
    Howard James SAWYER, Petitioner, v. UNITED STATES of America, Respondent.
    No. CV 16-00691-TUC-CKJ
    No. CR 15-00897-CKJ-EJM
    United States District Court, D. Arizona.
    Signed 10/10/2017
    
      Ryan Moore, Federal Public Defenders Office, Tucson, AZ, for Petitioner.
    Jesse Joseph Figueroa, Charisse Marie Arce, US Attorney’s Office, Tucson, AZ, for Respondent.
   ORDER

Honorable Cindy K. Jorgenson, United States District Judge

Pending before the Court is the parties’ Joint Amended Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (Doc. 13.) On November 25, 2015, Petitioner Howard James Sawyer pleaded guilty to one count of Assault on a Federal Officer. His sentence was enhanced for inflicting permanent bodily injury. (Doc. 19, CR-15-0897-TUC-CKJ-E JM.) However, subsequent to sentencing, it was revealed that the victim-agent’s injury to his eye was not permanent, and may not have been caused by Sawyer’s assault. (Doc. 1 at 5.) In his original § 2255 petition, Sawyer asked the Court to vacate his sentence because he claimed that due to this revelation, he was actually innocent of the permanent injury enhancement. (Id.) The Court appointed counsel for Sawyer, directing counsel to file a supplemental § 2255 motion addressing the Court’s authority to vacate the sentencing enhancement. (Doc. 7 at 6.) As a result, the parties have filed the instant § 2255 motion, jointly asking .the Court to vacate judgment. (Doc. 13.) The Court will grant the parties’ motion, vacate Sawyer’s sentence, and set for trial.

Procedural History

On November 25, 2015, Petitioner Howard James Sawyer pleaded guilty to one count of Assault on a Federal Officer, in violation of 18 U.S.C. § 111(a)(1) and (b). (Doc. 19, CR-15-0897-TUC-CKJ-EJM). The penalty under this statute is enhanced when an assault causes bodily injury. 18 U.S.C. § 111(b). During the change of plea, Sawyer admitted to a magistrate judge that he had inflicted bodily injury, causing permanent vision loss to the victim-agent. (Doc. 36 at 13, CR-15-0897TUC-CKJ-EJM.) ■

In preparation for sentencing, the Probation Department’s Presentence Report (“PSR”). repeatedly noted that the officer suffered permanent vision loss, and recommended Petitioner’s sentence be enhanced under Sentencing Guideline § 2A2.2(b)(3)(C) for the permanent injury. (Doc. 24 at 3-5, CR-15-0897-TUC-CKJ-EJM.) The PSR increased Sawyer’s calculated Base Offense Level by 7 for the permanent vision loss and another 2 levels for infliction of bodily injury during an assault on a federal officer under 18 U.S.C. § 111(b). (Id. at 5.)

The Government’s recommendation for sentencing likewise relied upon the assumed fact that Petitioner’s actions caused permanent injury. (Id. at 10.) The Court adopted the PSR’s Guidelines calculation, applied the 7-level enhancement because of the permanent vision loss and an additional two levels for infliction of bodily injury. (Doc. 35 at 4-5, CR-15-0897-TUC-CKJ-EJM.) With a Total Offense Level of 26, and a Criminal History VI, the Court sentenced Sawyer to 139 months- of imprisonment. (Doc. 29 at 1, CR-15-0897-TUC-CKJ-EJM.)

Sawyer filed a motion to vacate his sentence on October 24, 2016. (Doc. 1.) His motion alleges that since sentencing, Sawyer found out that the victim’s injury was not permanent. (Id. at 5.) Based on this newly discovered evidence, Sawyer asserted he was actually innocent of the enhancement for bodily injury. (Id.)

The Government responded, admitting that since the sentencing “it learned that a neuro-opthalmologist had concluded in September of 2016 ■ ... that the assault was likely not the cause óf the victim’s vision loss.” (Doc. 13 at 3; see also Doc. 5 at 2-3.)

