USA v. Alimi

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
SPRESIM ALIMI,
Defendant.
Case No. 3:16-cr-00028-TMB-1
ORDER ON DEFENDANT’S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY
[DKT. 118]
I. 	INTRODUCTION
The matter comes before the Court on Defendant Spresim Alimi’s “Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255” (the “Motion”).1 The United States filed
an Opposition to the Motion, and Alimi filed a Reply.2 The Motion is now fully briefed and ripe
for resolution. The Court finds that a hearing is not necessary.3 For the reasons discussed below,
Alimi’s Motion is DENIED.
II. 	BACKGROUND
A. Case and Underlying Conviction
In November 2015, investigators with the United States Air Force Office of Special
Investigations (“AFOSI”) learned that personnel on Joint Base Elmendorf-Richardson were
illegally purchasing oxycodone pills from someone later identified as Alimi.4 Through the use of
1 Dkts. 118 (Motion); 118-4 (S. Alimi Decl.); 127 (Notice of Intent to Stand on Pro Se Motion).
2 Dkts. 133 (Opposition); 156 (Reply).
3 See D. Ak. HCR 8.1 (Evidentiary Hearing).
4 Dkts. 76 at ¶¶ 11–14 (Revised Final Presentence Investigation Report (“PSR”)); 156 at 3.
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a confidential informant (“CI”) AFOSI agents learned that Alimi owned and operated Alpina Auto
Repair Shop (“Alpina Auto”) in Anchorage5 and was selling pills out of the business.6 In
December 2015, AFOSI notified a DEA Task Force Officer of the suspected drug dealing
operation out of Alpina Auto and that suspected drug dealer and owner of the auto shop was
Alimi.7 Following surveillance and several controlled buys by CIs from Alimi at Alpina Auto,
DEA officers obtained and executed search warrants at three Anchorage locations: (1) Alimi’s
residence; (2) Alpina Auto; and (3) a storage shed under Alimi’s name at Midtown Storage.8
On March 9, 2016, upon execution of the search warrant at Alimi’s residence, agents
located several guns missing serial numbers, $88,146 in cash, and documents showing Alimi was
the owner of Alpina Auto.9 Also on March 9, 2016, after searching Alpina Auto, agents located
multiple firearms—several of which had no serial numbers and others that were reported stolen—
and Alimi’s red “Snap-on Toolbox” containing, among other things, 4,366 30-milligram
oxycodone pills and $1,500 in cash.10 The same night, Alimi’s storage shed at Midtown Storage
5 Dkts. 26 at 4 (Plea Agreement); 76 at 1, ¶¶ 11–13. In his Motion and Declaration, Alimi disputes
that he is the owner of Alpina Auto. Dkts. 118 at 2; 118-4 at 2.
6 Dkts. 76 at ¶¶ 11–13; 118 at 2.
7 Dkts. 76 at ¶¶ 14–15; 118 at 2.
8 Dkts. 26 at 4–5; 76 at ¶¶ 16–24; 118 at 2–3.
9 Dkts. 26 at 5; 76 at ¶¶ 21–22; 118 at 3.
10 Dkts. 26 at 5; 76 at ¶ 23; 118 at 3.
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was searched by agents who located a red Dodge Viper which had been purchased on January 8,
2016, for $125,50011 with a $30,000 cash down payment provided by a family member of Alimi.12
Alimi was indicted by a grand jury for possession of oxycodone with intent to distribute.13
On July 7, 2016, Alimi pleaded guilty to possession of oxycodone with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).14 As a term of the Plea Agreement, Alimi agreed
to waive “the right to appeal on all grounds contained in 18 U.S.C. § 3742” if the Court imposed
a sentence that did not exceed the statutory maximum—twenty years imprisonment15—and “all
rights to collaterally attack the resulting conviction(s) and/or sentence” with the exceptions of:
(1) “any challenge to the conviction or sentence alleging ineffective assistance of counsel – based
on information not now known to defendant and which, in the exercise of reasonable diligence,
could not be known by the defendant at the time the Court imposes sentence,” and (2) any
“challenge to the voluntariness of the defendant’s guilty plea.”16 As part of the factual basis, Alimi
admitted that the $89,646 in cash represented proceeds from selling oxycodone, and that the Viper
was also purchased with drug proceeds.17
11 The Plea Agreement states that the Viper was purchased for $128,500. See Dkt. 26 at 5.
However, at the Change of Plea Hearing, the purchase price was corrected to $125,500. Dkt. 106
at 23:8-17 (noting the correct value of the Viper was $125,500) (Change of Plea Hearing Tr.).
12 Dkts. 26 at 5; 76 at ¶ 24; 118 at 3.
13 Dkt. 2 (Indictment).
14 Dkts. 26; 106.
15 Dkt. 26 at 13; see 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
16 Dkt. 26 at 2, 13.
17 Dkts. 26 at 6.
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Follow the entry of plea hearing, Alimi fired his counsel, Rex Butler, and retained Vikram
Chaobal.18 Chaobal initially told the Court that Alimi would be filing a motion to withdraw from
the Plea Agreement19; however, Chaobal subsequently advised the Court that Alimi wished to
proceed to sentencing.20 Chaobal ended his representation of Alimi, and the Court appointed new
counsel; Assistant Public Defender Darrel Gardner assumed representation of Alimi.21
Alimi, now represented by Gardner, proceeded to sentencing.22 At the January 2, 2018
Sentencing Hearing, the Court found that the seized cash and Dodge Viper down payment were
properly converted to drug quantities and found a base offense level of 29—as stated in the PSR.23
The Court further heard testimony and argument about whether a firearms and premises
enhancement were warranted and found that Alpina Auto had been maintained by Alimi to
distribute drugs, adjusting the base level offense to 31.24 With a base offense level of 31 and a
criminal history of IV, the Court noted the applicable Sentencing Guidelines range was 151–188
18 Dkts. 32 (Butler’s Motion to Withdraw); 37 (Chaobal’s Notice of Appearance).
19 Dkts. 51 (Minute Entry re Status Conference); 111 (Tr. Re Status Conference).
20 Dkt. 56 (Notice of Intent to Continue and Not Withdraw Plea).
21 See Dkts. 67–68; see also Dkt. 73 (Unopposed Motion to Continue Imposition of Sentence
Hearing).
22 See Dkts. 67–68; 73; 107 (Tr. of Sentencing Hearing); 113 (Sealed Tr. of Sentencing Hearing).
23 See Dkts. 107 at 37–38 (applying two level premises enhancement to reach 31 base level
offense); 156 at 7; see also Dkt. 76 at ¶ 40 (the base level offense of 29 included a firearms
enhancement). Although the Court heard argument and did not explicitly conclude the firearms
enhancement applied, the Court accepted the PSR recommendation and, based on the final offense
calculation of 31, it appears this enhancement was included in the offense calculations. See Dkt.
107 at 37–38, 41–46.
24 Dkts. 107 at 35–38; 156 at 7.
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months.25 The Court sentenced Alimi to a below-guidelines sentence of 136 months of
imprisonment and three years of supervised release to follow.26
Despite the conditions in the Plea Agreement, Alimi appealed his conviction.27 The
Government moved to dismiss Alimi’s appeal in light of the valid appeal waiver; the Ninth Circuit
agreed the appeal waiver was valid and dismissed Alimi’s appeal.28
B. Section 2255 Motion
Alimi, proceeding pro se, filed the present Motion on May 17, 2019.29 In his Motion, Alimi
raises the following five grounds for relief:
(1) 	His first attorney and trial counsel, Butler, was ineffective for failing to advise
Alimi on potential United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing
Guidelines”) calculations and for failing to argue that the increase of the drug
quantity was based on known factual error;30
(2) 	His guilty plea was not entered knowingly and voluntarily;31
(3) 	Butler was ineffective for failing to file a motion to suppress evidence obtained via
