Ninth Circuit Reverses 2255 Denial for An Evidentiary Hearing: Kallas

Kallas and his procedural history

Kallas was charged with and was represented by counsel. The day before trial his lawyer visited him in detention and told him that the government made a last-minute plea offer of 13-15 years. Kallas rejected this deal believing that it was near the maximum sentence that he would face if he went to trial. He swore that if he knew that he faced over 29 years in prison that he would have accepted the plea offer. The government denied ever making a formal plea deal in their 2255 response.

The 2255 Allegations and litigation

There were interrogatories (!!) on the case. Former trial counsel responded to the interrogatories stating that he discussed the statutory max with Kallas before the arraignment and reviewed the superseding indictment and reviewed the sentencing guidelines with Kallas. Steward stated that he did not recall explaining to Kallas about a maximum of 15 years in prison or whether the government offered a deal of 13-15 years. Former trial counsel also indicated that Kallas told him not to bring any more plea offers because Kallas was “in this case to win.”

The Ninth Circuit's Reasoning

The Ninth Circuit reasoned that Steward’s interrogatory responses show that there was discussion of a plea offer and that Kallas learned of the plea offer near the max on the eve of trial. Because Kallas’ affidavit does not contradict Steward’s interrogatory responses the 9th Circuit stated that Kallas’ claims were not “palpably incredible” or “patently frivolous” and that an evidentiary hearing was appropriate here. The government also stated that there was no prejudice because Kallas told his former trial counsel that he was “in the case to win.” Kallas’ affidavit was to the contrary. The court reasoned that "If, as Kallas alleges, he made that statement on the eve of trial and the plea offer was what he understood at the time to be the maximum sentence he faced at trial, we are not persuaded that those statements conclusively establish that Kallas would have gone to trial if he had properly understood the risk of substantially more prison time.”

Further, Kallas alleged that his trial counsel was ineffective for failing to object to a courtroom closure during voir dire. Kallas alleged that the court called a recess and off the rear, ordered spectators to step into the hallway to make room to seat prospective jurors. Kallas’s submitted affidavits where they swore that they were prevented from entering the courtroom because it was closed for jury selection.

The government stated that the record contradicts the claim that the court closed the courtroom because “the district court did not order spectators out of the courtroom,” and because a news reporter was in the room. But the government does not address the allegation that the court ordered spectators off the record. And the court noted that the government fails to point to anything in the record that shows that the reporter was in the courtroom during the voir dire. Because of all of this, these claims could entitle Kallas to relief. As such the claims were not patently frivolous and the Ninth Circuit reversed the district court’s order as to this claim and remanded the case back to the district court for an evidentiary hearing.

Kallas, 9th Circuit No. 18-55939

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