United States of America v. Tony Junior Jackson

San Francisco - Criminal defense lawyer represented defendant with

one count of conspiracy to engage in sex trafficking by force, fraud, and coercion charge.

Jackson pleaded guilty to one count of conspiracy to

engage in sex trafficking by force, fraud, and coercion in

November 2015, pursuant to a written plea agreement with

the government.

The plea agreement was fully integrated. It specified that

the written document represented "the entire Plea

Agreement between the parties,” confirmed that Jackson

entered the agreement "freely and voluntarily,” and

disclaimed the existence of any other agreements: "[N]o

threats or promises, other than the promises contained in this

Plea Agreement, were made to induce Defendant to enter his

plea of guilty.” Jackson agreed to waive his right to appeal

or collaterally attack his conviction and sentence, except to

challenge the effectiveness of his counsel. The government

agreed to recommend a 120- to 180-month prison sentence,

dismiss Jackson's remaining charges, and not to prosecute

Jackson for sex trafficking in other federal districts based on

evidence in its possession at the time.

During the Federal Rule of Criminal Procedure 11 plea

colloquy, the court confirmed Jackson's understanding of

the written plea agreement1 and asked whether the

government made any other promises:

The Court: And do these agreements

represent in their entirety any understanding

1 Jackson entered guilty pleas in two cases under two plea

agreements, but only one is at issue here.

6 UNITED STATES V. JACKSON

or agreement that you have with the

government?

The Defendant: Yes.

The Court: There are no side agreements or

anything that is not written down here?

The Defendant: No, there isn't, Your Honor.

The Court: And you feel you understand the

terms of these agreements?

The Defendant: I do.

The Court: And has anyone made any other

or different promises or assurances to you of

any kind to get you to plead guilty, other than

what's in these plea agreements?

The Defendant: No, sir.

...

The Court: You also indicated here that

entering into this plea agreement or these

agreements are voluntary, no one has put any

pressure on you to do it except the situation

you find yourself in; is that correct?

The Defendant: Yes, sir.

The Court: And you've got the whole

agreement here in these two documents?

UNITED STATES V. JACKSON 7

The Defendant: Yes, I do.

Jackson confirmed that he understood the appeal waiver.

The court accepted Jackson's guilty plea and later sentenced

him to 140 months in prison with five years of supervised

release.

Now, in his § 2255 motion, Jackson claims that, in

entering a guilty plea, he relied on an off-the-record promise

made by the government. Immediately before the plea

hearing, Jackson's attorney asked the government whether

his co-defendant Young would receive a better sentence

offer. Jackson and Young were both named in the same

indictment and charged with one count of conspiracy to

commit sex trafficking, among other offenses.

The government does not dispute that a conversation

took place but disputes the exact substance of its response.

According to Jackson, when asked whether Young would

receive a lower sentence offer, the prosecutor promised "that

would not happen” and said: "I promise your co-defendant

is not going to get a better agreement, he's going to get the

same agreement and the same amount of time if not more.”

Jackson's attorney at the time, Charles Johnston, also

maintains that the government "verbally promised Mr.

Jackson that, that was not going to happen and that Mr.

Young would not get a better offer but the same offer of time

if not more.”2

The government concedes it represented that

it did not intend to offer Young a lower sentence, but that

2 Young's lawyer, Terrence Kellogg, was not present during this

conversation, but in his declaration states that "to the best of my

recollection, [the prosecutor] Mr. Miyake told me that the government

had advised Mr. Jackson that they, the government, would not extend a

more favorable offer to Mr. Young than the offer received by Mr.

Jackson.”

8 UNITED STATES V. JACKSON

this verbal representation was not a part of the plea

agreement. The prosecutor, Bruce Miyake, states in his

declaration: "The government indicated that we had

extended a similar plea offer to Young and that it did not

involve an offer of less than 10 years of imprisonment.” The

government maintains that its statement was not a promise,

and that Jackson's plea agreement "was not interdependent

upon the government offering Young the same terms as

those accepted by Jackson.”

