Jose Perez v. United States ( 2022 )


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  •                               NOT FOR PUBLICATION                             FILED
    UNITED STATES COURT OF APPEALS                         MAY 24 2022
    FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    JOSE JESUS PEREZ, a.k.a. Jose Jesus, Jr.,          No. 19-55548
    a.k.a. Jose J. Perez
    D.C. Nos.     5:17-cv-02436-VAP
    Petitioner-Appellant,                          5:13-cr-00087-VAP-1
    v.
    MEMORANDUM*
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Virginia A. Phillips, District Judge, Presiding
    Argued and Submitted September 14, 2021
    Pasadena, California
    Before: GOULD, BERZON, and COLLINS, Circuit Judges.
    Jose Jesus Perez appeals the district court’s denial, without an evidentiary
    hearing, of his 
    28 U.S.C. § 2255
     motion, arguing that his counsel rendered
    ineffective assistance of counsel during unsuccessful plea negotiations. Perez
    asserts that, as a result of that ineffective assistance, he proceeded to a jury trial at
    which he was convicted of three counts of deprivation of civil rights under color of
    law in violation of 
    18 U.S.C. § 242
    . Reviewing the district court’s denial of a
    *
    This disposition is not appropriate for publication and is not precedent except as
    provided by Ninth Circuit Rule 36-3.
    § 2255 motion de novo, United States v. Aguirre-Ganceda, 
    592 F.3d 1043
    , 1045
    (9th Cir. 2010), and its denial of an evidentiary hearing for abuse of discretion,
    Stewart v. Cate, 
    757 F.3d 929
    , 934 (9th Cir. 2014), we affirm.
    I
    Because the district court did not hold an evidentiary hearing, we take as
    true the factual allegations in Perez’s § 2255 motion and in his declaration in
    support of that motion. United States v. Blaylock, 
    20 F.3d 1458
    , 1465 (9th Cir.
    1994); cf. Rule 2(b)(2), § 2255 Rules (requiring that a § 2255 motion “state the
    facts supporting each ground”). We consider those allegations together with “the
    files and records of the case” to determine whether Perez has established the
    elements of his claim of ineffective assistance of counsel during the plea
    bargaining process. See 
    28 U.S.C. § 2255
    (b). To prevail on that claim, Perez had
    to state sufficient facts to show: (1) “that counsel’s performance was deficient,”
    and (2) “that the deficient performance prejudiced the defense.” Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). Perez failed to make this showing.
    A
    Perez contends that his counsel failed adequately to explain the terms of the
    Government’s plea offer. However, Perez’s declaration acknowledges that his
    counsel told him about the key provision of the offer—that it provided for a 10-
    year sentence, which was well below the statutory maximum of life imprisonment.
    2
    Perez has not identified any other material term of the offer that should have been
    communicated to him but was not, nor has he pleaded any facts to show that any
    such omitted details would have caused him to accept the offer. Hill v. Lockhart,
    
    474 U.S. 52
    , 59 (1985). Beyond that, Perez notes only that his counsel did not
    provide him with a written copy of the plea agreement. Mere failure to provide the
    actual written plea agreement, without more, does not establish ineffective
    assistance. See United States v. Rivera-Sanchez, 
    222 F.3d 1057
    , 1061 (9th Cir.
    2000).
    Perez also asserts that he directed his counsel to present a counteroffer in
    which he would agree to plead guilty in exchange for a five-year sentence.
    Assuming that his counsel failed to communicate that counteroffer, we conclude
    that Perez has not established prejudice. His motion provides no facts to support a
    plausible inference that the Government would have accepted a five-year sentence.
    B
    Perez further contends that, in two respects, his counsel failed to provide
    him with “the information he needed to make an informed decision whether to
    accept” the Government’s plea offer. Both of these contentions fail.
