USA v. Ducasse

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Respondent,
v.
HIRAM LUIS DUCASSE,
Petitioner.
Case No. 3:16-cr-00017-SLG
ORDER RE SECTION 2255 PETITION
Before the Court at Docket 77 is Defendant Hiram Luis Ducasse’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. 	The government opposed at Docket 103. 	Mr. Ducasse replied
at Docket 112.
MOTION PRESENTED
On June 20, 2017, Petitioner Hiram Luis Ducasse pled guilty to one count
of 	Conspiracy 	to 	Possess 	and 	Distribute 	Heroin 	and 	one 	count 	of 	Heroin
Possession with Intent to Distribute.1 He was later sentenced to 20 years federal
imprisonment followed by six years supervised release.2 Mr. Ducasse timely filed
1 Docket 47 at 3 (Plea Agreement); Docket 84 (Change of Plea Transcript).
2 Docket 70 at 2-3 (Judgment).
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a 	Habeas 	Corpus 	Petition 	under 	28 	U.S.C. 	§ 	2255, 	seeking 	to 	vacate 	his
sentence.3
FACTUAL BACKGROUND
1. 	Underlying facts
At his change of plea hearing, Mr. Ducasse admitted the truth of the following
facts4:
On November 30, 2015, Mr. Ducasse—while on felony probation—sold a
half gram of heroin to a buyer in Wasilla.5 The buyer used some of the heroin with
a friend, who had gone with him to the sale, and then returned to his father’s
home.6 	Text messages between the buyer and the friend indicate that the buyer
did not leave the house again that night.7 	He was found dead the next morning
with at least one needle mark in his arm.8 An autopsy later indicated that he had
died by heroin overdose.9 	Over the next few days, the buyer’s family found a
3 Docket 77.
4 Docket 84 at 33 (Transcript of Plea Hearing); see also Docket 112 at 3 (“Mr. Ducasse
accepts the government’s narrative of the offense conduct of this case . . . .”).
5 Docket 47 at 5.
6 Docket 47 at 5–6.
7 Docket 47 at 6.
8 Id.
9 Id.
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hypodermic syringe, a spoon, and a small baggie containing a dark substance—
later determined to be heroin—in his closet.10
Police recorded a call between the buyer’s friend and Mr. Ducasse on
December 2, 2015, pursuant to a Glass warrant.11 	On the call, Mr. Ducasse
learned of the buyer’s death and admitted selling him heroin.12 Police obtained a
search warrant for Mr. Ducasse’s residence and found “scales, approximately 1-2
ounces of heroin, cash . . . and packaging materials” therein.13 	Among the
packaging materials were baggies identical to those found in the buyer’s closet.14
2. 	Procedural history
Mr. Ducasse was indicted on three counts: 	(1) conspiracy to distribute,
possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1)
and (b)(1)(C); (2) distribution of heroin resulting in serious bodily injury and death,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) possession of controlled
substances 	with 	intent 	to 	distribute, 	in 	violation 	of 	21 	U.S.C. 	§ 	841(a)(1),
10 Docket 47 at 6–7.
11 Docket 47 at 7; see State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (“[A] search
warrant should be required before permitting electronic monitoring of conversations.”).
12 Docket 47 at 7.
13 Docket 47 at 8.
14 Id.
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(b)(1)(C).15 	The indictment made no reference to the specific amount of heroin
seized from Mr. Ducasse.16
Steven Wells was initially appointed as defense counsel for Mr. Ducasse.17
The defense sent samples of the heroin from Mr. Ducasse’s and the buyer’s
residences to an independent laboratory for testing.18 But issues delayed the test,
and the laboratory “exceeded the time authorized by the original expert request”
to produce its report.19 	Steven Wells also notified the Court that the Criminal
Justice Act administrator had sought clarification of some of the laboratory’s
charges, and that he had “request[ed] additional funding to obtain a final report.”20
Although it appears that the testing was done and that preliminary results of the
testing were sent to the defense,21 no expert report was filed.
On February 27, 2017, Steven Wells moved to withdraw as counsel for Mr.