The Court appointed Ryan Moore of the Federal Public Defender’s Office to represent Sawyer, and directed counspl to file a supplemental § 2255 motion addressing the Court’s authority to correct Sawyer’s sentence. (Doc. 7 at 6.) '

In response, the parties filed the instant Joint Amended Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (Doc. 13.) In it, both Sawyer and the Government ask the Court to vacate Sawyer’s conviction and sentence. (Id. at 9.) The parties state three reasons the Court is permitted to vacate the sentence: (1) that the sentence was unconstitutional because the plea was involuntary; (2) that the enhancement was based on false information which made the sentence a violation of the Fifth Amendment; and (3) that under the escape hatch clause of 28 U.S.C. § 2255, Sawyer is actually innocent of the sentencing enhancement, so his remedy under § 2255 was “inadequate or ineffective to test the legality of his detention.” (Id. at 3-8).

The Government explains it joined in the motion because of the subsequent developments in this case. In addition to the conflicting conclusion by the neuro-opthalmol-ogist that Sawyer's actions did not cause injury to the victim-agent, the Government has since been informed that the victim-agent has refused to provide any additional medical records (Id. at 3), despite an indication that a follow-up appointment had occurred (Doc. 5 at 4). This makes any further inquiry as to the permanency and cause of thé injury impossible, and calls into question the credibility of the original allegations of the victim-agent. (Doc. 13 at 5.) The Government submits that had it known of the conflicting evidence- and the credibility issues of the victim-agent’s testimony, it would have originally extended a more favorable plea agreement to Sawyer. (Id.) Because of this, the Government is now willing to offer a new plea agreement, excluding the sentencing enhancement. (Id. at 1.)

Statute af Limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner may file a writ of habeas corpus in federal court requesting relief from federal judgment. However, the time for appeal is hot unlimited, Petitioners haye one year tó file from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1).

As a preliminary matter, the amended motion — filed August 25, 2017 — alleges the same facts, and thus relates back to the date of the original petition.. Fed.R.Civ.P. 15(c)(1)(B); see Mayle v. Felix, 545 U.S. 644, 647, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (“So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.”) The original motion was filed within one year of the conclusion of direct review. Therefore, the instant motion is deemed timely.

Parties’ Joint Motion to Vacate

A petitioner may move to correct his sentence under 28 U.S.C. 2255(a) ohly in limited circumstances, A petitioner may challenge (1)' the constitutionality of the sentence imposed, (2) the court’s jurisdiction to impose a sentence, (3) the length of the sentence if the sentence was more than permitted by law, or (4) that the sentence is otherwise “subject to collateral attack” 28 U.S.C. § 2255(a).-

A" defendant may waive the statutory right to bring a § 2255 action challenging the length of his sentence through a plea agreement. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). However, a plea agreement is an invalid waiver if it is not entered into voluntarily and intelligently. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of involuntariness of the waiver); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (summarizing Pruitt and Abarca, but declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). An involuntary waiver may be challenged in a § 2255 petition. Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995).

Because Sawyer claims the subsequent revelations made his plea unknowing and involuntary, the Court will consider the § 2255 motion.

Sawyer’s Plea was Involuntary Because of Misrepresentation

The parties first claim this Court has authority to vacate and resentenee Sawyer because the original plea agreement was made involuntarily. (Doc. 13 at 3.) The parties allege that the victim-agent originally claimed - that the injury was caused by Sawyer, and provided medical records to support that assertion, which the Government relied upon when offering an appropriate plea agreement. (Id. at 4.) However, subsequent reports from a neu-ro-opthalmologist have drawn the opposite conclusion — that Sawyer did not cause permanent injury. (Id.) Further, .since the victim-agent refuses to provide any further detail about the permanency or cause of injury, or supply current medical records to the Government, the parties believe that the victim’s original statements should be considered affirmative misrepresentations. Although the Government’s claim that Sawyer caused .permanent injury was made in ’good faith, it was subsequently shown to be untrue. In turn, Sawyer’s reliance on the affirmative misrepresentations of the Government made Sawyer’s guilty plea involuntary. (Id. at 3.)

