Memorandum Decision and Order — No. 1:21-cr-00089 (Dkt. 88, D. Idaho)

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A Memorandum Decision and Order, Document 88, filed December 14, 2023 in Patrick Wayne Anderson v. United States of America, Civil No. 1:23-cv-00316-DCN and Criminal No. 1:21-cr-00089-DCN, in the U.S. District Court for the District of Idaho, signed by Chief U.S. District Court Judge David C. Nye. The court denies the petitioner's pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, which claims ineffective assistance of counsel. The order recounts that he pleaded guilty to possession with intent to distribute under a plea agreement with a jointly recommended sentence of eighty-four months, imposed on January 10, 2023. It finds no reason to set aside the conviction or sentence or to hold an evidentiary hearing.

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Case 1:21-cr-00089-DCN Document 88 Filed 12/14/23 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

PATRICK WAYNE ANDERSON,
Civil No. 1:23-cv-00316-DCN
Petitioner, Criminal No. 1:21-cr-00089-DCN

v. MEMORANDUM DECISION AND
ORDER
UNITED STATES OF AMERICA,

Respondent.

I. INTRODUCTION

Pending before the Court is Petitioner Patrick Wayne Anderson’s pro se Motion to

Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Dkt. 1. The

Government opposed the Motion. Dkt. 4. Anderson did not reply.

Having reviewed the record and briefs, the Court finds that the facts and legal

arguments are adequately presented. Accordingly, in the interest of avoiding further delay,

and because the Court finds that the decisional process would not be significantly aided by

oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc.

Civ. R. 7.1(d)(1)(B). Upon review, the Court DENIES Anderson’s Motion.

II. BACKGROUND

On February 19, 2021, Anderson was driving a vehicle in Caldwell, Idaho, when a

concerned citizen called the police to report Anderson as a potential drunk driver. Anderson

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was subsequently located by police, sitting in a parked car. One officer asked Anderson to

exit the car in order to conduct a DUI investigation. As Anderson complied, the officer

noticed an empty pistol holster attached to Anderson’s waistband.

While performing the DUI investigation, the officers spotted drug paraphernalia

inside the driver’s door pocket, creating a reasonable suspicion that Anderson had drugs in

the vehicle. The officers called a drug-sniffing dog, which confirmed the officers’

suspicions. Upon a search of the car, officers located a safe containing significant amounts

of methamphetamine, fentanyl, marijuana, plastic baggies, a scale, and a receipt from a

WinCo store in Richland, Washington. Officers also found a .45 caliber pistol in the center

console immediately next to where Anderson was seated.

Anderson denied ownership of the car, the gun, and the safe. He claimed to be

driving to Idaho but could not provide a clear purpose for doing so, nor a specific

destination. He claimed further that his holster was for carrying a BB gun.

Uncompelled by his assertions, the officers arrested Anderson and booked him into

Jerome County Jail. While in jail, Anderson asked a friend via phone call to modify his

holster to ensure that a .45 pistol could not fit inside. In a separate call, he admitted to

another friend that once he starts using drugs, he quickly descends into “slangin and

bangin,”—or selling drugs to others.

Anderson was ultimately charged with one count of possession with intent to

distribute methamphetamine and fentanyl, one count of unlawful possession of a firearm,

and one count of possession of a firearm in furtherance of a drug trafficking crime. In

December 2021, Anderson moved to suppress evidence seized from the vehicle during the

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stop. After a hearing, the Court denied his motion. The next month, Anderson accepted a

plea agreement, wherein he agreed to plead guilty to possession with intent to distribute

and to waive his rights to appeal his sentence, and the Government agreed to drop the other

charges. The parties jointly agreed to recommend a sentence of eighty-four months of

imprisonment. On January 10, 2023, the Court imposed the recommended sentence.

Anderson now claims he received ineffective assistance of counsel during his pre-

trial proceedings, asserting that: (1) he instructed his defense counsel to file an appeal after

his suppression motion was denied, (2) he and his defense counsel discussed appealing

after his sentencing hearing, and Anderson expected an appeal to follow, and (3) his

defense counsel failed to investigate potential defenses related to his gun and drug charges

and his access to the safe. See generally Dkt. 1.