Ducasse, claiming that “[t]he attorney-client relationship ha[d] become irretrievably
15 Docket 2 (Indictment).
16 See Id.
17 Docket 10 (Notice of Appearance).
18 Docket 24 at 1 (Stipulation of Evidence); see also Docket 112-1 at 1–3, ¶ 5 (Affidavit
of Petitioner).
19 Docket 33 at 2 (Motion to Withdraw); see also Docket 27 at 1 (Status Report)
(explaining that lab technician had medical issues).
20 Docket 33 at 2.
21 See, e.g., Docket 112-2 at 3 (Steven Wells letter) (discussing test results).
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broken.”22 	In a letter from the same day, Steven Wells notified Mr. Ducasse that
he 	would 	seek 	to 	withdraw 	as 	counsel 	due 	to 	their 	“complete 	inability 	to
communicate” and Mr. Ducasse’s desire to retain a new attorney.23 	The letter
described their disagreement over whether Mr. Ducasse should accept a plea offer
from the government.24 Among other things, Steven Wells said that the maximum
penalty under the plea would be 20 years, but that “[t]he government has informally
indicated that it will likely seek a sentence of less than the maximum, something in
the neighborhood of fifteen (15) years.”25 He recognized that Mr. Ducasse hoped
for a ten-year sentence, but reasoned that “accepting this plea offer would accept
the fact that you might get a couple of years more than the ten years you are willing,
but the maximum would be 20 years.”26
Lance Wells entered an appearance as Mr. Ducasse’s new defense counsel
on March 21, 2017.27 	On June 19, 2017, the parties filed a plea agreement with
the Court.28 	Under the agreement, Mr. Ducasse would plead guilty to Counts 1
22 Docket 33 at 1–2. The Court granted the motion to withdraw on March 9, 2017.
Docket 39.
23 Docket 112-2 at 5.
24 See Docket 112-2 at 2–5.
25 Docket 112-2 at 4.
26 Id.
27 Docket 42.
28 Docket 47.
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(conspiracy to possess and distribute heroin) and 3 (heroin possession with intent
to distribute) and the government would dismiss Count 2 (heroin distribution
resulting in serious bodily injury or death) at sentencing.29 The parties also agreed
that Mr. Ducasse was “responsible, pursuant to the conspiracy, for the possession
with intent to distribute, and actual distribution of approximately 50 grams of
heroin.”30 	They also agreed that he was “subject to a Base Offense Level of 43,
because death or serious bodily injury resulted from the use of the heroin that the
defendant possessed with intent to distribute.”31 	The plea agreement stated that
the “United States will in all likelihood recommend the maximum 20 years” at
sentencing.32
At the change of plea hearing on June 20, 2017, Lance Wells informed the
Court that the government had offered the same plea to Mr. Ducasse when he was
represented by Steven Wells, apart from some minor changes.33 	One of these
changes was the addition of the term in which Mr. Ducasse “admit[ed] the offense
level of 43.”34
29 Docket 47 at 2.
30 Docket 47 at 12.
31 Docket 47 at 13.
32 Docket 47 at 14.
33 Docket 84 at 10.
34 Docket 84 at 10–11.
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At the hearing, the Court confirmed with Mr. Ducasse that he had no
concerns about the legal representation and advice he had received35; that he
understood how federal sentencing guidelines applied to his case36; that the
government had “given notice . . . that it would likely recommend a maximum . . .
sentence . . . , which would be 20 years”37; and that he agreed with the plea
agreement’s recitation of the facts.38 	Mr. Ducasse pleaded guilty to counts one
and three.39 The Court accepted the plea, finding that it was made “knowingly and
voluntarily.”40
On October 2, 2017, Mr. Ducasse was sentenced to 20 years imprisonment
with six years supervised release.41 	One year later, on October 2, 2018, Mr.
Ducasse 	petitioned 	the 	Court 	to 	vacate 	his 	sentence, 	claiming 	ineffective
assistance of counsel.42 He requested an evidentiary hearing on this matter in his
reply.43
35 Docket 84 at 9–10.
36 Docket 84 at 22–25.
37 Docket 84 at 14.
38 Docket 84 at 33.
39 Id.
40 Docket 84 at 34.
41 Docket 103-1 at 71.
42 Docket 77. Mr. Ducasse chose to proceed without representation in this matter. See
Docket 81. He may by motion seek to have counsel appointed to represent him.