“A defendant’s decision whether or not to plead guilty is often heavily influenced by his appraisal of. the prosecution’s case.... A waiver cannot be deemed ‘intelligent and voluntary’ if ‘entered without knowledge of material information withheld by the prosecution.” Sanchez, 50 F.3d at 1453. Information is material if, at the time of the plea agreement, the defendant would' have refused to plead and proceeded to trial had the information been available. Id. at 1454. This is an objective standard. Id.

Materiality

At the time of the plea agreement, both Sawyer and the Government were under the impression that Sawyer’s assault had caused permanent injury to the victim. In addition, the record is clear that the en-, hancement was applied to Sawyer’s sentence because of the permanency of the injury. (Doc. 36 at 13; Doc. 24 at 4-5; Doc 35 at 5.) From an - objective standpoint, Sawyer’s agreement to the enhancement was premised'solely on the credibility of the victim-agent and the' availability of medical records supporting causation. Furthermore, Sawyer' alleges he would not have plead' guilty to the enhancement had he known of the conflicting information and la‘ck of'cooperation by the victim-agent. Over and above the aforementioned, the Government admits had it known of the victim-agent’s discordant evidence and refusal to further support his assertions, it would have never pursued the enhancement. There is no doubt that the information disputing Sawyer’s culpability for the permanent injury would have been material to Sawyer’s decision to plea.

- The issue, therefore, is not whether the information was material. Nor is it whether the Government knowingly withheld material information. The Government was not in possession of any incongruent information at the time of the plea agreement. Rather, the crux of the matter- is whether there Was an affirmative misrepresentation as to the injury by the victim-agent, which was relayed to Sawyer through the Government, making his plea involuntary.

United States v. Fisher

To demonstrate .that the. Court is permitted to .vacate the sentence under § 2255 based on an affirmative misrepresentation, the parties cite a Fourth Circuit case, United States v. Fisher, 711 F.3d 460 (4th Cir. 2013). In that case, the court permitted the defendant, to withdraw his plea of guilty in a § 2255 motion, deeming the plea involuntary. Id. at 469. Prior to the plea agreement, the prosecution’s'case depended heavily on the. testimony of a police officer. Id. at 466. Unbeknownst to the prosecution, the officer had falsely testified. Id. When formulating the plea agreement, the prosecution unwittingly informed the defendant the false statement would be used against him. Id. It was revealed a year after the plea agreement was signed that the police officer had lied. Id. at 463. The prosecution admitted had it known of the false statement it would have disclosed it. Id. at 467. As a result, the defendant would likely have filed a motion to suppress, and if the motion was successful, the prosecution’s case would have fallen apart. Id. The court determined that despite the good faith of the prosecution, because the “[d]efendant’s misapprehension stems from an affirmative government misrepresentation that ‘strikes at the integrity of the prosecution as a whole” the government’s false information was sufficiently impermissible conduct to permit defendant to withdraw his plea agreement. Id. at 466 (internal quotations omitted). The court concluded the fact that the information was not revealed until after the plea did not matter. “Neither, the timing [of the disclosure of the false testimony], nor the prosecution’s good faith, however, negates the undisputed fact that the evidence the prosecution presented to Defendant and his counsel during deliberations as to whether Defendant should plead guilty was [based on] ... an untruthful law enforcement affidavit.” Id. at 467. The court determined that a misrepresentation made by the government may deem the plea involuntary when (1) “egregiously impermissible conduct” preceded the signing of the plea agreement; and (2) the decision to plead was formed based on the impermissible conduct. Id. at 465.