III. LEGAL STANDARDS

A. 28 U.S.C. § 2255

Title 28 U.S.C. section 2255 provides four grounds on which a federal judge may

grant relief to a federal prisoner who challenges the imposition or length of his or her

custody: (1) “that the sentence was imposed in violation of the Constitution or laws of the

United States”; (2) “that the court was without jurisdiction to impose such sentence”; (3)

“that the sentence was in excess of the maximum authorized by law”; or (4) that the

sentence is otherwise “subject to collateral attack.” § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal

district court judge may summarily dismiss a section 2255 motion “[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in the case

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that the movant is not entitled to relief.” A court need not hold an evidentiary hearing in a

section 2255 case when a prisoner’s credibility may be “conclusively decided on the basis

of documentary testimony and evidence in the record.” United States v. Espinoza, 866 F.2d

1067, 1069 (9th Cir. 1988) (quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir.

1988)). A court may dismiss a section 2255 motion at other stages of the proceeding such

as pursuant to a motion by respondent, after consideration of the answer and motion, or

after consideration of the pleadings and an expanded record. See Advisory Committee

Notes Following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by

reference into the Advisory Committee Notes following Rule 8 and Rules Governing

Section 2255 Proceedings. If a court does not dismiss the proceeding, the court then

proceeds to a determination under Rule 8 of whether an evidentiary hearing is required.

B. Ineffective Assistance of Counsel

“[A]n ineffective-assistance-of-counsel claim may be brought in a collateral

proceeding under section 2255, whether or not the petitioner could have raised the claim

on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003). A defendant is

entitled to effective assistance of counsel at all “critical stages” of the criminal process,

including trial, sentencing, and direct appeal. United States v. Leonti, 326 F.3d 1111, 1116–

17 (9th Cir. 2003). To challenge a sentence on grounds of ineffective assistance of counsel,

a § 2255 movant must meet the widely known two-part test: (1) counsel’s performance was

deficient, and (2) the deficiency prejudiced his defense. See, e.g., Strickland v. Washington,

466 U.S. 668, 687–88 (1984).

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To establish deficient performance, the movant must show that counsel’s

performance “fell below an objective standard of reasonableness.” Id. at 688. Under the

performance prong, there is a strong presumption that counsel’s performance falls “within

the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice,

the movant must prove by a reasonable degree of probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. at 694. In

other words, a movant must make a showing sufficient to undermine a court’s confidence

in the outcome. Id.

Informed, strategic choices by counsel are “virtually unchallengeable.” Id. at 689–

90. Courts approach strategic choices with high levels of deference because it is “too

tempting for a defendant to second-guess counsel’s assistance after conviction or adverse

sentence,” and the court must “eliminate the distorting effects of hindsight.” Id.

On the other hand, “a lawyer who disregards specific instructions . . . to file a notice

of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528

U.S. 470, 477 (2000). This is true even if any potential appeal would be meritless and even

if appealing is circumscribed by a defendant’s plea agreement. United States v. Sandoval-

Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005).

A claim of ineffective assistance of counsel may be rejected on either the deficiency

or prejudice prong, and a court need not address both. See United States v. Thomas, 417 F.3d

1053, 1056 (9th Cir. 2005). Mere conclusory allegations are insufficient to state a claim of

ineffective assistance of counsel. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).

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IV. ANALYSIS

A. Failure to Appeal

When a defendant asks his or her defense counsel to file an appeal, counsel must do

so, even if doing so goes against counsel’s better judgment.1 Sandoval-Lopez, 409 F.3d at

1199. However, there is a difference between a defendant discussing an appeal with his

defense counsel and a defendant instructing his defense counsel to file the appeal. As the

Ninth Circuit made clear in Sandoval-Lopez, “[m]ere expression of interest in appealing

[does] not lead to the same result as telling defense counsel to appeal.” Id. at 1198.