a defective search warrant.32
25 Dkts. 107 at 38; 156 at 7.
26 Dkts. 95 (Judgment); 107 at 50.
27 Dkts. 100 (Notice of Appeal); 101 (Notice of Appeal).
28 Dkt. 116 (Ninth Circuit Order re Dkt. 101); see also Dkt. 156 at 2.
29 Dkt. 118.
30 Id. at 7‒11
31 Id. at 11‒13.
32 Id. at 20‒27. In his Motion, Alimi does not identify which attorney specifically failed to file a
motion to suppress on his behalf. See id. In his Reply, Alimi clarifies it was Butler who failed to
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(4) 	His second attorney, Chaobal, was ineffective for failing to file a motion to
withdraw Alimi’s guilty plea;33 and
(5) 	His third attorney, Gardner, was ineffective for failing to object to and argue against
sentencing enhancements under U.S.S.G. §§ 2D1.1(b)(1) and (b)(12) that were
factually incorrect.34
Based on those five grounds for relief, Alimi requests that the Court vacate his sentence.35
On January 31, 2020, the Government filed its Opposition to the Motion.36 The
Government argues that Alimi’s first claim against Butler is without merit because even if Butler
incorrectly determined that only the actual oxycodone pills seized by law enforcement would be
included in the relevant conduct, such a mistake would not amount to constitutionally defective
performance; further, Alimi fails to demonstrate that he was prejudiced by this alleged
ineffectiveness, especially given the sentence imposed complied with the terms of the Plea
Agreement and applicable law.37 The Government further argues that Alimi cannot show that his
plea was not knowing and voluntary merely because the change of plea colloquy did not include
move to suppress certain evidence. Dkt. 156 at 14–26. Further, “the exclusionary rule generally
does not apply to sentencing proceedings,” United States v. Haynes, 216 F.3d 789, 801 (9th Cir.
2000), and, therefore, there can be no viable claims with respect to Chaobal and Gardner, who
represented Alimi during the post-conviction stage. Accordingly, the claim can only apply to
Butler, who represented Alimi at the pretrial and plea stages.
33 Dkt. 118 at 13‒14.
34 Id. at 14‒20.
35 Id. at 27.
36 Dkt. 133.
37 Id. at. 7–9.
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an 	express 	advisement 	about 	the Sentencing 	Guidelines 	range Alimi 	would 	face.38 The
Government points out that courts are not obligated under Federal Rule of Criminal Procedure
(“Rule”) 11 to advise a defendant of applicable offense level under the Sentencing Guidelines or
the probability that a defendant may receive one sentence or another.39 Further, the written Plea
Agreement expressly advised Alimi that his admission in the factual basis could be used for
imposition of the sentence.40 The Government also argues that based on the change of plea
colloquy and the present Motion, it is clear that Alimi is a fluent English speaker and any argument
that a language barrier precluded him from entering a knowing and voluntary plea should be
rejected.41
The Government further states that Chaobal provided clear justification to the Court and
the Government why he did not pursue withdrawal of Alimi’s guilty plea and, Alimi cannot show
Chaobal’s performance was deficient or that Alimi was prejudiced by Chaobal’s decision not to
file a meritless motion.42
The Government argues that to show Butler was ineffective for failing to file a motion to
suppress, Alimi must show that “every competent attorney would have known that they would
have succeed” or that “no competent attorney would think a motion to suppress would have
failed.”43 The Government argues that Alimi has failed to show that the theoretically suppressible
38 Id. at 10–11.
39 Id.
40 Id. at 11 (citing Dkt. 26 at 4).
41 Id. at 11–12.
42 Id. at 12–13.
43 Id. at 17–18 (emphasis in original internal quotation marks and citation omitted).
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evidence was so significant “that but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”44 Here, the Government argues Alimi cannot show that
Butler knew about the alleged Miranda violation of Alimi admitting to ownership of the toolbox
or that there is reason to think that this putative admission would have played any meaningful role
in the Government’s proof, given all the other overwhelming evidence against Alimi, such that
suppression would have altered Alimi’s calculus as to whether to plead guilty.45 The Government
responds to Alimi’s argument about a defective search warrant by stating that any argument to
suppress evidence on the bases raised by Alimi would have been fruitless and Butler’s failure to
raise such an argument was not ineffective.46 Also, the original warrant was clearly signed by a
magistrate such that this challenge fails.47
Finally, regarding Alimi’s claim that Gardner was ineffective for failing to effectively rebut
the sentencing enhancements for (1) maintaining a premises for distributing narcotics and
(2) possessing firearms during the offense, the Government argues that Gardner did object to and
argue against the premises enhancement.48 Further, there is no indication that this enhancement
played any role in the sentence Alimi received.49 Additionally, Alimi does not identify anything
44 Id. at 18 (internal quotation marks and citations omitted).
45 Id. at 19. The Government also notes that insofar as Alimi attempts to argue the alleged Miranda
violation lead to the discovery of physical evidence, this claim fails because Alimi does not allege
his statement was involuntary and a Miranda violation does not require suppression of the fruits
of a suspect’s unwarned but voluntary statements. Id. at 19–20.
46 Id. at 19–21.
47 Id. at 20–22.
48 Id. at 14–17.
49 Id. at 17.
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Gardner did wrong or suggest how Gardner should have acted differently, and Alimi does not
claim Gardner knew about Alimi’s assertion that the firearms did not belong to him. 50 Alimi cannot
show he was prejudiced by Gardner’s performance because any objection that Gardner could have
hypothetically made would have been overruled.51 Therefore, the Government argues that Alimi’s
§ 2255 Motion should be denied.52
Alimi, now represented by counsel, filed a Reply and Memorandum of Points and
Authorities on September 17, 2020.53 In reply, Alimi argues that Butler essentially abandoned
Alimi prior to his change of plea hearing and that Butler’s representation was clearly deficient
because a reasonable lawyer would have understood that under the Sentencing Guidelines, Alimi’s
offense would be “greatly enlarged” given the dollar amounts alleged to be drug proceeds.54 Alimi
argues that a reasonable lawyer would have investigated the source of the funds seized by the
Government, would have argued not all of the monies were drug proceeds, and would have advised
the Government and probation office to not include all of the proceeds in the calculation of the
Base Offense Level.55 Instead, Alimi argues, “Butler apparently had no idea those same sums
would be converted to drug quantit[ies] under the guidelines” and that Butler “has not denied that
he failed to consider the fact that the additional dollar amounts would be converted to drug
50 Id. at 14–16.
51 Id. at 14–17.
52 Id. at 1–2, 22.
53 Dkt. 156.
54 Id. at 8–10, 12–13.
55 Id. at 12–13.
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quantities and the Government tacitly acknowledges that it did not consider that fact either.”56
Alimi argues it appears Butler failed to consider this, despite Alimi telling Butler that the majority
of the money seized did not belong to him and Butler’s assurances that Alimi would not be held
responsible for more than approximately $5,000.57
Additionally, Alimi argues it appears Butler also failed to read all of the discovery and
failed to note that Alaska State Trooper Joel Miner (“Trooper Miner”) continued to interview
Alimi after Alimi had asserted his Fifth Amendment right.58 Butler should have noted this Fifth
Amendment violation and moved to suppress any evidence seized from the tool box after Alimi
admitted ownership.59 Further, Alimi argues Butler should have realized the warrant to search the
auto shop, and ultimately the toolbox, was not supported by probable cause and should have moved
to suppress the fruits of this search.60 Butler also failed to discuss with or to advise Alimi that a
two level enhancement for maintaining a premises for the purpose of facilitating narcotics
distribution would apply.61
Alimi also argues that Chaobal and Gardner should have known Alimi pleaded guilty
“based on woefully inadequate representation” and should have taken corrective measures to
withdraw Alimi’s plea “but failed to do so, even after [Alimi] requested that they do so.”62 Alimi
56 Id. at 9, 13.
57 Id. at 9.
58 Id. at 10, 16–22.
59 Id. at 16, 20–22.
60 Id. at 21–26.
61 Id. at 26–28.
62 Id. at 28.
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argues any motion to withdraw would likely have been granted because Alimi demonstrated fair
and just reasons.63 Alimi argues he was prejudiced by this inadequate representation because but
for counsel’s errors, he would not have pleaded guilty or “waived his appeal and collateral attack
rights.”64
Therefore, Alimi seeks to vacate the sentence and be resentenced with new counsel.65
Because there is no declaration from Butler in the record, Alimi argues this omission alone
warrants an evidentiary hearing.66
III. 	LEGAL STANDARD
Under 28 U.S.C. § 2255, a district court may “vacate, set aside, or correct” a sentence of a
federal prisoner that was imposed in violation of the Constitution or a law of the United States.67
On a motion for relief under 28 U.S.C. § 2255, “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make findings of fact and conclusions of law
with respect thereto.”68 If a court determines that relief is warranted, “the court shall vacate and
set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.”69
63 Id. at 28–30.
64 Id. at 30 –33.
65 Id. at 34; Dkt. 118 at 27.
66 Dkt. 156 at 9, 34.
67 28 U.S.C. § 2255(a).