B

The government initially offered co-defendant Young a

recommendation of a Guidelines sentence of 120–156

months in prison in exchange for his guilty plea to

conspiracy to engage in sex trafficking. Young accepted the

plea agreement and entered a guilty plea in June 2016, a little

over six months after Jackson entered his guilty plea. In

January 2017, Young moved to withdraw his guilty plea on

the ground that the government had failed to disclose

relevant evidence in his case. Over the government's

objection, the court granted Young's motion.

After further negotiations, Young pleaded guilty in

August 2017 to a less serious charge of interstate

transportation for the purpose of prostitution. Unlike the

conspiracy to commit sex trafficking charge, which could

result in a life sentence, this offense carried a maximum

statutory sentence of 10 years' imprisonment. In exchange

for his plea, the government agreed to recommend a binding

prison sentence of 90 months. The court accepted Young's

guilty plea and imposed a 90-month sentence with three

years of supervised release.

UNITED STATES V. JACKSON 9

C

In January 2017, Jackson filed his first § 2255 motion

claiming ineffective assistance of counsel in the

determination of his base offense level. The motion was

denied in April 2017.

In August 2018, after Young pleaded guilty a second

time and received his 90-month sentence, Jackson filed the

instant § 2255 motion, claiming that the government

breached his plea agreement by offering Young a shorter

sentence. Jackson contends that the government's oral

promise was binding and induced his guilty plea. As for why

he assured the court during the plea colloquy that there were

no promises outside the written plea agreement, Jackson

explained that he was simply following his attorney's

instructions. Jackson later sought, in a March 6, 2020 letter

to the court, to add an ineffective assistance of counsel claim

based on his attorney's failure to commit the government's

oral promise to writing and his erroneous advice at the plea

hearing.

On March 30, 2020, the district court denied Jackson's

§ 2255 motion, declined to consider his ineffective

assistance of counsel claim, and granted a certificate of

appealability ("COA”) ("March 30, 2020 Order”). The

district court found that any alleged "promise” was not part

of the plea agreement and thus there was no breach. On June

16, 2020, the court denied Jackson's motion for

reconsideration.

Jackson appeals the district court's March 30, 2020

Order and the denial of his motion for reconsideration.

10 UNITED STATES V. JACKSON

II

A

The government initially argued in its briefing that we

lack jurisdiction to hear Jackson's appeal because his notice

to appeal was untimely and invalid. Although the

government withdrew this challenge shortly before oral

argument, we briefly explain why we have jurisdiction.

We review jurisdictional questions de novo, United

States v. Struckman, 611 F.3d 560, 571 (9th Cir. 2010), and

we review a district court's order denying or granting an

extension to file a notice of appeal for abuse of discretion,

Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004).

Federal Rule of Appellate Procedure 3(c) requires a

notice of appeal to specify the party taking the appeal, the

order being appealed, and the court to which the appeal is

taken. Fed. R. App. P. 3(c). The requirements of Rule 3(c)

are interpreted liberally, and a technical variance from the

Rule does not defeat jurisdiction if the litigant's filing is the

"functional equivalent” of what is required under the

procedural Rule. Torres v. Oakland Scavenger Co., 487

U.S. 312, 315–17 (1988); see also United States v. Withers,

638 F.3d 1055, 1061 (9th Cir. 2011) (construing a pro se

appellant's filing liberally "as the appropriate motion or

notice necessary for [him] to pursue [his] legal claims on

appeal”). The notice of appeal must be timely. Bowles v.

Russell, 551 U.S. 205, 213–14 (2007).

Jackson's notice of appeal was due on May 29, 2020.

See Fed. R. App. P. 4(a)(1)(B). Before that deadline,

Jackson filed two motions indicating his intent to appeal the

March 30, 2020 Order. First, he mailed a motion to file out

of time and a motion for reconsideration asking the district

UNITED STATES V. JACKSON 11

court for a COA on April 28, 2020, which was filed on May

4, 2020.3

The next day, realizing the district court had

already granted a COA in its March 30, 2020 Order, Jackson

mailed a "Motion to Construe Request for (COA)” asking

that his previous motion be construed as a request to appeal.

Jackson's motion to construe was filed on May 11, 2020.