Here, Anderson claims that he had two discussions with his defense counsel, Mark

Ackley, regarding appeals. Dkt. 1-1, at 8. In the first, which occurred after the Court denied

Anderson’s Motion to Suppress, Anderson claims he directly instructed Ackley to appeal

the Court’s decision. Id. The second discussion allegedly took place after Anderson’s

sentencing hearing. Id. However, regarding that discussion, Anderson claims only that he

and Ackley conversed about his desire to appeal—not that he gave specific instructions

that an appeal be filed.

Ackley has filed an affidavit with the Court, disputing Anderson’s version of the

foregoing events. With regards to the first discussion, Ackley states that neither he, nor his

co-counsel, has any recollection of Anderson requesting an appeal, nor is such a request

present in their notes from communications with Anderson. Dkt. 4-1, at 4. Regarding the

1
“[T]he client has the constitutional right, under Flores-Ortega and Peguero, to bet on the possibility of
winning the appeal and then winning an acquittal, just as a poker player has the right to hold the ten and
queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush.”
Sandoval-Lopez, 409 F.3d at 1199.

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second discussion, Ackley acknowledges that during plea negotiations, he and Anderson

regularly talked about appeals and appellate waivers. Id. at 5. Ackley asserts that had

Anderson requested an appeal be filed after his sentencing hearing, Ackley would have

reminded Anderson of the appeal waiver in his plea agreement. Id. However, had Anderson

insisted, Ackley states he would have filed an appeal, and argued that Anderson’s waiver

was somehow invalid, as his office has previously done on rare occasions. Id.

1. Appeal of Sentence

Considering the foregoing, the Court can easily dispatch with Anderson’s

ineffective-assistance-of-counsel claim arising out of the post-sentencing discussion.

Anderson does not assert that he instructed Ackley to file an appeal of his sentence. Instead,

Anderson states that he and Ackley discussed his interest in appealing. This assertion is

supported by Ackley’s affidavit. However, as mentioned previously, discussion of interest

in an appeal does not impose the same duties on defense counsel as does expressly

requesting an appeal. See, e.g., Sandoval-Lopez, 409 F.3d at 1198.

In the absence of explicit direction to file an appeal, the Supreme Court has made

clear that defense counsel’s behavior is deficient under the first prong of Strickland if he

or she fails to file an appeal when: “(1) a rational defendant would want to appeal (for

example, because there are nonfrivolous grounds for appeal), or (2) . . . this particular

defendant reasonably demonstrated to counsel that he was interested in appealing.” Flores-

Ortega, 528 U.S. at 480. When addressing these questions, a defendant’s guilty plea is

“highly relevant,” as are whether a defendant “received the sentence bargained for . . . and

whether the plea expressly reserved or waived some or all appeal rights.” Id. Under the

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prejudicial effect prong, a counselor’s failure to timely file an appeal is prejudicial if a

defendant can show “nonfrivolous grounds for appeal or that [he or she] promptly

expressed a desire to appeal.” Id. at 485; Sandoval-Lopez, 409 F.3d at 1196.

While the record indicates that Anderson may have expressed some interest in

appealing after his sentencing hearing, there is no evidence that he ever made a clear

request for appeal to Ackley. Thus, this case is governed by Flores-Ortega. The record also

clearly indicates that Anderson knowingly and voluntarily waived his appeal rights in his

plea agreement. Further, Anderson received the exact sentence he bargained for in

exchange for his guilty plea. Thus, on balance, the Court cannot find that Anderson made

a reasonable demonstration of interest in appealing and, therefore, it cannot find that

Ackley’s conduct was deficient by failing to file an appeal.

2. Appeal of Order Denying Motion to Suppress

The alleged discussion that occurred after the Court denied Anderson’s suppression

motion presents a somewhat thornier issue.