68 28 U.S.C. § 2255(b).
69 Id.
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However, “the district court may deny a § 2255 motion without holding an evidentiary
hearing if ‘(1) the petitioner’s allegations, accepted as true, would not entitle him to relief; or
(2) the allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or allege conclusions rather than statements of fact.’”70 Thus, “if the record
refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.”71 “Section 2255 requires only that the district court
give a claim careful consideration and plenary processing, including full opportunity for
presentation of the relevant facts.”72
Furthermore, “where the issue of credibility can be ‘conclusively decided on the basis of
documentary testimony and evidence in the record,’ no evidentiary hearing is required.”73 In
70 United States v. Geozos, No. 3:06-CR-082-RRB-JDR, 2010 WL 4942571, at *2 (D. Alaska
Nov. 24, 2010) (quoting Dhillon Khosla, 28 U.S.C. § 2255 Checklist/Updated Supplement to
Habeas Corpus Outline p.5 (2005)); see also Baumann v. United States, 692 F.2d 565, 571 (9th
Cir. 1982) (“Mere conclusory statements by the petitioner do not justify a hearing.”) (citation
omitted); Lopez-Lopez v. United States, No. CR 05-1242 TUC-DCB, CV 06-489 TUC-DCB, 2006
WL 2850055, at *1 (D. Ariz. Sept. 28, 2006) (“A district court shall summarily dismiss a
§ 2255 petition ‘[i]f it plainly appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to relief.’” (quoting Rule 4(b),
Rules Governing § 2255 Actions)); Bonds v. United States, No. C18-0131-JCC, 2018 WL
2216089, at *2 (W.D. Wash. May 15, 2018); see also Shah v. United States, 878 F.2d 1156, 115
(9th Cir. 1989) (internal quotation marks and citation omitted) (“Where a § 2255 motion is based
on alleged occurrences outside the record, no hearing is required if the allegations, ‘viewed against
the record, either fail to state a claim for relief or are ‘so palpably incredible or patently frivolous
as to warrant summary dismissal.’”) (quoting Marrow v. United States, 772 F.2d 525, 526 (9th
Cir. 1985)).
71 Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
72 Shah, 878 F.2d at 1159 (internal quotation marks and citation omitted).
73 Id. at 1159 (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1989)).
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general, “[s]olemn declarations in open court carry a strong presumption of verity.”74 “Where a
prisoner’s motion presents no more than conclusory allegations, unsupported by facts and refuted
by the record, an evidentiary hearing is not required.”75
A. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is rooted in the Sixth Amendment right to
counsel, which extends to the plea-bargaining stage of a criminal proceeding.76 A defendant
asserting a claim of ineffective assistance of counsel must satisfy the two-pronged test defined in
Strickland v. Washington.77 Under that test, a defendant must show that (1) counsel’s performance
was deficient, i.e., “fell below ‘an objective standard of reasonableness;’”78 and (2) that the
deficiency was prejudicial to the defense, i.e., “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”79
In addressing the first element, the performance prong, judicial scrutiny of an attorney’s
performance, especially in hindsight, is highly deferential.80 Attorney conduct should be evaluated
from the attorney’s perspective at the time of the representation.81 Generally, an attorney’s
74 United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987) (citations and internal quotation
marks omitted).
75 United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Johnson, 988
F.2d 941, 945 (9th Cir. 1993).
76 Lafler v. Cooper, 566 U.S. 156, 162 (2012); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985).
77 See 466 U.S. at 690–94.
78 Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 688).
79 Strickland, 466 U.S. at 694; see also United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988).
80 Strickland, 466 U.S. at 689.
81 Id.
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performance is strongly presumed to fall within the wide range of reasonably professional
competent assistance.82 “The court must [] determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally competent
assistance.”83
The second prong, prejudice, “focuses on the question [of] whether counsel’s deficient
performance renders the result of . . . the proceeding fundamentally unfair.”84 A reasonable
probability that the results of the proceeding would have been different is “a probability sufficient
to undermine confidence in the outcome.”85 A defendant must make a greater showing than simply
asserting an error that could theoretically have some effect on the outcome of the proceeding; but,
a showing by a preponderance of the evidence is not required by Strickland.86
Ultimately, a defendant must prove both deficient performance and consequent prejudice
to succeed in establishing ineffective assistance.87 The court may evaluate one or both prongs in
determining whether to grant a defendant’s habeas petition on these grounds. However, the court
need not inquire whether an attorney’s performance was deficient if such alleged deficiency could
not have resulted in prejudice under Strickland.
/ / /
82 Id.
83 Id. at 690.
84 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
85 Strickland, 466 U.S. at 694.
86 Duncan v. Ornoski, 528 F.3d 1222, 1246 (9th Cir. 2008).
87 United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (“[P]etitioner bears the
burden of establishing both.”) (emphasis added).
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/ / /
B. Ineffective Assistance of Counsel in Guilty Plea
“Because ‘an intelligent assessment of the relative advantages of pleading guilty is
frequently impossible without the assistance of an attorney’ . . . counsel [has] a duty to supply
criminal defendants with necessary and accurate information.”88 Where a habeas petitioner alleges
ineffective assistance of counsel when pleading guilty, “‘[t]he longstanding test for determining
the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among
the alternative causes of action open to the defendant.’”89
Collateral attacks predicated upon “[h]indsight and second guesses are also inappropriate,
and often more so, where a plea has been entered without a full trial.”90 Accordingly, collateral
review of such convictions exists only in “strictly limited” circumstances.91 For a guilty plea, a
petitioner can only “attack the voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was not within the range of competence demanded of
attorneys in criminal cases.”92 In addition, to satisfy the prejudice prong of the Strickland standard
88 Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (quoting Brady v. United States, 397 U.S. 742,
748 n.6 (1970)).
89 Signori, 844 F.2d at 638 (internal quotation marks altered) (quoting Hill, 474 U.S. at 56 (quoting
North Carolina v. Alford, 400 U.S. 25 (1970))).
90 Premo v. Moore, 562 U.S. 115, 132 (2011).
91 Bousley v. United States, 523 U.S. 614, 621 (1998) (citation omitted); United States v. Timmreck,
441 U.S. 780, 783–84 (1979)) (stating that “the concern with finality served by the limitation on
collateral attack has special force with respect to convictions based on guilty pleas” and concluding
defendant “had not suffered any prejudice inasmuch as he had received a sentence within the
maximum described to him at the time the guilty plea was accepted.”).
92 Signori, 844 F.2d at 638 (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)); see also United
States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005).
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in the context of a guilty plea, a defendant must “show the outcome of the plea process would have
been different with competent advice,” in other words, “‘that there is a reasonable probability that,
but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on
going to trial.’”93
IV. 	ANALYSIS
Alimi’s Motion raises five grounds for relief, and the Court discusses each in turn. First,
the Court concludes Alimi cannot show Butler was ineffective for (1) failing to advise about and
argue against an allegedly factually incorrect calculation regarding the drug proceeds seized, and
(2) failing to file motions to suppress various evidence. Further, Butler’s counsel was not so
deficient as to render Alimi’s plea involuntary. Alimi also cannot show Chaobal, in failing to
withdraw Alimi’s guilty plea, provided deficient representation. Additionally, Alimi cannot show
Gardner performance was constitutionally deficient because Gardner did not sufficiently argue
against a firearm and a premises enchantment. Finally, an evidentiary hearing is unnecessary to
resolve Alimi’s claims. Accordingly, Alimi’s Motion is DENIED. Nevertheless, the Court will
grant a Certificate of Appealability as to the issue of Butler’s representation and advisement on
Sentencing Guidelines calculations
A. Whether Butler Was Ineffective for Failing to Accurately Advise Alimi Regarding
Potential Sentencing Guidelines Calculations and for Failing to Argue Against a
Baseline Increase Based on Allegedly Factually Incorrect Calculations
Alimi asserts that Butler misled him about Sentencing Guidelines calculations and “failed
to inform [Alimi] that the Court must calculate the guidelines correctly” and that “the money found
93 Lafler, 566 U.S. at 163 (quoting Hill, 474 U.S. at 59); United States v. Baramdyka, 95 F.3d 840,
844 (9th Cir. 1996) (A claim of ineffective assistance used to attack the validity of a guilty plea
may be sustained where a petitioner establishes that the ineffective performance “affected the
outcome of the plea process such that absent the erroneous advice, he would have insisted on going
to trial.”) (citation and internal alterations and quotation marks omitted).