43 Docket 112 at 27.
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DISCUSSION
To prevail on a claim of ineffective assistance of counsel, a petitioner must
show (1) that his “counsel’s representation fell below an objective standard of
reasonableness,” and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”44 	“The reasonableness of counsel’s performance is to be evaluated
from counsel’s perspective at the time of the alleged error and in light of all the
circumstances, and the standard of review is highly deferential.”45 	To satisfy the
prejudice requirement, a petitioner challenging a guilty plea must show that he
would have gone to trial but for his counsel’s errors.46
The Court must grant an evidentiary hearing on a § 2255 motion “[u]nless
the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.”47 	The burden on the petitioner to obtain an evidentiary
hearing is “fairly lenient,” but nonetheless requires him “to allege specific facts
which, if true, would entitle him to relief.”48 An evidentiary hearing is not necessary
44 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (“A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”).
45 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 689).
46 See Hill v. Lockhart, 474 U.S. 52, 60 (1985); Smith v. Mahoney, 611 F.3d 978, 986
(9th Cir. 2010).
47 28 U.S.C. § 2255(b).
48 United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting United States
v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)); see also United States v. Quan, 789
F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner’s motion presents no more than
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if the petitioner’s allegations are “so palpably incredible or patently frivolous as to
warrant summary dismissal.”49
Mr. Ducasse asserts four claims of ineffective assistance of counsel
in his petition.50 	The government argues that the petition should be dismissed
summarily 	because 	Mr. 	Ducasse 	has 	not 	pled 	facts 	sufficient 	to 	obtain 	an
evidentiary hearing.51 	For the following reasons, the Court determines that an
evidentiary hearing is warranted as to Mr. Ducasse’s first and fourth claims, but
that the remaining two claims should be dismissed at this time.
1. 	Mr. Ducasse’s first and fourth claims
The Court will address Mr. Ducasse’s first and fourth claims together, as
they are based on the same factual allegations. Mr. Ducasse’s first claim asserts
that he was rendered ineffective assistance when “defense counsel allowed
defendant to enter into a plea agreement based on the threat of being convicted
on ct. 2 (‘resulting in bodily injury & death’) when there was insufficient evidence
to make a finding of guilt as set forth in Burrage v. United States,” 571 U.S. 204
(2014).52 	In Burrage, the Supreme Court held that the drugs distributed by a
conclusory allegations, unsupported by facts and refuted by the record, an evidentiary
hearing is not required.”).
49 United States v. McMullen, 98 F.3d at 1159 (quoting Marrow v. United States, 772
F.2d 525, 526 (9th Cir. 1985)).
50 Docket 77 at 4–5.
51 Docket 103 at 8–16.
52 Docket 77 at 4. The government argues that ‘allowing’ a client to plead guilty cannot
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defendant must be an “independently sufficient cause of the victim’s death or
serious bodily injury” or a “but-for cause of the death or injury” to establish liability
under 21 U.S.C. § 841(b)(1)(C).53
Mr. Ducasse’s fourth claim asserts that “defense council refused to obtain
exculpatory evidence (i.e. [a] drug analysis report) because it would have cost him
$1,200.00. 	Counsel also failed to further investigate exculpatory evidence found
at the home of the deceased . . . .”54
“[C]ounsel has a duty to make reasonable investigations or to make a
reasonable 	decision 	that 	makes 	particular 	investigations 	unnecessary.”55
Therefore, “[i]n any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
constitute unprofessional conduct because “[t]he decision to plead guilty—first, last, and
always—rests with the defendant, not his lawyer.” Docket 103 at 8 (quoting Smith v.
United States, 348 F.3d 545, 552 (6th Cir. 2003)). But Mr. Ducasse argues that his
counsel did not properly advise him of the law governing his case or investigate the
sufficiency of the evidence against him. See Docket 112 at 9–14. A petitioner may
“attack the voluntary and intelligent character of the guilty plea by showing that the
advice he received from counsel was not within the standards set forth” in Supreme
Court precedent. Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United
States v. Delgado-Ramos, 635 F.3d 1237, 1239–40 (9th Cir. 2011) (asking “whether
counsel’s advice regarding the plea ‘was within the range of competence demanded of
attorneys in criminal cases” (quoting Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir.