Anderson asserts that after his suppression motion was denied, he told Ackley to

file an appeal. Dkt. 1-1, at 8. Ackley denies this in his sworn affidavit. Dkt. 4-1, at 4. The

Ninth Circuit has held that if there is a dispute between the parties as to whether a petitioner

did or did not ask his trial counsel to file an appeal, the district court is required to hold an

evidentiary hearing. Sandoval-Lopez, 409 F.3d at 1198; see also United States v. Chacon-

Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000). As a result, it has become common

practice in the Ninth Circuit for district courts, when faced with a situation like the one

currently before the Court, to grant the Government two options. It can either: (1) continue

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its opposition to the petitioner’s claim and the Court will hold an evidentiary hearing to

determine whether the petitioner’s allegation is true, or (2) stipulate to the truthfulness of

the petitioner’s claims and allow him or her to appeal. See, e.g., Castillo v. United States,

2019 WL 6178682 (D. Idaho Nov. 19, 2019); Islas-Galeana v. United States, 2012 WL

1165886 (D. Arizona Apr. 9, 2010).

However, neither of those two traditional options leads to a satisfying, nor an

efficient, resolution of the present controversy. On the one hand, if the Government opts to

continue its opposition to Anderson’s petition, the Court will be required to bring both

parties before the bench to testify regarding their discussions. Considering that both parties

have already submitted to the Court their respective versions of the events in question,

bringing them back into court to give testimony that will almost certainly parrot their

briefing seems to be an unwarranted waste of judicial resources. This is particularly true

where one party (Anderson) has made an unsupported claim that he told his counsel to

appeal, and the other party (the Government) has submitted an affidavit fully addressing

and dismantling that claim. If a criminal defendant can force a hearing by doing nothing

more than filing a document claiming he told his counsel to appeal, district courts will be

forced to spend untold amounts of time weeding through frivolous hearings.

Further, assuming arguendo that Anderson produces sufficient evidence to establish

that he requested an appeal of the Court’s decision regarding his suppression motion, what

comes next? Anderson, presumably, would be allowed to file an appeal with the Ninth

Circuit. However, the saga of Castillo v. United States demonstrates why such a filing

would be an exercise in futility. 2019 WL 6178682, at *1; 2020 WL 5577877, at *1. In

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Castillo, the defendant pled guilty to one count of possession with intent to distribute

methamphetamine and was sentenced to 137 months imprisonment. 2019 WL 6178682, at

*1. As part of her plea agreement, Castillo waived her right to an appeal. 2020 WL

5577877, at *5. Shortly after sentencing, Castillo filed a 2255 motion, claiming ineffective

assistance of counsel. Her argument, like Anderson’s, was that her counsel failed to file an

appeal after she directed him to do so. 2019 WL 6178682, at *1.

The Court held an evidentiary hearing, and found that, after Castillo’s criminal

sentencing hearing, Castillo had clearly communicated to her defense counsel a desire to

appeal her sentence. 2020 WL 5577877, at *6. Accordingly, the Court vacated her

judgment, appointed her new counsel, and re-entered a new judgment allowing her to

appeal her sentence to the Ninth Circuit. Id. However, on appeal, the Ninth Circuit found

that Castillo’s original plea-agreement waiver of her right to appeal was controlling and

dismissed the case without addressing the merits of her arguments. United States of

America v. Tyra Danyal Castillo, 2021 WL 4690934 (9th Cir. Oct. 7, 2021).

In other words, under a mechanical application of Sandoval-Lopez, the district court

was required to ignore Castillo’s waiver, only to have the Ninth Circuit inform her after

roughly thirty months, a full evidentiary hearing, appointment of counsel, and an appeal

that the waiver was, in fact, binding.

Here, because Anderson knowingly and voluntarily waived his appeal rights, it

appears to the Court that the ultimate dismissal of this case is a foregone conclusion. The

only question yet to be resolved is whether dismissal comes from the district court now, or

from the Ninth Circuit after thirty-plus months of wheel spinning. To invoke the poker

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imagery from Sandoval-Lopez, by waiving his right to appeal, Anderson has folded. He

cannot now request a new draw.

There is also something to be said regarding the fact that, even if Anderson did

request an appeal following the Court’s denial of his suppression motion, because his

acceptance of the plea agreement (and its concomitant waiver) came after that request, the

waiver can be understood as negating Anderson’s prior request.