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in the safe at his home could all be construed as drug proceeds ($89,646), which could possibly
result in the District Court converting all the money into a higher drug quantity.”94 Further, Alimi
appears to argue his interest in the Dodge Viper was misunderstood or miscalculated by the
Court.95 Alimi argues that a reasonable lawyer would have investigated the source of those funds,
would have argued not all of the monies were drug proceeds, and would have advised the
Government and probation office to not include all of the proceeds in the calculation of the Base
Offense Level.96 Alimi argues it appears Butler failed to consider that dollar amounts would be
converted to drug quantities, despite Alimi telling Butler that the majority of the money seized did
not belong to him, and Alimi relied on Butler’s assurances that Alimi would not be held responsible
for more than approximately $5,000.97
Alimi argues that the author of the PSR and, consequently, the Court, improperly converted
money that Alimi did not possess an ownership interest in the drug proceeds that were then used
to increase Alimi’s base level offense from 28 to 30.98 A new argument Alimi raises in reply is
that Butler also failed to discuss with or advise Alimi that a two level enhancement for maintaining
a premises for the purpose of facilitating narcotics distribution would apply.99
94 Dkt. 118 at 7.
95 See id. at 9–10. At his Change of Plea Hearing, Alimi also stated that he was a co-owner of the
Viper, along with his uncle, and the Court assured Alimi that the forfeiture only applied to Alimi’s
ownership interest. Dkt. 106 at 15.
96 Dkt. 156 at 12–13.
97 Id. at 9, 13.
98 Id. at 12–13; Dkt. 118 at 5, 7, 12 (citing PSR at ¶¶ 11–12, 29–32).
99 Id. at 26–28.
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In support of his argument, Alimi attaches a Declaration.100 In his Declaration, Alimi states
that he did not realize that the words “‘purchased in part with the proceeds’” would “translate into
‘ghost dope.’”101 Alimi states that prior to accepting the Plea Agreement, Butler provided him
“with several document[s], including correspondence with [Butler’s] law office” and the
Government “which show that [parties] were all on the same page, calculating the amount of pills
at 4000” such that Alimi felt “secure” that his sentence would only reflect this quantity.102 Alimi
further declares that Butler knew that $70,000 of the amount seized from Alimi’s home belonged
to Alimi’s wife and that Butler told Alimi “there will be no consequences for admitting all the
money in the [P]lea [A]greement.”103 Additionally, Alimi declares his uncle, Rahman Alimi, had
a $25,080 legal stake in the Dodge Viper, and only $4,920 that Alimi had paid to his uncle came
from the sale of drugs—though Alimi does not indicate whether any of his attorneys were aware
of this arrangement.104
Alimi also attaches a declaration of his wife, Bessa Alimi, in which she states, of the
$89,646 seized from the Alimis’ home safe, $70,000 was Bessa Alimi’s own “legally earned
income[.]”105 Alimi attaches a declaration of his uncle, Rahman Alimi, in which Rahman Alimi
states he co-owned the 2016 Dodge Viper with his nephew and had made the $30,000 down
100 Dkt. 118-4.
101 Id. at 2.
102 Id.
103 Id. at 3.
104 Id. at 2.
105 Dkt. 118-1 at 2 (B. Alimi Decl.).
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payment from his own “legally earned funds.”106 Rahman Alimi also declares that he had an
agreement that Alimi would reimburse him all the payments and at the time the vehicle was seized
Alimi had made a total of 3 payments totaling $4,920 such that Rahman Alimi “maintained [a]
$25,080 interest in the down payment.”107 Alimi also attaches email correspondence between
Butler’s support staff and the Government indicating Butler had not yet had an opportunity to
answer Alimi’s questions and seeking an extension of time to discuss the Government’s offer.108
Included in the correspondence is a note from the Supervising U.S. Probation Officer which states
that the 4,000 pills seized result in a base offense level calculation of 30.109 Also included is a
sheet with notations, but no other information regarding its source, calculating the base offense
level at 28 for the 4,000 “Roxy” (oxycodone) pills.110
Paragraph 29 of the PSR states:
[Alimi] was responsible for $119,646 in drug proceeds, and 4,388 of Oxycodone
pills. The investigation revealed that [Alimi] sold six Oxycodone pills for $210 to
the CI, which equates to $35 per pill, and therefore the $119,646 in drug proceeds
converts to 3,418.50 of Oxycodone pills. As a result, the total amount of pills
attributed to [Alimi] is 7,806.50.111
Alimi expressly admitted under oath that the “$89,646 in cash found at his home and
business were proceeds from the distribution and sale of Oxycodone.”112 This demonstrates that
106 Dkt. 118-3 (R. Alimi Decl.).
107 Id.
108 Dkt. 118-2 (Email Correspondence).
109 Id. at 4.
110 Id. at 5.
111 Dkt. 76 at ¶ 29.
112 Dkts. 26 at 6; 106 at 23–24.
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Alimi did in fact understand that he was acknowledging that the seized money represented drug
proceeds. Further, in his Motion, Alimi seems to acknowledge that some additional quantity was
appropriate, even if he disagrees with the ultimate calculation in the PSR.113
Moreover, Alimi has failed to demonstrate prejudice. Assuming Butler concluded that only
the actual oxycodone seized by law enforcement would be included in relevant conduct, this
inaccurate prediction does not rise to the level of ineffective assistance of counsel.114 Alimi seems
to acknowledge that under the terms of the Plea Agreement, his relevant conduct could include,
by his own calculation, 5,067 oxycodone pills, and 1,018.40 kilograms of converted drug
weight.115 Alimi’s own calculation amounts to more than 1,000 kilograms, which results is the
same offense level of 30 as was actually applied in the PSR.116 If Butler failed to properly calculate
and advise Alimi regarding money-to-drug conversion, any failure on Butler’s part to realize how
the admitted drug proceeds could factor into relevant conduct was ultimately irrelevant to the
Sentencing Guidelines analysis in the actual case.
113 See Dkt. 118 at 8–11.
114 See Iaea, 800 F.2d at 865 (9th Cir. 1986) (“[A] mere inaccurate prediction [about sentencing
exposure], standing alone, would not constitute ineffective assistance.”); see also McMann v.
Richardson, 397 U.S. 759, 770 (1970) (The Sixth Amendment right to effective assistance of
counsel “is not a requirement that all advice offered by the defendant’s lawyer withstand
retrospective examination in a post-conviction hearing.”).
115 Dkt. 118 at 10–11.
116 U.S.S.G. § 2D1.1(c)(5) (Drug Quantity Table: base offense level 30 for “At least 1,000 KG but
less than 3,000 KG of Converted Drug Weight.”) (emphasis omitted); Note (K) to Drug Quantity
Table (“The term ‘Converted Drug Weight,’ for purposes of this guideline, refers to a nominal
reference designation that is used as a conversion factor in the Drug Conversion Tables set forth
in the Commentary below, to determine the offense level for controlled substances that are not
specifically referenced in the Drug Quantity Table or when combining differing controlled
substances.”); see also Dkt. 76 at ¶ 32.