1988))).
53 571 U.S. 204, 218–19 (2014).
54 Docket 77 at 5.
55 White v. Ryan, 895 F.3d 641, 666 (9th Cir. 2018) (alteration in original) (quoting
Strickland v. Washington, 466 U.S. 668, 691 (1984)).
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heavy measure of deference to counsel’s judgments.”56
Mr. Ducasse characterizes the evidence against him as follows: the buyer’s
friend’s statement that she injected the buyer with heroin purchased from Ducasse;
Mr. 	Ducasse’s telephonic 	confession 	that he 	had 	sold heroin to 	the 	buyer;
surveillance footage allegedly showing the transaction; and the baggies found in
the buyer’s closet, which matched baggies seized from Mr. Ducasse’s residence.57
In his February 27, 2017 letter to Mr. Ducasse, Steven Wells explained the
rule in Burrage and why he thought the government had sufficient evidence to
convict Mr. Ducasse on count two:
Burrage is also the case that established a “but-for” causation test for
drug 	distribution 	that 	results 	in 	death. 	This 	means 	that 	the
government has to prove that [the buyer] would have lived “but-for”
the drugs you distributed to him. 	Unfortunately for you, [the buyer]
only had heroin in his system. He did not have a mix of drugs, which
would have made it more difficult to establish that it was specifically
the heroin that killed him. Even if we can establish that [the buyer] got
heroin from another source, we have no way of knowing how strong
that heroin was, how much [the buyer] took or when he took it. 	In
Burrage, one of the experts testified that the deceased might have
died even if he had not taken the heroin that Burrage provided. 	We
will have no such testimony here, mainly because we will have no
evidence that Michael actually received heroin from another person.
At best we will have your testimony that you do not believe the heroin
you gave [the buyer] could have killed him. 	Your defense, then,
requires the jury to believe your opinion regarding the use of drugs
when you are the one who has the most at stake in the trial. 	Given
the current attitude regarding opioid addiction and overdoses, I expect
56 Strickland, 446 U.S. at 667.
57 Docket 112 at 11.
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that the jury will not believe your opinion.58
In an affidavit filed with his reply, Mr. Ducasse states that Steven Wells
rebuffed several of his evidentiary concerns: 	his request to “obtain the CCTV
footage of the period of time during which [the buyer and the friend] were parked”
near the site of the transaction59; his “concerns . . . regarding the integrity of the
evidence found by [the buyer’s] family days after law enforcement had searched
the crime scene”60; and his belief that another drug dealer, named Nagle, had also
sold heroin to the buyer on the day of his death.61 Mr. Ducasse states that neither
Steven Wells nor Lance Wells complied with his request for a “copy of the
discovery” to review for “potential misinformation or items that might generate
ideas 	beneficial 	to 	[the] 	defense”62; 	that 	neither 	attorney 	listened 	to 	his
explanations about why the matching baggies were unpersuasive63; and that
neither attorney paid attention to the fact that nobody else who had used heroin
purchased from him, including the buyer’s friend, died.64 	Finally, Mr. Ducasse
58 Docket 112-2 at 4.
59 Docket 112-1 at 3, ¶ 6.
60 Docket 112-1 at 3, ¶ 7.
61 Docket 112-1 at 3, ¶10 (describing a conversation between Mr. Ducasse and Nagle at
the Mat-Su Pretrial Center).