The Court finds the analysis in Fisher persuasive and analogous to Sawyer’s case. The case is also compatible with the Ninth Circuit and Supreme. Court case law on involuntary plea agreements. Like Fisher, the Supreme Court similarly found that a misrepresentation could cause a defendant’s plea to be involuntary. It stated:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats ..., misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business.

Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (emphasis added) (internal quotations and citations omitted); see also Lepera v. United States, 587 F.2d 433 (9th Cir. 1978). The Supreme Court’s guideline does not limit unfulfillable promises to those made knowingly, but merely states that the defendant’s plea is involuntary when the misrepresentation for which the defendant based his agreement on' could not be fulfilled.

Like Fisher, the parties now claim that the statements made by the victim-agent were false and misleading based on the subsequent information provided to the Government. (Doc. 13 at 5.) As a result, the Government’s pre-plea assertion of the strength of its case for enhancing Sawyer’s sentence was a misrepresentation.

First, the new medical evaluation undercuts the Government’s promise that it could show Sawyer’s assault caused permanent injury. It also erodes the credibility of the victim-agent’s claim that Sawyer caused his injury. Second, the. victim-agent’s subsequent refusal to provide an updated statement and medical records likewise undermines the veracity of the victim-agent’s original allegations of injury. Given the purported false information provided by the victim-agent, the Government’s proffer that it could provide credible testimony at trial — though offered in good faith — should never have been relayed to Sawyer.

Furthermore, Sawyer relied on the victims’ affirmative misrepresentations when determining whether to plead guilty to the enhancement. (Id. at 5.)

As a result, Sawyer’s situation constitutes an unfulfilled’ and unfulfillable promise by the Government — that if the case went to trial, the Government would be able to prove that the victim-agent’s injury was permanent and caused by Sawyer’s assault..This promise was a gross mischar-acterization of the case against Sawyer. Similar to Fisher, the false information provided by the victim-agent formed the entire basis for the enhancement of Sawyer’s sentence. Without it, the Government’s argument for enhancement would have disintegrated entirely. Moreover, the Government concedes that had it known about the misrepresentation, it would have extended a more favorable plea agreement. (Id.)

The Court finds when pleading guilty, Sawyer relied on information from the Government — provided by the victim-agent — that has since been shown to be a material misrepresentation. This constituted an unfulfillable promise made by the Government. Sawyer’s plea therefore was involuntary. Therefore, this Court will vacate Sawyer’s sentence and reset the case for trial.

Enhancement was Based on False, Unreliable Information

Alternately, the parties contend that because the sentence was based on materially false information, the sentence was a violation of due process, which permits the Court to set aside Sawyer’s guilty plea and reopen the criminal case under § 2255. (Id. at 6.)

A sentence in violation of the Constitution poses a cognizable claim under 28 U.S.C. § 2255. 28 U.S.C. § 2255(a). “[A] defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information.” United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), as amended, 992 F.2d 1015 (9th Cir. 1993). “[A] sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence.” Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc); see United States v. Reyes, 772 F.3d 1152, 1159 (9th Cir. 2014); see United States v. Rivera, 682 F.3d 1223, 1237 n.12 (9th Cir. 2012).

As stated previously, the Court agrees that the victim-agent’s statement and the corresponding medical evaluation formed the entire basis for both the Defendant and the Government’s assessment of the enhancement for the plea agreement. Thus, the information provided pre-plea was material. Based on this untrustworthy evidence and Sawyer’s admission at sentencing that the Government could prove causation and permanent injury, the Court sentenced Sawyer to 139 months’ incarceration, which was above the maximum 96-months’ incarceration had the Court not found bodily injury.

