United States v. 2020-06-09 | 18-35526 | USA V. ANDREA VICKERS | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREA L. VICKERS,

Defendant-Appellant.

No. 18-35526

D.C. Nos. 3:15-cv-00006-SLG
3:14-cr-00003-SLG-1

MEMORANDUM
*

Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding

Submitted June 5, 2020
**

Anchorage, Alaska

Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.

Andrea L. Vickers appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate his conviction and sentence for carjacking in violation of 18
U.S.C. § 2119(1). Vickers contends that trial counsel was ineffective for advising
him to plead guilty to carjacking when counsel had not reviewed text messages

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

JUN 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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extracted from the victim’s cellphone that the government produced and had not
adequately investigated other evidence including cell tower records, Vickers’
cellphone, a visitor log from the halfway house from which Vickers had escaped,
and video surveillance footage from several businesses. After conducting an
evidentiary hearing, the district court denied relief. A claim of ineffective
assistance of counsel presents a mixed question of law and fact, which we review
de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). We also
review de novo the denial of a § 2255 motion. United States v. Swisher, 811 F.3d
299, 306 (9th Cir. 2016) (en banc). We affirm.
“[A] defendant who pleads guilty upon the advice of counsel ‘may only
attack the voluntary and intelligent character of the guilty plea by showing that the
advice he received from counsel,’” Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)
(quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)), constituted ineffective
assistance—that is, the advice constituted deficient performance and prejudiced the
defense, see id. at 58–59. As part of the plea agreement, Vickers retained his right
to allege “ineffective assistance of counsel” based on information not known or
reasonably known to him at the time of sentencing, and to challenge the
voluntariness of his plea.
To succeed on a claim that a guilty plea is involuntary based upon
ineffective assistance of counsel, the defendant must show that there is a

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“reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Id. at 59. When
“the alleged error of counsel is a failure to investigate or discover potentially
exculpatory evidence, the determination whether the error ‘prejudiced’ the
defendant . . . will depend on the likelihood that discovery of the evidence
would have led counsel to change his recommendation as to the plea.” Id.
This determination depends in large part on the likelihood the evidence
would have changed the outcome at trial. Id.
Vickers was charged with carjacking in violation of 18 U.S.C.
§ 2119(1). A person may be convicted of carjacking when the government
proves that: the defendant took a motor vehicle “from the person or presence
of another”; the motor vehicle had “been transported, shipped, or received in
interstate or foreign commerce”; the defendant used “force and violence” or
“intimidation” to “take[] [the] motor vehicle”; and the defendant acted “with
the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119.
The main evidence against Vickers was the victim’s description of the
carjacking incident, including her grand jury testimony that Vickers, who
possessed a gun, a package of toilet paper, and a can of gasoline, forced the
victim and her young child into her car and then drove them to various places
in Anchorage, and at one point, threatened to burn them. The police found a

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can containing gasoline in the car after the carjacking. Even if Vickers’
attorney’s representation fell below an objective standard of reasonableness
applicable to the review or investigation of evidence, Vickers fails to
demonstrate that counsel’s deficient performance caused resulting prejudice.
See Lafler v. Cooper, 566 U.S. 156, 163 (2012) (“In the context of pleas a
defendant must show the outcome of the plea process would have been
different with competent advice.”).
Vickers argues that had counsel reviewed, investigated, and obtained
certain evidence Vickers would not have pleaded guilty to carjacking. But
none of the evidence Vickers points to undermines the factual basis of the plea
agreement or refutes the elements of carjacking and thus does not create a
“likelihood that discovery [and review] of the evidence would have led
counsel to change his recommendation as to the plea.” Hill, 474 U.S. at 59;
see 18 U.S.C. § 2119. Additionally, Vickers’ claims of ineffective assistance
of counsel rely heavily on inconsistencies between the victim’s grand jury
testimony and the other evidence. But, during the relevant times, trial counsel
would not have had access to the grand jury transcript.
1
See 18 U.S.C.

1
In the district court, Vickers argued that trial counsel was ineffective for failing to
try to obtain the victim’s grand jury testimony. The district court rejected that
claim finding no prejudice because even if counsel had requested the transcript, the
district court would not have required its production unless the victim testified at
trial. Vickers does not raise that issue in this appeal.

5
§ 3500(a)–(b), (e)(3) (requiring the government to produce “any statement,”
including testimony provided before the grand jury, only after the witness has
testified on direct examination at trial); see also Strickland v. Washington, 466
U.S. 668, 689 (1984) (the court “evaluate[s] the conduct from counsel’s
perspective at the time”). Thus, trial counsel could not have advised Vickers
based on that testimony, and Vickers could not have considered that testimony
in weighing his decision to plead guilty. See Hill, 474 U.S. at 59.
Vickers also argues that without evidence to support the victim’s post-plea
recantation—the evidence he alleges counsel failed to investigate—he did not
believe moving to withdraw his guilty plea was a viable option. But the victim’s
recantation was general and the only specific statement she recanted was that
Vickers had a gun. None of the evidence that Vickers argues his counsel should
have reviewed or investigated plausibly corroborated the victim’s recantation
related to whether Vickers possessed a gun. Additionally, counsel negotiated a
factual basis for the plea agreement that did not include any reference to Vickers’
possessing a gun. Moreover, under the plea agreement Vickers avoided charges
related to firearms and witness tampering. Accordingly, because Vickers fails to
show that the cellphone data, cell tower information, visitor log, or the surveillance
footage would have led counsel to change his recommendation as to his plea, no
prejudice resulted from counsel’s actions. See id.

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AFFIRMED.