62 Docket 112-1 at 6, ¶ 19.
63 Docket 112-1 at 6, ¶ 20.
64 Docket 112-1 at 6–7, ¶ 21.
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states that Steven Wells informed him that the results from the independent
laboratory would “bode well in [his] case,” but refused to submit the samples for
more thorough testing unless Mr. Ducasse covered the expense.65
In his February 27, 2017 letter, Steven Wells explained why he disagreed
with several of Mr. Ducasse’s assessments of the evidence. 	Steven Wells
believed that the defense would be unlikely to convince a jury that the friend, who
planned to testify that she and the buyer only purchased heroin from Mr. Ducasse,
was lying.66 He thought that Mr. Ducasse’s theory about the strength of his heroin
would require him to testify, and believed that he would be easily impeached.67
And Steven Wells did not believe that test results showing a difference between
the heroin seized from Mr. Ducasse’s residence and the heroin found in the buyer’s
closet would be exculpatory.68
In his affidavit, Lance Wells stated that he found “[t]he evidence in this
case . . . very strong as to Mr. Ducasse” because of his telephonic confession,69
that he did not find the independent drug analysis helpful to the defense,70 and that
65 Docket 112-1 at 2–3, ¶¶ 5, 9.
66 Docket 112-2 at 3.
67 Id.
68 Id.
69 Docket 104 at 3, ¶ 13.
70 Docket 104 at 4, ¶ 18.
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he “ha[d] done everything [he] could for Mr. Ducasse.”71 He stated:
I reviewed the entire file and met with Mr. Ducasse over a dozen times
in person to review this matter. There were also over 50 phone calls
from him to my office as well as looking up cases he had found and
researching them for him. I also received a number of letters from him
as well.72
Finally, he stated that he and Mr. Ducasse “read each and every page of the plea
agreement.”73
Mr. Ducasse disputes Lance Wells’ account in his own affidavit. 	He states
that Lance Wells met with him only three times: 	twice to discuss the plea
agreement and once to review the presentence investigation report.74 	He also
states that he telephoned Lance Wells far fewer than 50 times and that “90% of
the 	times 	[he] 	attempted 	to 	contact 	[Lance 	Wells], 	neither 	he 	nor 	anyone
associated with [Lance Wells] were available to take [the] call.”75 	Mr. Ducasse
states that he and Lance Wells only discussed the plea agreement “in general
terms” and that he raised numerous concerns, which Lance Wells rebuffed.76
In short, Mr. Ducasse disagrees with each of his attorneys about the level of
attention his defense received. Mr. Ducasse argues that an evidentiary hearing is
71 Docket 104 at 4, ¶ 19.
72 Docket 104 at 2, ¶ 6.
73 Docket 104 at 4, ¶ 15.
74 Docket 112-1 at 4, ¶¶ 11, 12.
75 Docket 112-1 at 4, ¶ 13.
76 Docket 112-1 at 4–5, ¶ 18.
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necessary because “the record in this case is void of any information as to what
pretrial activity was taken by [his] attorneys.”77 The Court finds that Mr. Ducasse
has met the “fairly lenient” burden to obtain an evidentiary hearing on these claims
by alleging specific instances in which he maintains each defense counsel failed
to investigate relevant evidence in his case.78 Accordingly, a hearing is warranted
to determine whether defense counsel adequately investigated the evidence
related to Count 2 of the indictment prior to the change of plea hearing.
Mr. Ducasse also argues that two Supreme Court decisions are relevant to
these claims. 	In Apprendi v. New Jersey, the Supreme Court held that “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”79 	And the
Court concluded in Alleyne v. United States that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.”80 	Mr.
Ducasse argues that neither of his attorneys “thoroughly explained the impact of
Apprendi and Alleyne on [his] case” and therefore his plea was not knowing and
77 Docket 112 at 12.
78 See United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (requiring petitioner
“to allege specific facts which, if true, would entitle him to relief” (quoting United States
v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996))).
79 530 U.S. 466, 490.
80 570 U.S. 99, 103.
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voluntary.81 	Mr. Ducasse’s argument as to the applicability of these two cases is
unclear. 	His conclusory statements about them are insufficient to merit an
evidentiary hearing on the issue.82
2. 	Mr. Ducasse’s second claim
Mr. Ducasse’s second claim asserts that “defense counsel failed to put the
prosecution’s case with regard to the drug amount to the adversarial test as
required by settled law as well as the Sixth Amendment to the Constitution.”83 In
his plea agreement, Mr. Ducasse agreed that he was “responsible . . . for the
possession with intent to distribute, and actual distribution of approximately 50
grams of heroin.”84 	The Court confirmed this quantity with Mr. Ducasse at his
change of plea hearing.85 	Mr. Ducasse argues that the government would not
have been able to prove that he had possessed this much heroin, and that the
allegedly inflated quantity to which he pled increased his base offense level.86
This argument is without merit. 	Mr. Ducasse’s base offense level was 43,
81 Docket 112 at 14.
82 See United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner’s
motion presents no more than conclusory allegations, unsupported by facts and refuted
by the record, an evidentiary hearing is not required.”). To the extent Mr. Ducasse
challenges the drug quantity to which he stipulated in the plea agreement, the Court
discusses that issue in its analysis of his second claim.