While the parties characterize the original evidence of permanent injury as false, the Court must determine whether the evidence is false as defined under the Ninth Circuit’s precedent. “Challenged information is deemed false or unreliable if it lacks ‘some minimal indicium of reliability beyond mere allegation.’ ” United States v. McGowan, 668 F.3d 601, 606-07 (9th Cir. 2012) (quoting United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009)); see United States v. Corona-Gonzalez, 628 F.3d 336, 342-43 (7th Cir. 2010) (vacating sentence because there was a distinct possibility that the district court relied on a nonexistent fact when it made its sentencing assessment); United States v. Wilson, 614 F.3d 219, 225 (6th Cir. 2010) (vacating sentence after recognizing “the general rule that a violation of due process exists when a sentencing judge relies upon erroneous information” (quoting Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2006)).

Given the subsequent conflicting evidence provided by the victim-agent, the Court finds that the information provided was false within the Ninth Circuit’s definition-of the term. There were not only opposing medical evaluations, but noncompliance by the victim-agent. The purported evidence against Sawyer lacked reliability since there was a medical evaluation after the original finding that there was no causation, and the victim-has refused to come forward, with his later medical evaluation. The sentencing enhancement was based solely on the allegation by the victim-agent, which the victim-agent is no longer willing to support. The Court finds it is not in the interests of justice to hold Sawyer to the terms of the plea agreement in the face bf subsequent revelations that wholly undermine the factual basis for the sentencing enhancement. The enhancement of Sawyer’s sentence by the Court was based on false information and was a violation of his due process rights. Therefore, the Court is permitted'to vacate his sentence. See United States v. Williams, 41 F.3d 496, 502 (9th Cir. 1994).

Actual Innocence under Escape Hatch Provision of § 2255

Because the Court finds adequate support in vacating Sawyer’s sentence due to involuntariness and due process violations, the Court need not address the motion’s argument about factual innocence.

Accordingly, IT JS ORDERED:

1) . The parties’ Joint Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2266 (Doc. 13; CV 16t00691t-CKJ; Doc. 32, CR 15- , 00897-CKJ-EJM) is GRANTED.
2) Petitioner’s judgment in CR 15-00897- .. . CKJ-EJM is VACATED (Doc. 29).
3) The Clerk of Court shall reopen CR ■ 15-00897-CKJ-EJM.
4) IT IS FURTHER ORDERED setting a CHANGE OF PLEA HEARING on November 22, 2017 at 10:45 a.m. before the Hqnorable Cindy K. Jorgenson. Counsel for the Government shall insure that Petitioner is present for the scheduled hearing. Counsel may submit to the Court any motions/proposed orders that will facilitate the Petitioner’s pres- ' ence at the hearing.
5) This matter is RESET for trial on December 6, 2017 at 9:30 a.m. Counsel are to be presént at 9:00 a.m.
6) Petitioner is ordered detained pending trial.
7) All motions, unless made during a hearing or trial, shall be in writing and shall be made sufficiently in advance of trial to comply with the time periods set forth in LRCiv. 7.2 and any court order and to avoid any delays in the trial. Pretrial motions may be heard before a magistrate judge and a Report and Recommendation will be provided to the district judge assigned to the case.
8) Excludable delay under 18 U.S.C. § 3161(h)(7) is found to commence on October .9, 2017 and end on December 18, 2017. Such time shall be in addition to other excludable time under the Speedy Trial Act and shall commence as of the day following the day that would otherwise be the last day for commencement of trial.
9) Any motion or stipulation to continue the scheduled trial date and change of plea hearing and/or deadline shall be filed with the Clerk of Court no later than 5:00 p.m., Monday, November 27, 2017. Alternatively, by that same deadline, if after consultation between government and defense counsel it is determined . that a motion to continue the scheduled trial date and change of plea deadline will not be filed, government counsel shall notify the Court by an email to the chambers email address that the case and counsel are ready to proceed to trial on the scheduled trial date. The notification shall also include the estimated number of trial days needed to complete the trial. 
      
      . Unless otherwise indicated, all documents are from Sawyer’s civil case, CV-16-00691TUC-CKJ.
     