The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT
AND RECOMMENDATION AND
Petitioner, Brian Jeffries, filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The United States moves to dismiss Jeffries' motion without the benefit of an evidentiary hearing. This court referred Jeffries' case to Magistrate Judge Duffy for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Duffy submitted her report on September 22, 2011, and recommended that the majority of Jeffries' claims be dismissed with prejudice, but that an evidentiary hearing be held on his claim that his counsel was ineffective when he failed to object to the prosecutor's breach of the plea agreement during Jeffries' first sentencing hearing.
De novo review is required for any objections that are timely and specific. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990). The United States timely objected to Judge Duffy's finding that Jeffries is entitled to an evidentiary hearing on his claim that his counsel was ineffective when he failed to object to the prosecutor's breach of the plea agreement at his first sentencing hearing.
The United States contends that the prosecutor did not breach the plea agreement because Jeffries' own conduct would have permitted the prosecutor to withdraw the recommendation for acceptance of responsibility. Because the prosecutor did not breach the plea agreement, the United States contends that Jeffries' counsel was not ineffective in failing to object.
Jeffries was indicted on two charges of aggravated sexual abuse of two minor children who were over the age of 12 but under the age of 16. See CR 07-50103, Docket 1. Jeffries later entered into a written plea agreement with the government, which allowed him to plead guilty to a single count of abusive sexual contact of a child in violation of 18 U.S.C. §§ 1153, 2244(a)(6), and 2246(3). CR Docket 20. The government agreed to recommend a three-point reduction in Jeffries' base offense level for acceptance of responsibility unless "there is significant evidence disclosed in the presentence report to the contrary." Id. at 2, ¶ 4. Both Jeffries and the government stipulated that they would argue for a sentence within the United States Sentencing Guidelines range.
A written statement of factual basis accompanied the plea agreement. CR Docket 23. In the factual basis, Jeffries agreed that he had used force to touch the victim's genitals under her clothing. Id. But after he signed the agreement and before he entered a guilty plea, Jeffries sent a letter to the court informing it of "the actual facts in his case." CR Docket 37. In the letter, Jeffries admitted that his actions were wrong because of the age difference between him and the victim, but he denied using force and insisted that the relationship was consensual. Id. Jeffries also argued that "that there was no rape on the date the alleged victim states" and that he and the victim "had consensual sex in [his] car." Id. The court questioned Jeffries about the letter at his change of plea hearing. CR Docket 52, Transcript of Plea, at 2-7. At the hearing, Jeffries asked the court to disregard the letter and reaffirmed the factual basis statement. Id. Jeffries testified that he had read the written plea agreement and the statement of factual basis before he signed it and he had reviewed these documents with his lawyer. Id. at 10. But when the Presentence Investigation Report (PSR) was being prepared in anticipation of sentencing, Jeffries sent a similar letter to the probation office.
On July 30, 2008, Jeffries was sentenced. The PSR calculation for Jeffries' USSG range did not include the three-point downward adjustment for acceptance of responsibility as contemplated by the plea agreement. The author of the PSR did not apply the acceptance of responsibility adjustment because of the two letters Jeffries had written. CR Docket 54, Transcript of Sentencing Hearing, at 3-5. Jeffries' attorney objected to this and explained that Jeffries never denied that he acted unlawfully. Id. Rather, Jeffries wrote the letters to explain the context in which the crime occurred, so the court would not think he committed the crime "out of the blue." Id.
The court then asked the government to respond to Jeffries' objection. The Assistant United States Attorney was equivocal. She responded that "my hands are somewhat tied, given the plea agreement." Id. at 6. The Assistant United States Attorney continued to discuss the contents of the letter and concluded by stating:
I believe the Court is on firm ground in not giving acceptance based on what his interview was with probation and her interpretation of that interview based on his words in the letter.
But, Your Honor, based on our plea agreement I feel that the government cannot support that without some more significant evidence, so we leave it up to the court's good judgment.
Id. at 7. Despite her conclusion that the government did not have "significant evidence" demonstrating that Jeffries did not accept responsibility for his crime, the Assistant United States Attorney did not at any point affirmatively recommend that Jeffries be given the acceptance of responsibility reduction. Jeffries' attorney did not object to this omission.
The court then stated that the two positions were miles apart; in the factual basis statement Jeffries indicated that there was forcible sexual contact with the victim but "since his guilty plea, the defendant has denied his culpability for the crime to which he pled guilty and has tried to present a picture to this court of a consensual sexual encounter." Id. at 7.*fn1 Jeffries attorney indicated that Jeffries would clarify his statements for the court if necessary. When asked about the government's position, the Assistant United States Attorney replied that:
The defendant seems to put an awful lot of responsibility on the part of the victim. And he's indicated no remorse, only remorse for being caught and being charged with these things, et cetera. And I think that the court, again, is on firm ground to look at those thoughts of the defendant in determining whether ...