83 Docket 77 at 4.
84 Docket 47 at 12.
85 Docket 84 at 24.
86 Docket 112 at 19–20.
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which 	is 	the 	highest 	level 	under 	the 	Federal 	Sentencing 	Guidelines.87 	As
explained in the Presentence Report,
If the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B),
or (b)(1)(C) and the offense of conviction establishes that death or
serious bodily injury resulted from the use of the substance and that
the 	defendant 	committed 	the 	offense 	after 	one 	or 	more 	prior
convictions for a similar offense, the base offense level is 43. USSG
§ 2d1.1(a)(1). In this case [the buyer] died of a heroin overdose after
purchasing heroin from the defendant and the defendant has a prior
conviction 	of 	Misconduct 	Involving 	Controlled 	Substances 	in 	the
Second Degree . . . .88
Moreover, the parties agreed in the plea agreement that Mr. Ducasse “is subject
to a Base Offense Level of 43, because death or serious bodily injury resulted from
the use of the heroin that the defendant possessed with intent to distribute and
actually distributed.”89 	At the change of plea hearing, the Court summarized that
“the quantity [of heroin] is not as much the driver at all in this particular case under
the guidelines, it is that the base offense level 43 applies because death or serious
bodily injury resulted from the use of the heroin.”90 Mr. Ducasse then stated that
he had no questions about the base offense level.91 And Lance Wells emphasized
this point again in his affidavit, stating that the “drug quantity issue is irrelevant
87 See U.S. S ENTENCING G UIDELINES MANUAL app. G (U.S. S ENTENCING COMM’N 2004)
(sentencing table).
88 Docket 56 at 11.
89 Docket 47 at 13.
90 Docket 84 at 28.
91 Docket 84 at 28.
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because Mr. Ducasse admitted to 50 grams of heroin in the plea agreement, and
because the stipulation to an offense level of 43 made that fairly irrelevant in any
event.”92
Even if the drug quantity had been relevant to Mr. Ducasse’s base offense
level at sentencing, the cases he cites for support preclude his claim. Relying on
Apprendi v. New Jersey, Mr. Ducasse argues that the Court committed error at his
sentencing 	because 	the 	government 	did 	not 	“show 	overwhelming 	and
uncontroverted evidence of the drug quantity.”93 	In United States v. Harper, the
Supreme Court rejected a petitioner’s argument that the prosecution was required
to prove beyond a reasonable the drug quantity to which he had stipulated in his
plea agreement.94 The Circuit explained that the petitioner had
stipulated to the amount of drugs for which he was held responsible,
and the district court did not rely on 	any fact outside the plea
agreement to determine drug quantity at sentencing. 	Therefore, the
principles articulated in Apprendi are not implicated by the instant
case, and [petitioner’s] argument must fail.95
92 Docket 104 at 3–4, ¶ 14.
93 Docket 112 at 19.
94 246 F.3d 520, 529 (6th Cir. 2001), overruled on other grounds by United States v.
Leachman, 309 F.3d 377, 384 n.7 (6th Cir. 2002); see also Leachman, 309 F.3d at 385–
86 (“[Petitioner’s] argument fails because he knowingly and voluntarily waived his
constitutional rights to a jury and to proof beyond a reasonable doubt of the amount of
drugs specified against him.”).