On June 16, 2020, the district court granted Jackson's

motion to file out of time, denied his motion for

reconsideration on the merits, and denied Jackson's motion

to construe the COA request as a request to appeal. The

court instructed Jackson to file a notice of appeal by the

standard deadline. By this time, however, the notice of

appeal deadline had already passed. Jackson filed another

notice of appeal on June 26, 2020.

Jackson's two requests for a COA made clear his

intention to appeal the March 30, 2020 Order—Jackson

referred to the district court's March 30, 2020 Order in his

pro se motion to construe, and asked that his motion for

reconsideration of the March 30, 2020 Order be construed as

a request to appeal. See Lockman Found. v. Evangelical All.

Mission, 930 F.2d 764, 772 (9th Cir. 1991) (finding that even

errors in the notice of appeal "should not bar appeal as long

as the intent to appeal a specific judgment can be fairly

inferred and the appellee is not prejudiced or misled by the

mistake” (citing United States v. One 1977 Mercedes Benz,

708 F.2d 444, 451 (9th Cir. 1983))). Both were received by

the district court before the May 29, 2020 deadline. We

3 Because his prison was on lockdown, Jackson did not learn of the

court's March 30, 2020 Order until April 27, 2020, when the Public

Defender's office notified him that his § 2255 motion had been denied.

12 UNITED STATES V. JACKSON

therefore find that Jackson's notice of appeal was valid and

timely.4

B

The government contends that the district court lacked

jurisdiction to hear Jackson's § 2255 motion because it is an

improper "second or successive” motion. We review this

question de novo. See United States v. Buenrostro, 895 F.3d

1160, 1164 (9th Cir. 2018).

Under 28 U.S.C. § 2244(b), if a habeas petition is second

or successive, "the district court lacks jurisdiction and must

dismiss the petition unless and until the court of appeals

grants an application to file it.” Brown v. Muniz, 889 F.3d

661, 667 (9th Cir. 2018) (citing 28 U.S.C. § 2244(b)(3)(A)).

But not all second-in-time § 2255 motions are "second or

successive.” As we clarified in Brown v. Muniz, a petition

is not second or successive "if the factual predicate for the

claim accrued only after the time of the initial petition.” Id.

(citing United States v. Buenrostro, 638 F.3d 720, 725–26

(9th Cir. 2011) (per curiam)).

Here, Jackson's § 2255 motion is not "second or

successive” because the factual circumstances underlying

Jackson's motion did not occur until after his first § 2255

petition had been resolved. See id. Jackson filed his first

§ 2255 motion in January 2017, alleging ineffective

assistance of counsel in connection with the determination

of his base offense level in his sentence. The court denied

the motion in April 2017. In the current motion, which he

4 Because we find that Jackson's notice of appeal was timely, we do

not address whether Jackson's motion to reconsider tolled the deadline

to file the appeal.

UNITED STATES V. JACKSON 13

filed in August 2018, Jackson claims the government

breached his plea agreement when it recommended that

Young serve a 90-month sentence in August 2017, four

months after Jackson's first § 2255 motion was already

resolved.

We are unpersuaded by the government's argument to

the contrary. According to the government, any alleged

breach of the plea agreement occurred in June 2016, when

the government offered Young its promise to recommend a

sentence of between 120–156 months in prison, which was

lower than Jackson's recommended sentence range of 120–

180 months. But the government ignores Jackson's claim

that the government breached his agreement by offering

Young a lower sentence recommendation of 90 months, not

by offering Young a sentence with the same 120-month

minimum. On its face, Jackson's claim is clearly based on

events that took place after his first petition was resolved.

The district court correctly determined that it had jurisdiction

to hear Jackson's motion.

C

We next consider the merits of Jackson's § 2255 motion.

We review the district court's denial of a § 2255 motion de

novo. United States v. Swisher, 811 F.3d 299, 306 (9th Cir.

2016) (en banc).

A federal prisoner may collaterally attack the legality of

his conviction or sentence through a motion to vacate, set

aside, or correct his sentence under § 2255. 28 U.S.C.

§ 2255(a). Ineffective assistance of counsel claims may be

brought in collateral proceedings under § 2255, Massaro v.