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Additionally, because the Court thoroughly and accurately explained the terms of the Plea
Agreement, Alimi affirmed under oath that he understood and wanted to accept them, and the
sentence imposed fully complied with the terms of the agreement and the applicable law, Alimi
cannot show he was prejudiced by Butler’s representation. The Government’s offer to Alimi
outlined every material term of the Plea Agreement, including that Alimi could be punished by
imprisonment for up to 20 years and that the Court would calculate and consider the Sentencing
Guidelines range, but that this calculation was not binding on the Court.117 The offer also expressly
advised Alimi that because the Court was not bound by sentencing recommendations, he “may not
withdraw from this agreement or the guilty plea if the Court rejects the parties’ sentencing
recommendations at the sentencing hearing.”118 Alimi then appeared before this Court and was
placed under oath. Alimi stated he had read the Plea Agreement, understood its terms and
voluntarily accepted the agreement, and confirmed he was satisfied with Butler’s representation.119
He was again correctly advised of the penalty range he would face, and the role the Sentencing
Guidelines play in determining what sentence the Court actually imposed.120 Alimi swore that he
understood these points and confirmed that he had not received any promises beyond what was
contained in the written Plea Agreement.121
117 Dkt. 26 at 6, 9.
118 Id. at 3. Further, in his Declaration about a conversation with subsequent counsel, Chaobal, it
appears he read and clearly understood what the Court was considering in advance of sentencing.
See Dkt. 118-4 at 3.
119 Dkt. 106 at 7–8, 13–14, 19–20.
120 Id. at 10–11, 20–21.
121 Id. at 20; see also id. at 23–24 (Alimi noting the value of the Dodge Viper was $125,500 and
agreeing with the factual basis in the Plea Agreement the value of the pills seized was $150,000).
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Alimi was fully advised that the final Sentencing Guidelines calculation (and the final
sentencing decision) would be made by the Court, that his attorney could not guarantee that any
recommendation would be followed, and that he would be bound be the agreement even if the
sentence was harsher than he preferred. Because the Court thoroughly and accurately explained
the terms of the agreement, Alimi affirmed under oath that he understood and wanted to accept
them, and the sentence imposed fully complied with the terms of the agreement and the applicable
law, Alimi cannot demonstrate he was prejudiced by Butler’s performance in this respect.122
Alimi also argues in his Reply that Butler failed to accurately advise him that a two point
enhancement for maintaining a premises for the purpose of facilitating narcotics distribution would
apply.123 Alimi states that Butler “had absolutely no idea such a thing was possible and failed to
discuss the possibility” with Alimi.124 Alimi attaches no support for this argument, and in his
Declaration, Alimi does not raise this as an area of misunderstanding or confusion.125 Further, a
premises enhancement was far from a foregone conclusion. It was not included in the PSR
recommendations and was debated vigorously at sentencing by both parties. Assuming Alimi’s
allegations are true, a failure to predict that the Government might seek certain enhancements and
advise a defendant of such, can be cured where a court instructs a defendant regarding the
122 See, e.g., Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007) (citing Doganiere v. United
States, 914 F.2d 165, 168 (9th Cir. 1990) (holding that the petitioner “suffered no prejudice from
his attorney’s prediction because, prior to accepting his guilty plea, the court explained that the
discretion as to what the sentence would be remained entirely with the court”)); United States v.
Thornton, 23 F.3d 1532, 1533–34 (9th Cir. 1994) (per curiam); United States v. Rubalcaba, 811
F.2d 491, 494 (9th Cir. 1987).
123 Dkt. 156 at 26–28.
124 Id. at 27.
125 See Dkts. 118; 118-4.
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applicable mandatory maximum and minimum sentences, the advisory nature of the Sentencing
Guidelines, and the possibility the court could impose a more severe sentence than anticipated.126
Here, the Court advised Alimi regarding the above possibilities, curing any potential prejudice
regarding the premises enhancement.
As to Butler’s alleged failure to argue against the offense baseline increase based on
factually incorrect calculations, the Court directly asked Alimi whether the factual allegations in
the Plea Agreement were correct and whether he accepted them. Given Alimi’s admission, it is
unsurprising Butler did not offer argument regarding these facts. The Court, in reviewing Butler’s
actions, should “neither second-guess counsel’s decisions, nor apply the fabled [20-20] vision of
hindsight.”127 Accordingly, Alimi has failed to show Butler provided ineffective assistance of
counsel 	with 	respect 	to 	Butler’s 	advice 	and 	argument 	regarding 	applicable 	Sentencing
Guidelines.128
B. Whether Butler Was Ineffective for Failing to File a Motion to Suppress Alimi’s
Statements During the Search and Items Found in the Red Toolbox.
Alimi next argues that Butler was ineffective for failing to file motions to suppress his
statements regarding ownership of the red toolbox and fruits of this search.129 Alimi also argues
126 See Soto v. United States, Nos. CV F 08–0401 AWI, CR F 06–0315–06 AWI, 2009 WL
1862454, at *10 (E.D. Cal. June 29, 2009), aff’d sub. nom. United States v. Soto, 496 F. App’x
708 (9th Cir. Oct. 2, 2012); United States v. Chavez, 40 F. App’x 482, 484 (9th Cir. June 6, 2002).
127 Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994).
128 See United States v. Palomba, 31 F.3d 1456, 1460–61 (9th Cir. 1994).
129 Dkts. 156 at 10, 16–22; 118 at 20–26.
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Butler should have realized the warrant to search the auto shop, and ultimately the toolbox, was
not supported by probable cause and should have moved to suppress the fruits of this search.130
Specifically, Alimi argues there were material omissions in the search warrant with regard
to Trooper Miner’s interviews of confidential informants, including knowledge provided by an
informant about Alimi visiting his family abroad and leaving someone in charge of the drug sales
out of Alpina Auto, and Trooper Miner’s failure to include information about the red toolbox.131
Alimi also argues the search warrant lacked particularity because the affidavit in support did not
mention the locked toolboxes, the red toolbox did not “have any markings or other indications that
it belonged to” Alimi, and the warrant was facially overbroad.132
When a defendant has entered a plea agreement, analyzing whether counsel should have
filed a motion to suppress is a fraught exercise, both because “the potential for the distortions and
imbalance that can inhere in a hindsight perspective may become all too real” and due to the
“special difficulties in evaluating the basis for counsel’s judgment: An attorney often has insights
borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is
never as full as it is after a trial.”133 Accordingly, it is “a most substantial burden on the claimant
to show ineffective assistance” in this context.134 A habeas petitioner must show not only that the
130 Dkt. 156 at 21–26.
131 Dkt. 118 at 22–23.
132 Id. at 25–26; Dkt. 156 at 22–26 (noting Trooper Miner was informed by his confidential
informant that Alimi stored drugs and money in a red toolbox, but Miner’s affidavit “deliberately
failed to include any reference to the red tool box, evidencing that [Miner] either did not believe
the [informant] to be reliable . . . or that he did not believe the [informant’s] account otherwise
supportable[.]”).
133 Premo 562 U.S. at 125.
134 Id. at 132.
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motion to suppress would have succeeded but “that no competent attorney would think a motion
to suppress would have failed[.]”135 Further, a defendant who pleads guilty “does not necessarily
suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be
reversible error for the court to admit that evidence.”136 Rather, he must show “‘a reasonable
probably that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.’”137
1. 	Miranda Motion
In support of Alimi’s argument that Butler was ineffective for failing to file a motion to
suppress statements and evidence obtained following an alleged Miranda violation, Alimi states
in his Declaration that on March 9, 2016, Trooper Miner gave Alimi his Miranda warnings while
executing a search warrant of Alpina Auto Shop.138 Alimi declares he told Officer Miner “‘I want
to speak to my lawyer, I have nothing to say,’” but that Trooper Miner continued to ask Aimi
questions about the ownership of several toolboxes in the shop.139 Alimi declares he told Trooper
Miner “‘the red toolbox is mine’” and after being asked for the keys told Trooper Miner “‘the keys
for the red toolbox are in my pocket . . . the other toolboxes are not mine.’”140 Alimi also attaches
what he labels “Officer Joel Miner’s Report, Gov. Bate-Stamped 00799.”141 In the Report, Trooper