95 Harper, 246 F.3d at 530–31.
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Mr. Ducasse’s second claim presents identical facts. 	Accordingly, it is dismissed
as patently frivolous.96
3. 	Mr. Ducasse’s third claim
Mr. Ducasse’s third claim asserts that “defense council [sic] sent defendant
a letter assuring him that he would not get a sentence of 20 years. Had defendant
known that he could get 20 years he would have gone to trial.”97 	Mr. Ducasse
points to the February 27, 2017 letter that Steven Wells sent before withdrawing
as counsel. The letter states that, pursuant to the plea agreement, “the maximum
would be 20 years,” but that the “government has informally indicated that it will
likely seek a sentence of less than the maximum, something in the neighborhood
of fifteen (15) years.”98 	Mr. Ducasse states in an affidavit that Lance Wells also
informed him, shortly before the change of plea hearing, that he “had ‘sat down’
with the government and that ‘they would not be asking for the maximum sentence
of 20 years.’”99 	Lance Wells disputes this in his own affidavit, stating that “At no
time did I tell Mr. Ducasse he would get less than 20 years. In fact, in all likelihood,
96 See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (explaining that no
evidentiary hearing is required when petitioner’s allegations are “so palpably incredible
or patently frivolous as to warrant summary dismissal” (quoting Marrow v. United States,
772 F.2d 525, 526 (9th Cir. 1985))).
97 Docket 77 at 4.
98 Docket 112-2 at 4.
99 Docket 112-1 at 4, ¶14.
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both of us felt he would get twenty years.”100
Mr. Ducasse’s plea agreement expressly stated that the government would
“in all likelihood recommend the maximum 20 years” at sentencing.101 And at the
change of plea hearing Mr. Ducasse confirmed his understanding that government
“would likely recommend a maximum . . . sentence . . . , which would be 20
years.”102 Mr. Ducasse also confirmed that he understood the sentencing process,
and that the Court, instead of his defense counsel or the government, would
ultimately determine his sentence.103 	Finally, Mr. Ducasse did not attempt to
withdraw his plea after the presentence investigation report and the government’s
sentencing memorandum both recommended the maximum 20 year sentence.104
Even assuming that defense counsel had informed Mr. Ducasse that he
would not receive the maximum sentence of 20 years, Mr. Ducasse thereafter
received information to the contrary in the plea agreement and at the change of
plea hearing. 	The record demonstrates that at the change of plea hearing, Mr.
Ducasse 	clearly 	understood 	that 	he 	could 	be 	sentenced 	to 	20 	years 	and
nevertheless entered his guilty plea. Mr. Ducasse has therefore failed to show that
100 Docket 104 at 2–3, ¶10.
101 Docket 47 at 14.
102 Docket 84 at 14.
103 Docket 84 at 22–25.
104 See Docket 56 at 1 (presentence report); Docket 62 at 2 (government’s sentencing
memorandum).
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he would probably have gone to trial but for his counsel’s alleged errors.105 	His
third claim is summarily dismissed because it is palpably incredible.106
CONCLUSION
In light of the foregoing, Defendant’s Section 2255 Petition at Docket 77 is
DENIED as to claims two and three.107 The Court will hold an evidentiary hearing
as to claims one and four on November 22, 2019 at 9:00 a.m. in Anchorage
Courtroom 2.
At 	the 	evidentiary 	hearing, 	Mr. 	Ducasse 	shall 	identify 	what 	additional
investigation he believes was warranted in his case. 	The government shall
arrange for the presence of Steven Wells and Lance Wells at the hearing. 	Mr.
105 See Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010) (“In the context of a plea, a
petitioner satisfies the prejudice prong of the Strickland test where ‘there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.’” (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985))).
106 See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (explaining that
no evidentiary hearing is required when petitioner’s allegations are “so palpably
incredible or patently frivolous as to warrant summary dismissal” (quoting Marrow v.
United States, 772 F.2d 525, 526 (9th Cir. 1985))).
107 The Court further finds that Mr. Ducasse has not made the requisite substantial
showing of the denial of a constitutional right, and therefore a certificate of appealability
will not be issued by this Court with respect to the two dismissed claims. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted only if
applicant made “substantial showing of the denial of a constitutional right,” i.e., 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)). Mr.
Ducasse may request a certificate of appealability from the Ninth Circuit Court of
Appeals.
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Ducasse may appear telephonically by calling the Meet Me Bridge at (907) 677-
6248 and enter Access Code 668160 five minutes prior to the hearing.
DATED this 7th day of October, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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