At any rate, because Anderson’s claim that he requested an appeal has been

thoroughly contradicted by an affidavit from his defense counsel, and because even if

Anderson did request an appeal, his request was waived when he signed his plea agreement,

the Court finds that, under Espinoza, it can conclusively determine Anderson’s credibility

on the basis of documentary testimony and evidence in the record. See 866 F.2d at 1069.

Accordingly, an evidentiary hearing is unnecessary, and the Court can dismiss the claim

without further ado. As in Castillo, the waiver of the right to appeal in the plea agreement

and at the change of plea is valid and enforceable.

B. Failure to Investigate

Finally, Anderson alleges that his counsel failed to investigate the ownership of the

car Anderson was driving, the ownership of the gun found in the console, and the source

of the receipt found in the safe. While a failure to investigate may be objectively

unreasonable and prejudicial under Strickland, the Court reiterates that informed, strategic

choices by counsel are “virtually unchallengeable” in light of the temptation to second-

guess counsel’s assistance after conviction. 466 U.S. at 689–90.

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From Ackley’s affidavit, it is clear he (Ackley) was fully aware the neither the gun

nor the car belonged to Anderson. Dkt. 4-1, at 6–7. Ackley also testifies that he interviewed

the registered owners of both the gun and the car. Id. While it is conceivable that

testimonies from the registered owners of the gun and the car could provide some marginal

benefit to Anderson’s case, Ackley ultimately made the informed, strategic decision to

forgo reliance on such testimonies out of the reasonable concern that they could negatively

impact the case. Id. at 6. It is not the job of the Court to second-guess that decision.

Further, regarding the receipt found in the safe, Ackley testifies that he and his team

spent significant time investigating where it came from and trying to come up with

plausible factual scenarios to explain how it ended up in the safe. The fact that he ultimately

could not do so is not indicative of a failure to investigate, nor does it qualify as objectively

unreasonable and prejudicial behavior. The Court, therefore, dismisses this final claim of

ineffective assistance of counsel.

In sum, Anderson’s Motion is DENIED. The Court finds no objective or reasonable

basis that would require it to vacate, set aside, or correct Anderson’s sentence.

V. CERTIFICATE OF APPEALABILITY

When a district court enters a final order denying a petition under section 2255, it

must either issue or deny a certificate of appealability (“COA”). By statute, a court may issue

a COA “only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When a court has dismissed the petition or claim on the

merits, the petitioner must show that “reasonable jurists would find the district court’s

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assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

Having reviewed the record, the Court finds that no reasonable jurist would dispute

that the actions of Anderson’s counsel fell within the “wide range of reasonable professional

assistance” regarding Anderson’s first and third claims. See Strickland, 466 U.S. at 689. The

Court therefore denies a COA as to those issues.

Regarding Anderson’s second claim, the Court finds that no reasonable jurist would

dispute that Anderson had waived previous requests for an appeal nor that an appeal would

be an exercise in futility. Accordingly, no reasonable jurist would find that an evidentiary

hearing is necessary here. The Court, therefore, declines to issue a COA.

If Anderson wishes to proceed to the United States Court of Appeals for the Ninth

Circuit on his claims, he must file a notice of appeal in this Court within thirty days after

entry of this Order, and he must seek a COA from the Ninth Circuit in accordance with

Federal Rule of Appellate Procedure 22(b)(2). Id. (“[I]n a 28 U.S.C. § 2255 proceeding,

the applicant cannot take an appeal unless a circuit justice or a circuit or district judge

issues a certificate of appealability under 28 U.S.C. § 2253(c) . . . .”).

VI. CONCLUSION

For all the reasons stated above, the Court finds no reason to set aside Anderson’s

conviction or sentence, or to conduct an evidentiary hearing on the same. Accordingly, his

Motion is DENIED.

///
///

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VII. ORDER

The Court HEREBY ORDERS:

1. Anderson’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255 (Dkt. 1) is DENIED.

2. The Clerk of the Court shall file this order in Anderson’s civil and criminal case.

DATED: December 14, 2023

_________________________
David C. Nye
Chief U.S. District Court Judge

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