USA v. Avery

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MARK J. AVERY,
Defendant.
Case No. 3:07-cr-00028-RRB
FINAL ORDER
DENYING MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE
Docket 623
I. 	INTRODUCTION
At Docket 684, this Court resolved most of the current matters before the
Court that were raised by Defendant, Mark J. Avery, in both his pro se claims, asserted at
Docket 	623, 	and 	the 	subsequent 	Amended 	Motion 	filed 	by 	appointed 	counsel 	at
Docket 641. The facts hereof are not in great dispute and have been previously addressed.
Furthermore, an entire transcript of the proceedings, including the recent evidentiary
hearing, has been produced and is available to the parties. Therefore, they will not be again
reviewed here unless necessary to resolve an issue.
Still to be resolved is Claim 5 of the original motion filed pro se by
Defendant. This was addressed by the Court beginning on page 23 of the aforesaid order
at Docket 684. 	This claim raised issues as to Defendant’s Sixth Amendment Right to
Effective Assistance of Counsel—M. Dieni. Michael Dieni (“Defense counsel”), was the
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eighth attorney appointed to represent Defendant since this matter first arose when an
Information was filed against Defendant in March 2007. 	Periodically throughout,
Defendant, who is an attorney himself, participated pro se. 	Defense counsel represented
Defendant beginning in October 2013, and continued to represent Defendant through trial
and until after the sentencing in this matter was completed. He was permitted to withdraw
as attorney of record and new counsel was appointed in May 2016.
As 	indicated 	in 	the 	Court’s 	order 	at 	Docket 	684, 	although 	most 	of
Defendant’s claims could be resolved without a hearing, the Court could not fully address
the current claim regarding effectiveness of counsel because some of the allegations
involved matters occurring outside the record. 	Therefore, the Court held an evidentiary
hearing on July 11, 2023. Each party filed closing arguments on July 28, 2023.1
The issue remaining for the Court to resolve is whether Defendant was
deprived of effective assistance of counsel because of Defendant’s mental health issues at
the time in question and/or because of communication challenges between client and
counsel as trial approached such that it prejudiced Defendant and impacted the outcome of
the trial.
II. 	LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody pursuant to a sentence
imposed by a United States federal court may file a motion to vacate, set aside, or correct
his sentence on the ground that “the sentence was imposed in violation of the Constitution
1 Dockets 705, 706.
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or laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”2
“Unless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.”3 “If the motion is not
dismissed, the judge must review the answer, any transcripts and records of prior
proceedings, and any materials submitted . . . to determine whether an evidentiary hearing
is warranted.”4 “The district court may deny a section 2255 motion without an evidentiary
hearing only if the movant’s allegations, viewed against the record, either do not state a
claim for relief or are so palpably incredible or patently frivolous as to warrant summary
dismissal.”5
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.”6 	“The ‘general rule’ is that
constitutional errors do not require reversal of a conviction, but are susceptible to harmless
2 28 U.S.C. § 2255(a).
3 28 U.S.C. § 2255(b).
4 Rule 8(a), Rules Governing Section 2255 Proceedings for the United States District
Courts. 5 United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (per curiam); see also
United States v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022) (“[A] hearing is mandatory
whenever the record does not affirmatively manifest the factual or legal invalidity of the
petitioner’s claims.” (quoting Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982)).
6 28 U.S.C. § 2255(b).
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error review.”7 A constitutional violation usually is harmless unless, “in light of the record
as a whole,” the violation had “a substantial and injurious effect or influence in determining
the jury’s verdict.”8 “This inquiry is not a matter of pure logic, but of sensitive judgment
based on the case presented to the jury by the prosecution and defense.”9
III. 	DISCUSSION
Claims of ineffective assistance of counsel generally are analyzed under the
familiar standard of Strickland v. Washington.10 	To establish a claim for ineffective
assistance 	of 	counsel 	under 	the 	Sixth 	Amendment, 	a 	petitioner 	must 	show 	that
(1) “counsel’s representation fell below an objective standard of reasonableness,” and
(2) “any deficiencies in counsel’s performance must [have] be[en] prejudicial to the
defense.”11
The Government’s focus at the evidentiary hearing was on the Strickland
standards, arguing that the quality of defense provided to Defendant clearly satisfied
Strickland and that any communication breakdown was short term, was one-sided, and did
not impact the quality of the defense or the outcome of the case. The Government contends
that any communication breakdown, as trial approached, was solely due to Defendant and
7 United States v. Montalvo, 331 F.3d 1052, 1056–57 (9th Cir. 2003) (per curiam)
(quoting Arizona v. Fulminante, 499 U.S. 279, 306–07 (1991)).
8 Id. at 1057–58 (emphasis removed) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)). 	Certain “structural” constitutional errors are never harmless. 	These include total
deprivations of the right to counsel at trial, a judge who was not impartial, unlawful exclusion of
members of the defendant’s race from a grand jury, violations of the right to self-representation at
trial, and violations of the right to a public trial. Id. at 1057.
9 Id. at 1058.
10 466 U.S. 668 (1984).
11 Id. at 688, 692.
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that Defense counsel 	remained available to Defendant throughout. 	Moreover, the
Government sets forth, at length, the many things that Defense counsel did on behalf of
Defendant and the high quality of defense that counsel provided.