    First, Perez asserts that his counsel “never explained the significance of
    [Perez’s] status as a uniformed, armed, law enforcement officer, and how that
    reality could result in an increase in [the] statutory maximum punishment for the
    3
    offenses from 10 years to life.” But the premise of Perez’s argument—that his
    status as an officer could increase the statutory maximum punishment—is
    incorrect. Rather, the factors that could have increased—and ultimately did
    increase—his maximum sentence to life imprisonment were the alleged
    “aggravated sexual abuse” of both victims and the alleged “kidnapping” or
    “attempt to kidnap” one of those victims. See 
    18 U.S.C. § 242
    . There was no
    obligation for Perez’s counsel to tell Perez that his “status as a uniformed, armed,
    law enforcement officer . . . could result in an increase in [the] statutory maximum
    punishment” because such a statement would not have been accurate. Moreover,
    Perez was provided with a copy of the indictment, and he was repeatedly advised
    on the record, prior to turning down the plea offer, that his § 242 charges were
    based on alleged sexual abuse he committed using his authority as an officer, and
    that he faced a life sentence on each count. Even assuming counsel did not
    specifically address these matters with Perez, Perez has failed to show prejudice in
    light of these on-the-record statements.
    Second, Perez asserts that his counsel made an “objectively unreasonable
    assessment of the strength of the Government’s case.” Perez alleges that his
    counsel told him that he had a “winnable case” and that counsel “did not think that
    the Government could prove any set of facts qualifying [Perez] for the higher
    statutory maximum.” Where, as here, the defendant knew the material terms of the
    4
    plea offer but asserts that counsel failed to accurately assess the strength and
    weaknesses of the case, we require the defendant to “demonstrate gross error on
    the part of counsel,” meaning that “the advice he received was so incorrect and so
    insufficient that it undermined his ability to make an intelligent decision about
    whether to accept the plea offer.” Turner v. Calderon, 
    281 F.3d 851
    , 880 (9th Cir.
    2002) (simplified). Thus, absent a showing that counsel’s “defense strategy and
    presumably sincere prediction” were outside the wide range of reasonable
    professional judgment, a defendant cannot rely on a self-serving assertion, “made
    years later,” that with different advice, he would have accepted the plea offer. 
    Id. at 881
    . “If the rule were otherwise, every rejection of a plea offer, viewed perhaps
    with more clarity in the light of an unfavorable verdict, could be relitigated upon
    the defendant’s later claim that had his counsel better advised him, he would have
    accepted the plea offer.” 
    Id.
    Applying these standards, we conclude that Perez failed to present sufficient
    facts to establish that his counsel’s assessment of the case, at the time the plea offer
    was rejected, was outside the range of reasonable professional judgment. Although
    Perez now paints the evidence against him as overwhelming, a reasonable defense
    counsel could conclude that the case was triable in that it largely hinged on the
    credibility of the two victims, both of whom were prostitutes with potentially
    significant credibility issues. The fact that the district court subsequently granted
    5
    an in limine motion by the Government excluding some key impeachment material
    does not show that counsel’s earlier assessment was unreasonable. Indeed, in
    granting that motion, the district court itself acknowledged that it was a “close
    call.” “Trial counsel was not constitutionally defective because he lacked a crystal
    ball.” Turner, 
    281 F.3d at 881
    .1
    II
    For these reasons, we conclude that, disregarding the competing statements
    of Perez’s counsel that the Government presented in opposition to the § 2555
    motion, Perez’s “allegations, viewed against the record, . . . do not state a claim for
    relief.” United States v. Burrows, 
    872 F.2d 915
    , 917 (9th Cir. 1989). The district
    court therefore properly denied the § 2255 motion without holding an evidentiary
    hearing.
    AFFIRMED.
    1
    Even assuming that the district court should have considered the additional
    declaration from Perez’s ex-wife, Gabriela Burrell, which was submitted with his
    reply brief opposing dismissal, it would not alter our conclusions. Assuming that
    the comments of counsel that Burrell recounts during her “first visit” to his office
    occurred before the plea offer was rejected, the comments merely reiterate Perez’s
    allegation that counsel then viewed the case as a triable credibility contest in which
    there was substantial impeachment material. Burrell’s additional vague contention
    that counsel was difficult to reach weeks later, “[a]s the matter progressed,” does
    not establish that counsel’s assessment of the case at the time the plea was rejected
    was outside the range of reasonable professional judgment.
    6