United States, 538 U.S. 500, 504 (2003), and a defendant

who pleads guilty may challenge the knowing and voluntary

nature of his plea, United States v. Kaczynski, 239 F.3d 1108,

14 UNITED STATES V. JACKSON

1113–14 (9th Cir. 2001). Guilty pleas must be "voluntary”

and "knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely

consequences.” Brady v. United States, 397 U.S. 742, 748

(1970). "A habeas petitioner bears the burden of

establishing that his guilty plea was not voluntary and

knowing.” Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir.

2006).

1

Jackson claims that he was induced into pleading guilty

by a verbal promise from the government that it would not

offer Young a shorter sentence recommendation. The

government concedes that a conversation occurred shortly

before Jackson's plea hearing, but disputes that it made a

binding promise about Young's sentence or that it induced

Jackson's plea.

We review de novo whether the government breached a

plea agreement, United States v. Clark, 218 F.3d 1092, 1095

(9th Cir. 2000) (citing United States v. Fisch, 863 F.2d 690,

690 (9th Cir. 1988)), and review the district court's

interpretation and construction of a plea agreement for clear

error, id. (citing United States v. Ajugwo, 82 F.3d 925, 928

(9th Cir. 1996)).

"[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise

must be fulfilled.” Santobello v. New York, 404 U.S. 257,

262 (1971). It is not enough for a defendant to claim that a

promise was made, however; he must also show that his

guilty plea rested in a significant degree on that promise.

See id.

UNITED STATES V. JACKSON 15

Our task is to determine what the defendant reasonably

believed to be the terms of the plea agreement at the time of

his plea. United States v. Franco-Lopez, 312 F.3d 984, 989

(9th Cir. 2002). To do so, we generally limit our review to

the terms of the written plea agreement and the statements

made under oath during the plea colloquy. See Brown v.

Poole, 337 F.3d 1155, 1160 (9th Cir. 2003). "Because a plea

agreement is, at bottom, a contract between the government

and a criminal defendant, for the most part 'we construe [a]

plea agreement using the ordinary rules of contract

interpretation.'” United States v. Transfiguracion, 442 F.3d

1222, 1228 (9th Cir. 2006) (alteration in original) (citing

Poole, 337 F.3d at 1159).

Because the sworn statements during the plea colloquy

"speak[] in terms of what the parties in fact agree to,” United

States v. Benchimol, 471 U.S. 453, 455 (1985), they "carry a

strong presumption of truth,” Muth v. Fondren, 676 F.3d

815, 821 (9th Cir. 2012). See also Blackledge v. Allison, 431

U.S. 63, 73–74 (1977) ("[T]he representations of the

defendant, his lawyer, and the prosecutor at such a [plea]

hearing, as well as any findings made by the judge accepting

the plea, constitute a formidable barrier in any subsequent

collateral proceedings.”).

At the same time, we are mindful of the unique

constitutional concerns involved in plea agreements: "The

analogy to contract law is, . . . in certain circumstances

imperfect, and we do not always follow it.”

Transfiguracion, 442 F.3d at 1228 (citing United States v.

Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) (en banc)); see

also United States v. Garcia, 956 F.2d 41, 43–44 (4th Cir.

1992) (enforcing the government's verbal promise not to

make a defendant cooperate and declining to strictly apply

the parol evidence rule where the government conceded it

16 UNITED STATES V. JACKSON

made the promise and wrote the promise in the cover letter

of the plea agreement, but omitted it from the written

agreement itself). "The interests at stake and the judicial

context in which [plea agreements] are weighed require that

something more than contract law be applied.”

Transfiguracion, 442 F.3d at 1229 (internal citation and

quotations omitted).

The record here, however, is not sufficient to overcome

the presumption that Jackson's written plea agreement and

his sworn statements during the plea colloquy describe the

complete agreement reached between the parties. Jackson's

plea agreement was fully integrated and unambiguous. The

agreement explicitly states that it constitutes "the entire Plea

Agreement between the parties,” and that "no threats or

promises, other than the promises contained in this Plea

Agreement, were made to induce Defendant to enter his plea

of guilty.” It does not contain any promise about Young's

plea deal, nor does it condition Jackson's guilty plea on any

future sentencing offer to Young.