Defendant contends that regardless of Strickland, the conviction should be
vacated pursuant to United States v. Frazer12 and its progeny. In Frazer, the Ninth Circuit
found that the “duty of loyalty” that appointed counsel has under the Sixth Amendment
with respect to his or her client includes “channels of open communication” in order to
“function as contemplated in the Constitution.”13 The Frazer court concluded that in cases
where the Sixth Amendment defect was sufficiently egregious, a “presumption of prejudice
[would be] appropriate without inquiry as to the actual conduct of the trial.”14 Defendant
argues here that regardless of Strickland and regardless of the quality of defense, the facts
produced at the evidentiary hearing established a “complete breakdown” of communication
between attorney and client such that Defendant essentially went to trial unrepresented and
that, therefore, the conviction should be set aside.
IV. 	FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court finds that the defense provided by Defense counsel was not
defective under Strickland. On the contrary, given the difficult facts counsel had to work
with, the defense provided was extraordinary and certainly satisfied each component of the
Strickland test. 	Therefore, because the Court does not find that the defense provided
12 18 F.3d 778 (1994).
13 Id. at 785.
14 Id. (citation omitted).
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Defendant was deficient, and because any deficiency that may have existed did not
prejudice Defendant or impact the outcome of the trial, the Court is inclined to deny the
instant motion subject only to a Frazer evaluation.
The evidentiary hearing conducted in this matter focused on Defendant’s
Frazer arguments and revealed communication challenges between attorney and client as
trial approached, as well as disagreements as to trial strategy and as to whether to resolve
the case before trial. These disagreements led to harsh words by Defense counsel as to the
merits of Defendant’s ideas, which Defendant appears to have taken personally. However,
the Court cannot find that the Frazer factors, or any of its progeny, come into play under
these facts. 	Any communication breakdown here was limited to shortly before trial and
was based largely on a disagreement as to trial strategy and came after extensive trial
preparation was completed. 	Moreover, the communication breakdown was one sided.
Defense counsel, while displaying poor “bed-side manner” at times, remained available to
Defendant throughout the trial, as did his legal assistant. 	Defendant simply chose not to
further communicate with counsel.
Unlike in Frazer, while Defense counsel understandably disagreed with
Defendant’s proposed trial strategy, counsel did not attack Defendant personally or
disparage his race or person, nor did Defense counsel give up on the case, indicate a desire
to lose, or side with the prosecution. 	As an attorney with extensive trial experience, and
given his past experiences with appointed counsel, Defendant should have expected such
vigorous discussions. In any event, Defense counsel repeatedly apologized and proceeded
to represent Defendant vigorously. Defense counsel’s focus throughout was on obtaining
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the best possible result for Defendant. There certainly was not a “complete breakdown” of
attorney client relations as envisioned by Frazer. Despite roughly two years of loyal and
dedicated service by Defense counsel, Defendant, on his own volition, chose to withdraw
from discussions with his attorney shortly before trial, while Defense counsel continued
vigorous 	trial 	preparation. 	Nevertheless, 	Defense 	counsel 	stood 	face-to-face 	with
Government counsel, literally and figuratively, throughout trial and vigorously fought on
his client’s behalf.
Moreover, Defense counsel’s loyalty could not be questioned, nor could his
desire for a favorable result for his client. 	As it turned out, thanks to Defense counsel’s
efforts, Defendant was only convicted of ten of the seventeen counts against him, and
despite compelling victim impact statements, Defendant received a sentence which was 75
months below the bottom of the sentencing guideline range. To the extent that there was a
breakdown in communication between the parties, it was not at all visible to the Court
during the trial and was easily curable if Defendant so desired. Furthermore, it is generally
appropriate for a defense counsel to utilize his preferred trail strategy.15
Importantly, the Court has not seen any evidence to suggest that any of
Defendant’s proposed strategies were of merit or that any other attorney would have
employed a better strategy than was employed here. Nor is there anything now before the
Court to suggest that a different result would have been obtained had Defendant’s strategies
been employed or had there been better communication between counsel and client, or had
15 See United States v. McKenna, 327 F. 3d 830, 843–44 (9th Cir. 2003).
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the trial been further delayed. 	And the Court is not aware of any mental health issues
affecting Defendant at the time of trial that could have impacted the strategy employed or
the results of the trial. 	Defendant sat through the entire trial and responded clearly to
questions put to him frequently by the Court. 	Defendant’s lengthy trial testimony was
thorough and failed to disclose any mental health issues or deficiencies. Finally, any defect
that may have occurred here, which the Court does not find, certainly was not egregious as
required by Frazer.
V. 	CONCLUSION
It is difficult see how any other attorney could have provided a better defense
than was provided here. 	In fact, in the thirty plus years on the bench, the Court has not
observed a more zealous defense. Therefore, for all the reasons cited above, as well as for
the reasons argued by the Government, Defendant’s Motion to Vacate, Set Aside or Vacate
Sentence is hereby DENIED.
VI. 	CERTIFICATE OF APPEALABILITY
This Court concludes that Defendant has not made a substantial showing of
the denial of a constitutional right, and that reasonable jurists could not debate the validity
of Defendant’s argument. 	Therefore, the Court denies the issuance of a Certificate of
Appealability as to the claims set forth above.
IT IS SO ORDERED this 15th day of August, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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