135 Id. at 124
136 Id. at 129.
137 Id. at 132 (quoting Hill, 474 U.S. at 59)
138 Dkt. 118-4 at 3.
139 Id.
140 Id.
141 Dkt. 118-5 (Miner’s Report–00799).
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Minor states he attempted to interview Alimi, and after providing Alimi with the search warrants
and reading Alimi his Miranda rights, Alimi declined to answer any questions.142 Trooper Miner
states he advised Alimi he would not ask him any questions “but that because of the search warrant,
[law enforcement] would appreciate [Alimi’s] assistance in expediting the search and minimizing
any damage to property.”143 Trooper Miner states he advised Alimi that law enforcement “would
be searching any locked vehicles[,] toolboxes[,] and safes on the premises either using keys or
through forcing locks if necessary” and asked “where the keys were for a red Snap-On toolbox,”
to which Alimi stated “the key was in his pocket.”144
Alimi has not shown “no competent attorney would think a motion to suppress would have
failed”145 or, put another way, that a competent attorney would have known the motion would
succeed. First, there is nothing indicating that Butler knew about the alleged Miranda violation of
Alimi admitting to ownership of the toolbox. Additionally, it is unclear this admission of
ownership would have played any meaningful role in the Government’s proof, given the other
evidence against Alimi, such that suppression of this statement regarding ownership of the toolbox
would have altered Alimi’s calculus as to whether to plead guilty.146 Further, insofar as Alimi
argues Butler should have moved to suppress the fruits of this search based on this alleged Miranda
violation, this argument also would have failed. Alimi does not allege his statement to Trooper
142 Id. at 2.
143 Id.
144 Id.
145 Premo 562 U.S. at 124.
146 E.g., Dkt. 107 at 18 (Trooper Miner’s testimony that a CI identified the toolbox as belonging
to Alimi and containing drugs).
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Miner was involuntary and a Miranda violation does not always require suppression of the fruits
of a suspect’s unwarned but voluntary statements.147 Alimi has failed to show that the theoretically
suppressible evidence was so significant “that but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.”148 Alimi cannot show Butler was ineffective for
failing to file a motion to suppress Alimi’s statement regarding ownership of the toolbox or the
fruits obtained following the statement.
2. 	Search Warrant
In support of Alimi’s argument that Butler was ineffective for failing to file a motion to
suppress because the search warrant was defective, Alimi also attaches Reports by Trooper
Miner149 and the search warrant and affidavit in support of the warrant for Alpina Auto.150 Alimi’s
primary argument is that Trooper Miner omitted material facts from the search warrant because he
failed to include information from an informant who “believed Alimi stored drugs and money at
the shop including a red toolbox . . . [and] believed the drugs were stored in one of the lockable
flat drawers . . . [and that] Alimi stor[ed] drugs in a coffee can or in a desk in the front room.”151
147 See United States v. Patane, 542 U.S. 630, 634, 639 (2004) (plurality opinion); id. at 645
(“Admission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an
accused’s coerced incriminating statements against himself. In light of the important probative
value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence
rationale[.]”) (Kennedy, J., concurring in the judgment); see also United States v. Jackson, 506
F.3d 1358, 1361 (11th Cir. 2007) (noting “Patane plurality and concurrence agreed, at least,
that Miranda does not require the exclusion of physical evidence that is discovered on the basis of
a voluntary, although unwarned, statement. As several of our sister circuits have recognized, this
narrow agreement is the holding of Patane.”).
148 See Hill, 474 U.S. at 59.
149 Dkts. 118-5; 118-6 (Miner’s Report–00795).
150 Dkt. 118-7 (Search Warrant & Search Warrant Aff.).
151 Dkt. 118-6 at 2 (capitalization normalized).
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To prevail on a claim regarding material omissions, a defendant must “make a substantial
showing that the affiant intentionally or recklessly omitted facts required to prevent technically
true statements in the affidavit from being misleading”152 As the Government correctly points out,
the omitted evidence is arguably relevant, but the fact that that an informant had detailed and
specific knowledge about Alimi’s illegal operation strengthens the probable cause for a search
warrant. Moreover, concealing the information was not necessary to a finding of probable cause,
which is what Butler would have needed to prove to succeed on a motion to suppress.153 Thus,
Butler’s failure to file such a motion does not rise to the level of ineffective assistance of counsel.
Alimi’s 	argument 	that 	Butler 	was 	ineffective 	for 	not 	complaining 	regarding 	law
enforcement agents opening locked containers was outside of the purview of the warrant also fails.
To provide effective assistance of counsel, Butler was not required to raise a non-meritorious
challenge; the parameters of the search warrant clearly allowed law enforcement to open containers
on the premises.154 Also, to the extent Alimi argues the original search warrant was defective
152 United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), op. amended 769 F.2d 1410 (9th
Cir. 1985); Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (On a motion to suppress, a
defendant must make an offer of proof showing both that the statement or omission in the affidavit
supporting the search warrant application was deliberately false or demonstrated reckless disregard
for the truth, and that it was essential to the finding of probable cause.).
153 See Premo, 562 U.S. at 124; United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988).
154 See United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir. 1984) (“It is axiomatic that if a
warrant sufficiently describes the premises to be searched, this will justify a search of the personal
effects therein belonging to the person occupying the premises if those effects might contain the
items described in the warrant.”) (citations omitted). Similarly, Alimi’s overbreadth or lack of
particularity arguments fail, and it would have been reasonable for counsel to not pursue such
challenges. See United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985) (warrant
authorizing search of entire ranch but not detailing description of individual buildings to be
searched was not overly broad); see also United States v. Ayers, 924 F.2d 1468, 1480 (9th Cir.
1991).
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because it lacked a magistrate’s signature,155 the warrant was signed and the signature redacted
such that this challenge fails.
Accordingly, for the foregoing reasons, Butler’s failure to file a motion to suppress
evidence seized from the search of Alpina Auto or to otherwise challenge the search warrant does
not constitute ineffective assistance of counsel.
C. Whether Butler Was So Ineffective During the Plea Stage That Alimi Entered a Plea
That Was Neither Knowing nor Voluntarily Made
A guilty plea is voluntary only “if it is entered by one fully aware of the direct consequences
of the plea.”156 Alimi argues first that his plea was involuntary because the change of plea colloquy
needed to include an express advisement about the Sentencing Guidelines range he would face.157
Federal Rule of Criminal Procedure (“Rule”) 11(b)(1) contains a list of 15 advisements that a
defendant must receive before pleading guilty.158 “Rule 11 does not require that the court inform
the defendant of the probability of his receiving one sentence or another. Indeed, it is improper to
do so.”159 Further, a court is not required to give an advisement “of the applicable offense level
and criminal history category under the Sentencing Guidelines prior to accepting [a defendant’s]
guilty plea.”160
155 See Dkt. 118 at 27.
156 Brady, 397 U.S. at 755.
157 Dkt. 118 at 13.
158 Fed. R. Crim. P. 11(b)(1).
159 Lewis v. United States, 601 F.2d 1100, 1101 (9th Cir. 1979).
160 United States v. Turner, 881 F.2d 684, 687 (9th Cir. 1989), overruled on other grounds by
United States v. Rodriguez-Razo, 962 F.2d 1418 (9th Cir. 1992).
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Here, the Court reviewed the factual basis for the Plea Agreement in open court.161 Alimi
affirmed his understanding, even offering corrections.162 A review of the plea hearing transcript
reveals the Court carefully adhered to the requirements of Rule 11, asking and receiving Alimi’s
unequivocal assertion that he wished to plead guilty, after reviewing the written Plea Agreement
and reviewing orally the contents in court.163 Accordingly, this argument fails to convince the
Court Alimi’s plea was not entered knowingly and voluntarily.