Jackson's statements to the court during the plea

colloquy were also clear and unambiguous. He explicitly

confirmed that the written agreement was complete and that

the government made no other promises. When asked

whether there were "side agreements or anything that is not

written down” in the plea agreement, Jackson responded:

"No, there isn't, Your Honor.” And when asked if "anyone

made any other or different promises or assurances” to him

"of any kind to get [him] to plead guilty, other than what's

in the[] plea agreement[],” Jackson told the court that the

government did not make him any promises. He confirmed

more than once that the written agreement was full and

complete, and agreed that it represented "in [its] entirety any

UNITED STATES V. JACKSON 17

understanding or agreement that [he had] with the

government.”

The timing of the conversation between the parties is

also instructive. Immediately after Jackson's counsel spoke

with the government about Young, Jackson told the court

that the government made him no promises other than what

was written in the plea agreement. Now, however, Jackson

asks us to ignore his sworn statements, disregard his written

plea agreement, and convert the government's informal

verbal statement about what it intended to do with Young's

case into a binding promise. We cannot do so here.

This case is analogous to United States v. Ajugwo, 82

F.3d 925 (9th Cir. 1996). In Ajugwo, the petitioner argued

that during plea negotiations, the government verbally

agreed to waive its right to challenge the applicability of a

sentencing "safety valve” provision. Id. at 927–28. The

alleged verbal promise was explicitly contradicted by the

written terms of the final plea agreement, however, which

reserved the government's right to argue the sentencing

provision did not apply. Id. The government denied

verbally promising otherwise. Id. The plea agreement was

fully integrated, stating there were "no additional promises,

understandings or agreements” between the government and

the petitioner, and that none could be added "unless in

writing and signed by all parties.” Id. at 929. Because the

plea agreement was unambiguous and fully integrated, we

declined to admit the petitioner's extrinsic (or "parol”)

evidence to add the alleged verbal promise, and rejected the

claim that the agreement was breached. Id. at 928–29.

Like in Ajugwo, Jackson's plea agreement is

unambiguous, fully integrated, and expressly disclaims the

existence of other promises. The government denies making

the promise and disputes Jackson's claims. The use of

18 UNITED STATES V. JACKSON

extrinsic evidence to modify Jackson's plea agreement is

similarly inappropriate. See United States v. PachecoOsuna, 23 F.3d 269, 271 (9th Cir. 1994) ("[W]e have

previously eschewed the invitation to consider parol

evidence for the purpose of adding terms to or changing the

terms of an integrated plea agreement.”).5

Jackson primarily relies on Chizen v. Hunter, 809 F.2d

560 (9th Cir. 1986), but that case is distinguishable. In

Chizen, the parties conceded that the petitioner's attorney

incorrectly told him that if he entered the plea bargain, the

judge had committed not to sentence him to more than ninety

days in jail. Id. at 561. The petitioner argued that this

misrepresentation induced him to plead guilty. Id. at 562.

At his sentencing hearing, when the court handed down a

sentence of more than ninety days, the petitioner asked to

withdraw his plea. Id. at 563. But because he already signed

a waiver affirming that his plea was voluntary and that he

understood the sentence would be decided by the judge, and

he confirmed that he understood his plea during the

colloquy, the government argued that he could not withdraw

his guilty plea despite his attorney's false inducement. Id. at

562. We found that the waiver form and colloquy statements

did not cure his attorney's misrepresentations under these

unique circumstances. Id. at 562–63. The petitioner entered

his plea based on the terms his attorney had misrepresented,

and his waiver and colloquy—when examined in light of the

5 Even if we were to consider the extrinsic evidence here, Jackson

has not shown the existence of a binding promise or that his plea rested

in any significant degree on it. See Santobello, 404 U.S. at 262. The

district court therefore did not abuse its discretion in declining to grant

an evidentiary hearing on this issue. See 28 U.S.C. § 2255(b) (an

evidentiary hearing is not required if the "motion and the files and

records of the case conclusively show that the prisoner is entitled to no

relief”).

UNITED STATES V. JACKSON 19

misrepresentation—did not contradict his claim. Id. at 563.

