties’ agreed-upon range
of 60 to 156 months.22 The Court imposed a sentence of 156 months, which was within
the parties’ agreed-upon range (and also within the Sentencing Guidelines range). Based
on the foregoing, it is clear that when Mr. Cooks entered his change of plea, he did so
knowingly and voluntarily. 	The parties’ agreement reflects and Mr. Cooks testified to a
clear understanding of the distinction between the agreed-upon sentencing range in his
agreement with the government and the then-uncalculated potential advisory sentencing
range of the U.S.S.G. 	Therefore, Mr. Cooks’ argument that his guilty plea was not
knowingly and voluntarily made is unavailing.
2. 	Ineffective Assistance of Counsel
Mr. Cooks also asserts that his trial counsel was ineffective because he “failed to
explain to movant that the government would begin its argument with the assumption he
had pled to an offense with mandatory minimum sentence of 120 months, at a Criminal
20 Docket 115 at 4.
21 See Docket 67 at 12. (“The parties have no agreements on any guideline applications except
as set forth below in [the Acceptance of Responsibility section].”).
22 See Freeman v. United States, 564 U.S. 522, 527 (2011).
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History level of III. 	Nor did trial counsel advise movant that the probation officer would
incorrectly determine his criminal history to be III.”23
To prevail on an ineffective assistance claim, a petitioner must satisfy the two-
prong Strickland test, which requires a showing of both deficient performance and
resultant prejudice.24 	Deficient performance requires a showing that trial counsel's
representation fell below an objective standard of reasonableness as measured by
prevailing professional norms.25 	There is a “strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.”26 	To establish
prejudice, a petitioner must show a reasonable probability that “but for counsel's
unprofessional errors, the result of the proceeding would have been different.”27 Failure
to meet either prong is fatal to a petitioner’s claim.28
Mr. Cooks asserts that trial counsel was ineffective because he failed to object to
the Government’s alleged breach of the Plea Agreement. However, the Government did
not breach the Plea Agreement. 	At sentencing, the Government stated, “In the plea
agreement, as the Court stated, we’ve agreed to a range of 60 to 156 months, and Your
23 Docket 140 at 8–9.
24 466 U.S. 668, 687 (1984).
25 See Wiggins v. Smith, 539 U.S. 510, 521 (2003).
26 Strickland, 466 U.S. at 689.
27 Strickland, 466 U.S. at 694.
28 Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 2011) (quoting Strickland, 466 U.S. at 697)
(“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.’”).
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Honor, I ask for every one of those 156 months for this defendant.”29 Accordingly, there
was no breach of the Rule 11(c)(1)(C) agreement and thus, there was no deficient
performance by trial counsel in that regard.30
Mr. Cooks also maintains that trial counsel was ineffective in failing to object to the
PSR’s criminal history.31 	Mr. Cooks is correct that Count 1: Pandering a Child was set
aside by the Nevada state court and should not have been listed as a conviction in the
PSR.32 However, Count 2: Living from the Earnings of a Prostitute was not set aside; Mr.
Cooks pleaded guilty to this charge and was sentenced to 12 to 36 months for that
crime.33 Accordingly, the PSR did not err in assessing three points for this conviction in
Mr. Cooks’ criminal history. 	Therefore, even if trial counsel was ineffective in failing to
object to the inclusion of Count 1, Mr. Cooks has not shown any prejudice because the
criminal history level would not have been different had Count 1 been excluded.
29 Docket 111 at 6.
30 Mr. Cooks also asserts that trial counsel did not provide “reasonable information to the client
considering a plea offer and its consequences.” Docket 140 at 12. However, Mr. Cooks has not
identified “material, specific errors and omissions that fall outside the wide range of professional
competent assistance.” United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991) (citations
and quotations omitted).
31 Docket 140 at 10.
32 Docket 140-1 (Order Granting Defendant’s Petition for Writ of Habeas) at 3–8; see also
U.S.S.G. § 4A1.2, Application Note 6 (“Sentences resulting from convictions that . . . have been
ruled constitutionally invalid in a prior case are not to be counted.”).
33 Docket 96 at 15, ¶ 46; see also Docket 112-1 at 2. Although U.S.S.G. § 4A1.1(a) provides “Add
3 points for each prior sentence of imprisonment exceeding one year and one month,” U.S.S.G.
§ 4A1.2(b) further states, “The term ‘sentence of imprisonment’ means a sentence of incarceration
and refers to the maximum sentence imposed.” 	Therefore, for purposes of the sentencing
guidelines, Mr. Cooks’ Living from the Earnings of a Prostitute conviction resulted in a maximum
36-month sentence and three points were correctly included for that crime in Mr. Cooks’ criminal
history.
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Because the record conclusively shows that Mr. Cooks is not entitled to relief, Mr. Cooks
is not entitled to an evidentiary hearing.34
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant Billy James Cooks’
Motion to Vacate at Docket 112 and his Amended Motion to Vacate at Docket 139 are
DENIED.
The Court further finds that Mr. Cooks has not made the requisite substantial
showing for a Certificate of Appealability, and therefore, a Certificate of Appealability will
not be issued by this Court.35
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 5th day of April, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
34 See 28 U.S.C. § 2255(b).
35 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be granted
only if the applicant has 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 quotation marks and citations omitted)).
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