Alimi also asserts that his plea was not knowingly and intelligently made because he was
“induced” to plead guilty based on the specific drug quantity in the Plea Agreement’s factual basis:
4,363 pills of oxycodone.164 He argues that because he was unaware and uninformed that the drug
proceeds could be converted into additional drug quantities for sentencing purposes, his plea was
not knowing and voluntary.165 However, as previously stated, Alimi was aware of the sentencing
range recommended in the PSR, he was aware of and attested to his understanding of the facts in
the factual statement of the Plea Agreement, and he was informed the Court was not bound by any
parties’ sentencing recommendation. Additionally, at the change of plea hearing, the Court
assessed his ability and understanding, proceeded through the Rule 11 colloquy, and informed
Alimi of the maximum sentence he may face and that the Court was not bound by the
161 See Dkt. 106 at 14–27.
162 See id.
163 See id.; Dkt. 26 at 17.
164 Dkt. 118 at 12.
165 Id. at 12–13; Dkt. 156 at 11.
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recommendations of parties. Accordingly, based on a review at this stage, it appears that Alimi’s
plea was entered knowingly and voluntarily.166
Finally, Alimi appears to argue that the Court failed to properly inquire into his English
language skills and that he was improperly denied the assistance of an interpreter or document
translation.167 In Alimi’s Notice of Intent to Continue and to Not Withdraw Plea, Alimi informed
the Court that because “English is not his first language, he did not understand what it was that he
in fact had ple[aded] guilty to[.]”168 However, a review of the record sufficiently demonstrates that
Alimi is a fluent English speaker. For example, during the change of plea colloquy, done in
adherence 	with 	Rule 	11, 	the 	Court 	repeatedly 	inquired 	whether 	Alimi 	understands 	and
comprehends English and whether he understood the PSR.169 Alimi’s responses on the record and
166 See Brady, 397 U.S. at 756–57 (“Often the decision to plead guilty is heavily influenced by the
defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of
securing leniency should a guilty plea be offered and accepted. Considerations like these
frequently present imponderable questions for which there are no certain answers; judgments may
be made that in the light of later events seem improvident, although they were perfectly sensible
at the time. The rule that a plea must be intelligently made to be valid does not require that a plea
be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering
into his decision.”).
167 Dkt. 118 at 3‒4. Notably absent from Alimi’s attached Declaration is any mention of an inability
to comprehend the terms of the Plea Agreement or any other communications—save a statement
that his agreement contained the overly broad an unclear phrase: “‘purchased in part with the
proceeds.” Dkt. 118-4 at 2.
168 Dkt. 56 at 1.
169 Dkts. 106 at 6; 156-1 (Reply Attachment) at 7; see 118; see also United States v. Bigman, 906
F.2d 392, 394 n.1 (9th Cir. 1990); see United States v. Nostratis, 321 F.3d 1206, 1208–09 (9th Cir.
2003); see Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir. 1994) (affirming a district
court’s decision that no interpreter was necessary because, during the Rule 11 plea colloquy, “[t]he
defendant’s answers were consistently responsive, if brief and somewhat inarticulate, and he only
occasionally consulted with his attorney”).
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pro se filings, including the present Motion, evince his English language skills.170 Further, the
Court credits Alimi’s declarations made in open court while under oath during the Rule
11 colloquy 	regarding 	his 	language 	skills 	over 	his 	subsequent 	testimony 	years 	later.171
Accordingly, the Court is unconvinced by Alimi’s argument that Butler’s representation was so
deficient that Alimi entered a plea that was not knowing and voluntary.
D. Whether Chaobal Was Ineffective for Failing to File a Motion to Withdraw Alimi’s
Plea
Alimi argues that his second attorney, Chaobal, was ineffective for not filing a motion to
withdraw from the Plea Agreement.172 Specifically, Alimi argues that after Alimi asked Chaobal
to withdraw his plea, Chaobal failed to adhere to Court deadlines and, to “cover his own faults,”
Chaobal told Alimi to “continue to sentencing” and that the Court would “not follow the PSR’s
recommendation.”173 After firing Butler and retaining Chaobal as counsel, Chaobal informed the
Court that Alimi would pursue a motion to withdraw from the Plea Agreement.174 However, after
further investigation, Chaobal advised the Court that Alimi had decided not to withdraw his plea
and to proceed to sentencing.175
170 Dkts. 106 at 6; 156-1 at 7; see Dkt. 118; see also Nostratis, 321 F.3d at 1208–09 (9th Cir. 2003);
Gonzalez, 33 F.3d at 1051.
171 See Nostratis, 321 F.3d at 1209–10; United States v. Castello, 724 F.2d 813, 815 (9th Cir.
1984) (“The court was entitled to credit Castello's testimony at the Rule 11 hearing over her
subsequent affidavit.”); see also Shah, 878 F.2d at 1162 (“‘[S]olemn declarations in open court
carry a strong presumption of verity.’”) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
172 Dkts. 118 at 13‒14; 156 at 28‒30.
173 Dkt. 118 at 14.
174 Dkt. 51 (Notice of Intent to Withdraw Guilty Plea).
175 Dkt. 56.
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In his Declaration, Alimi states that after informing Chaobal he wished to withdraw his
guilty plea, Chaobal did not file the Motion to Withdraw as requested.176 Instead, Alimi declares,
Chaobal filed a “Notice of Intent to Continue and Not Withdraw Plea” against Alimi’s wishes and
without Alimi’s knowledge.177 Alimi declares Chaobal then told him “‘we are just going to
continue to sentencing, don’t worry, the judge will not follow the PSR’s recommendation.’”178
In the Notice, Chaobal described that Alimi took issue with, among other things that he
had “not understood the sentencing ranges and felt that he had not had adequate consultation with
his attorney” and because “English is not his first language, he did not understand what it was that
he in fact ple[aded] guilty to[.]”179 These purported issues notwithstanding, Chaobal represented
that he engaged in discussions with the Government about potential new charges, new discovery,
and other issues that could arise should Alimi attempt to withdraw his plea.180 Chaobal informed
Alimi of the consequences of withdrawing, and Alimi was able to discuss and deliberate with
Chaobal as to the merits of withdrawing before ultimately concluding he should proceed with the
plea.181
To the extent Alimi argues that Chaobal was ineffective for failing to proceed with
attempting to withdraw Alimi’s plea, the argument fails. Chaobal explained to the Court why he
chose not to pursue the motion to withdraw, specifically pointing to discussions with the
176 Dkt. 118-4 at 3.
177 Id.
178 Id.
179 Id. at 1.
180 Dkt. 56 at 1‒2.
181 Id. at 2.
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Government about “potential new charges,” the likelihood of success on such a motion, “the merits
of challenging underlying aspects of the case (i.e., searches, warrants, etc.)[.]”182 Further, based
on the evidence that Alimi could have faced liability for other crimes had he withdrawn his plea,
and the Government’s agreement not to pursue these charges if Alimi entered into the Plea
Agreement may have vanished if Alimi’s plea was withdrawn.
Given evidence of the strategic decision Chaobal made to not file a motion to withdraw
Alimi’s plea and proceed to sentencing, the Court is not inclined to second guess, with the
advantage of hindsight an attorney’s decision made in consultation with his client.183 	Even if
Alimi explained to Chaobal that Butler provided inaccurate or incomplete advice regarding the
Sentencing Guidelines ranges and effects, such a claim likely would not have formed the basis for
withdrawal given that “it is well established that an erroneous prediction by a defense attorney
concerning sentencing does not entitle a defendant to challenge his guilty plea.”184 Further,
counsel’s “[f]ailure to raise a meritless argument does not constitute ineffective assistance.”185
Additionally, Alimi’s argument that Chaobal did not notify Alimi he was not withdrawing Alimi’s
guilty plea186 is unconvincing given that Alimi then hired new counsel and proceeded to
sentencing.
182 Id.
183 See Strickland, 466 U.S. at 689.
184 United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir 1990) (citation omitted).
185 Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir .1985) (citation omitted).
186 See Dkt. 118-4 at 3.
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Accordingly, Alimi cannot show that Chaobal was ineffective for failing to withdraw
Alimi’s 	plea.187 	Because 	it 	appears 	Chaobal’s 	representation 	fell 	within 	the 	range 	of
reasonableness, the Court need not analyze whether Alimi was prejudiced by Chaobal’s
representation.
E. Whether Gardner Was Ineffective for Failing to Object to and Argue Against
Factually Incorrect Sentencing Enhancements
Alimi also argues that Gardner was ineffective for failing to object to or argue against
factually incorrect enhancements under U.S.S.G. §§ 2 D1.1(b)(1) and 2 D1.1(b)(12).188 In Reply,
Alimi also argues Gardner should have moved to withdraw Alimi’s guilty plea.189 In his
Declaration, Alimi states that in advance of sentencing, Gardner told Alimi he would “‘not get
more than 75 months, relax.’”190
1. 	U.S.S.G. § 2 D1.1(b)(1) Firearms Enhancement
The PSR assessed a two point increase in the offense level pursuant to U.S.S.G.