Accordingly, his plea was involuntary and could be

withdrawn. Id.; see also United States v. White, 366 F.3d

291, 295, 297–300 (4th Cir. 2004) (finding "extraordinary

circumstances” to warrant an evidentiary hearing on the

government's breach of an oral promise when it was

undisputed that petitioner's counsel erroneously informed

him that his plea was conditioned on the promise, and the

plea agreement and plea colloquy did not contradict his

claim).

In Jackson's case, of course, the government does not

concede that its statement to Jackson's counsel was a

promise, and the record before us does not demonstrate that

Jackson entered the plea based on a misrepresentation by his

attorney. Jackson raises several arguments about the

effectiveness of his counsel, which will be explored on

remand when the district court considers his ineffective

assistance of counsel claim, as discussed below. For

instance, Jackson claims he was following his attorney's

instructions when he disclaimed the verbal promise at the

colloquy and was assured by his attorney that "he would

handle it.” Jackson also contends that his attorney's failure

to commit the verbal promise into writing constitutes

ineffective assistance of counsel. These issues should be

addressed in the first instance by the district court and thus

are not before us here.

This case also does not rise to the level of Santobello v.

New York, where the government admitted it promised not

to make a sentencing recommendation and its promise

induced the petitioner's plea. 404 U.S. at 262. When the

government broke its promise, it argued that its breach was

unintentional and immaterial. Id. at 259, 262. The Supreme

Court disagreed and held that the government needed to

20 UNITED STATES V. JACKSON

fulfill the promise it made that induced the petitioner to plead

guilty. Id. at 262–63.

On this record, Jackson's claim for breach fails.

2

The government also argues that Jackson's breach of

plea agreement claim is barred by the collateral attack

waiver. Under the terms of the plea agreement, Jackson

waived his right to collaterally attack his sentence other than

to challenge the effectiveness of counsel. We enforce

collateral attack waivers that are knowing and voluntary.

United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.

1993); see Fox v. Johnson, 832 F.3d 978, 989 (9th Cir. 2016)

("We agree that [defendant] had a constitutional right to

enforce the plea agreement, and that a waiver of a

constitutional right must be knowing and voluntary.”

(internal citations omitted)). Jackson does not claim that his

collateral attack waiver was involuntary or otherwise

challenge its validity.

Instead, Jackson argues that the waiver is invalid because

the government breached the plea agreement. See United

States v. Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir.

2016) ("A defendant is released from his or her appeal

waiver if the government breaches the plea agreement.”

(citing United States v. Gonzalez, 16 F.3d 985, 989–90 (9th

Cir. 1993))). Because we find that the government did not

breach Jackson's plea agreement, however, we agree with

the district court that Jackson waived his right to collaterally

attack his sentence on this basis. Therefore, the waiver is

enforceable.

UNITED STATES V. JACKSON 21

D

We remand for the district court to consider the merits of

Jackson's ineffective assistance of counsel claim in the first

instance. Jackson filed a letter on March 6, 2020 asking to

add an ineffective assistance of counsel claim to his § 2255

motion on the grounds that counsel 1) failed to ensure the

government's promise about Young was included in the

written plea agreement, 2) failed to raise the issue at the plea

hearing, and 3) instructed Jackson to tell the court there were

no other promises aside from the written agreement.

Additional claims may relate back to timely filed § 2255

motions. Fed. R. Civ. P. 15(c); Anthony v. Cambra, 236 F.3d

568, 576 (9th Cir. 2000). An amendment "relates back” if it

"asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set

out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

Pro se motions from prisoners are to be liberally construed.

United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2001).

The district court abused its discretion by failing to

consider Jackson’s pro se letter as a request to amend his

§ 2255 motion to add this claim. In its March 30, 2020

Order, the district court stated that Jackson’s motion “does

not assert a claim of ineffective assistance of counsel,” but

did not address Jackson’s March 6, 2020 request to amend

his § 2255 motion. Jackson’s ineffective assistance of

counsel claim clearly “relates back” to the substance of his

§ 2255 motion, and on remand the district court must grant

his request to amend and consider the merits of this claim.

The collateral attack waiver does not apply to claims of

ineffective assistance of counsel, so this claim is not barred.



AFFIRMED IN PART AND REVERSED AND

REMANDED IN PART