§§ 2D1.1(b)(1) because multiple firearms, some recently reported stolen, were recovered from
Alimi’s residence and from Alpinia Auto.191 Gardner did not object to this enhancement in the
PSR.192 Alimi also argues that “the firearms were not found in [Alimi’s] property or person” and
187 See Strickland, 466 U.S. at 688.
188 Dkts. 118 at 14–17.
189 Dkt. 156 at 28–30.
190 Dkt. 118-4 at 3.
191 Dkt. 76 at 1–2, ¶ 33; see Garcia, 909 F.2d at 1349 (U.S.S.G. § 2D1.1(b)(1) “calls for a two
point increase in a defendant’s base offense level ‘of a firearm or other dangerous weapon was
possessed during commission of the offense.’”).
192 See Dkt. 76 at 26 (noting objections to the PSR).
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that the only testimony from a witness about the firearms “never connected [Alimi] to the firearms
in any way.”193 Commentary to the U.S.S.G. provides that enhancement for weapon possession
should be applied “if the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.”194
At the sentencing hearing, Trooper Miner, witness for the Government, testified that while
executing a search warrant on Alpina Auto—which he referred to as Alimi’s business—he and
other law enforcement officers located six firearms, including one directly under “the cash register
at the front desk[.]”195 The Court heard argument on the proposed enhancement and during the
sentencing hearing, Gardner stated that “[t]here is no evidence that there was [sic] ever any guns
associated with any of the drug dealing, the pills.”196 When asked by the Court to confirm that the
guns were stolen, Gardner responded that yes, the guns recovered from the premises were stolen,
but Gardner pointed out than an individual could purchase a gun directly from a private seller
without knowing the gun was stolen.197 Gardner went on to argue that the Government’s suggested
fourteen-year sentence was too harsh “for a first-time drug offender, with no mandatory minimum
sentence, which is pretty close to getting up toward the maximum potential sentence” and
“seem[ed] excessive.”198 The record before the Court shows that Gardner did object to and argue
193 Dkt. 118 at 14–15.
194 U.S.S.G. § 2D1.1, application (n.11); Garcia, 909 F.2d at 1349.
195 Dkt. 107 at 17.
196 Id. at 44; Dkt. 118 at 15.
197 Dkt. 107 at 44.
198 Id. at 44–45.
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against 	the 	firearms 	enhancement.199 	Accordingly, 	Alimi 	has 	failed 	to 	show 	Gardner’s
performance was ineffective in this respect.
2. 	U.S.S.G. § 2 D1.1(b)(12) Premises Enhancement
Next, Alimi argues Gardner was ineffective for failing to argue against the premises
enhancement, and that the Court incorrectly applied this enhancement, which increased the
base line offense calculation by two points.200
“Among the factors the Court should consider is whether the defendant maintained
a premises that are, A, whether the defendant held a possessory interest or owned
or rented the premises, and, B, the extent to which the defendant controlled access
to or activities on the premise. . . . Manufacturing or distributing a controlled
substance need not be the sole purposes for which the premises is maintained, but
must be one of the defendant’s primary or principal purposes for the premises rather
than one of the defendant’s incidental or collateral sues of the premises. . . . In
making this determination, the court should consider how frequently the premises
was used by the defendant for manufacturing or distributing controlled substances
and how frequently the premises was used or maintained by the defendant for
lawful purposes.201
Based on the record before the Court, there was ample evidence Alimi owned or controlled
the premises at Alpina Auto202 and there is no dispute over the drug dealing activities taking place
out of Alpina Auto. Despite Alimi’s present contentions that he did not own Alpina Auto,203 the
Government located documentation to the contrary.204 Further, ownership is not a requirement in
199 Alimi also does not make clear whether he conveyed to Gardner his present position that he
“knew nothing of any of the firearms found in the shop[.]” See Dkt. 118-4 at 2.
200 See Dkt. 118 at 16–20.
201 Dkt. 107 at 35–36 (quoting U.S.S.G. § 2 D1.1(b)(12)).
202 See, e.g., id. at 28–29.
203 Dkt. 118-4 at 2.
204 See Dkt. 107 at 22, 28–29.
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the language of the applicable enhancement.205 The premises enhancement was properly raised,
and the Court concluded that the two-level premises enhancement should apply.206
As to Gardner’s performance, he did make some arguments on the record about how car
traffic was not necessarily indicative of drug dealing.207 Alimi fails to identify anything Gardner
did wrong or suggest how Gardner should have acted differently. Alimi cannot show that
Gardner’s performance fell below an objective standard of reasonableness. As a result, the Court
need not analyze whether Gardner’s performance prejudiced Alimi.
Finally, Alimi’s argument in his Reply that Gardner should have moved to withdraw
Alimi’s guilty plea is without merit for the reasons already discussed herein. Further, Alimi does
not even argue he asked Gardner to withdraw his guilty plea.208
F. 	Alimi Has Not Shown an Evidentiary Hearing Is Necessary
A district court can dismiss a § 2255 motion without an evidentiary hearing if its factual
claims can be refuted from “documentary testimony and evidence in the record.”209 Even if the
resolution hinges on a matter of credibility, no hearing is necessary if “the district court
‘conclude[s] that [a full evidentiary] hearing would not offer any reasonable chance of altering its
205 See U.S.S.G. § 2D1.1(b)(12); see also Dkt. 107 at 35–36 (noting factors to be considered
include whether a defendant had possessory interest or owned or rented the property, and the extent
to which a defendant controls access to or activities on the premises).
206 Dkt. 107 at 37.
207 Id. at 36.
208 See Dkt. 156 at 28–30.
209 Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (per curium); Miller v. United States,
339 F.2d 704, 705 (9th Cir. 1964).
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view of the facts.’”210 A hearing is likewise unnecessary to resolve claims that “are so palpably
incredible or so patently frivolous or false as to warrant summary dismissal.”211
Here, the Court concludes an evidentiary hearing us unnecessary because it would provide
no reasonable chance of altering the Court’s view of the facts before it.
V. 	CERTIFICATE OF APPEALABILITY
A certificate of appealability (“COA”) is required to appeal a petition brought under 28
U.S.C. § 2255.212 Under the federal rules governing § 2255 procedures, “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”213
Where a petitioner makes “a substantial showing of the denial of a constitutional right,” a COA
should be issued.214 A COA “shall indicate which specific issue or issues satisfy the [substantial]
showing” requirement.215 This standard requires that the petitioner “‘demonstrate that the issues
are debatable among jurists of reason; that a court could resolve the issues in a different manner;
or that the questions are adequate to deserve encouragement to proceed further.’”216 Here, the
Court concludes that Alimi has failed to demonstrate three of his former counsel rendered
210 Williams v. Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (quoting Chang v. United States, 250
F.3d 79, 86 (2d Cir. 2001)).
211 Baumann v. United States, 692 F.2d 565, 570 (9th Cir. 1982).
212 28 U.S.C. § 2253(c)(1)(B); United States v. Asrar, 116 F.3d 1268, 1269 (9th Cir. 1997).
213 Rule 11(a), Rules Governing § 2255 Proceedings.
214 28 U.S.C. § 2253(c)(2).
215 28 U.S.C. § 2253(c)(3); Beaty v. Stewart, 303 F.3d 975, 983 (9th Cir. 2002) (“[A] COA is
granted on a claim-by-claim basis.”).
216 United States v. Greene, No. 3:09-CR-00053-1-TMB, 2015 WL 13670726, at *1 (D. Alaska
Apr. 14, 2015) (quoting Muth v. Fondren, 676 F.3d 815, 822–23 (9th Cir. 2012)).
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ineffective assistance. Nevertheless, the Court concludes Alimi has made a substantial showing of
a denial such that the Court will issue a certificate of appealability in this action. Specifically,
Alimi has made a substantial showing, such that reasonable jurists could disagree, as to Butler’s
representation and advisement on Sentencing Guidelines calculations. However, Alimi has failed
to make a substantial showing as to any of his other arguments.
VI. 	CONCLUSION
For the foregoing reasons, the Court finds that Alimi’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct is without merit. Accordingly, Alimi’s Motion at Docket 118 is
DENIED and the Court will issue a Certificate of Appealability in this case only as to the claim
against Butler regarding representation and advisement on Sentencing Guidelines calculations.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 17th day of March, 2021.
/s/
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
Timothy M. Burgess
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