DIANE J. SHEPARD, District Judge.
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On October 24, 2006, movant pled guilty to one count of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841 (a)(1). Doc. No. 85. On July 19, 2007, movant was sentenced to a 240-month term of imprisonment and a 60-month term of supervised release. Doc. No. 93. Movant did not appeal in light of the plea agreement.
In the Indictment filed January 15, 2004, movant was charged with two counts: conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841 (a)(1), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. ¶ 841(a). On October 24, 2006, movant pleaded guilty. Doc. No. 85. At the change of plea hearing, the following exchange took place:
Reporter's Transcript ("RT") at 5-6.
During further questioning, movant stated that he understood the potential maximum penalty for the offense, that he would not be released on parole, that he may be ordered to pay restitution, that the court was not bound to the government's sentencing recommendation, and that he waived his right to appeal. RT at 7-8. The court then asked movant whether he understood that he was giving up certain constitutional rights:
On July 19, 2007, movant was sentenced to 240 months imprisonment followed by 60 months of supervised release. Doc. No. 93.
On September 19, 2011, movant filed a document entitled "Non-Consent to Participate in Imprisonment and Supervised Release." Doc. No. 115. The document was docketed as a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255.
Following referral of the matter to the undersigned, the court directed respondent to file an answer. Doc. No. 109.
Failing to receive an answer, the court issued an order to show cause on December 8, 2011. Doc. No. 114.
On February 4, 2012, respondent filed a response to the order to show cause and a motion to dismiss for failure to state a claim. Motion to Dismiss ("MTD") at 3.
In addition to respondent's motion to dismiss, the court has pending before it movant's January 3, 2012 motion for immediate release and motion to rescind wrongful characterization; March 5, 2012 request for immediate ruling; March 26, 2012 motion for default judgment and for immediate release; and May 21, 2012 motion for evidentiary hearing.
Section 2255 provides, in relevant part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, `[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'"
Respondent seeks dismissal of the petition for failure to state a claim. Alternatively, respondent argues the petition is untimely.
In the government's motion to dismiss, respondent seeks dismissal for failure to state a claim. On review of the petition following referral, the court found the petition to be generally non-sensical and rambling, giving rise to an inference of mental illness. The court did, however, liberally construe the petition and found it to state a claim that petitioner's plea agreement was not entered into knowingly and voluntarily.
While the government asserts that any construed claim "is way outside [the] ballpark," MTD at 3 n.3, the court disagrees and is bound to its duty to liberally construe the filing.
In light of respondent's failure to provide a transcript of the change of plea hearing with its motion to dismiss, the court obtained a copy directly from the court reporter and appends it to this order and findings and recommendations. On review of that transcript, the court finds that dismissal is warranted for failure to state a claim.
A plea agreement is a contract and subject to contract law standards.
Here movant expressly waived both his right to appeal and his right to collaterally attack his sentence pursuant to 28 U.S.C. § 2255. Movant's plea agreement stated, in relevant part:
Plea Agreement (Doc. No. 85) at 8.
Movant also specifically acknowledged at the hearing on his change of plea that he understood he was giving up his right to appeal or attack the judgment and sentence:
RT at 9.
The Plea Agreement and the record of the change of plea hearing demonstrate that the terms of the Plea Agreement were explained to movant, and movant understood those terms. The court thus finds that movant knowingly and voluntarily entered into the Plea Agreement. Accordingly, dismissal is warranted on this ground.
A motion for § 2255 relief must be brought within one year after the prisoner's conviction becomes final, subject to limited exceptions.
For all of the foregoing reasons, movant's § 2255 motion should be denied. Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, "[t]he district court must issue or a deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, 28 U.S.C. foll. § 2255. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons set forth in these findings and recommendations, movant has not made a substantial showing of the denial of a constitutional right. Accordingly, no certificate of appealability should issue.
Accordingly, IT IS HEREBY ORDERED that:
IT IS HEREBY RECOMMENDED that:
1. Respondent's February 4, 2012 motion to dismiss be granted;
2. Movant's September 19, 2011 amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 be dismissed;
3. The district court decline to issue a certificate of appealability; and
4. The clerk of the court be directed to close the companion civil case No. 11-cv-2500-MCE-JFM.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order.
THE CLERK: Calling criminal case 04-0019, United States versus Rodney Butler. On for Change of Plea, Your Honor.
MS. GRAD: Good morning, Your Honor. Mary Grad for the United States.
THE COURT: Good morning.
MR. DUDLEY: Good morning, Your Honor. David Dudley on behalf of Mr. Butler, who is now in the courtroom.
THE COURT: Thank you. Is it correct that Mr. Butler wishes to enter a plea of guilty today?
MR. DUDLEY: He does, Your Honor.
THE COURT: Have I received a fully-executed copy of the plea agreement?
MS. GRAD: You have, Your Honor.
THE COURT: I have received that agreement, and it is fully executed. I'll order that it be filed and made a part of the records in the case. Madam Clerk, please administer the oath.
THE CLERK: Mr. Butler, you do solemnly swear that the testimony you will give to this Court regarding your entry of plea shall be the truth, the whole truth, and nothing but the truth, so help you God?
THE DEFENDANT: Yes.
THE CLERK: Thank you.
THE COURT: All right. Mr. Butler, you understand that you have now been sworn to tell the truth?
THE DEFENDANT: Yes.
THE COURT: That means that the answers you're going to give to my questions are being made under the penalty of perjury, do you understand that?
THE DEFENDANT: Yes.
THE COURT: If at any time you do not understand my question or need to speak to your attorney for any reason whatsoever, please let me know, and I will give you time to speak to your attorney, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Please state your full and correct name for the record?
THE DEFENDANT: Rodney Butler.
THE COURT: Date of birth?
THE DEFENDANT: March 30th, 1965.
THE COURT: Your highest level of formal education?
THE DEFENDANT: Twelfth grade.
THE COURT: Your most recent occupation?
THE DEFENDANT: Heating, plumbing.
THE COURT: All right. Have you ever been treated for any type of mental illness?
THE DEFENDANT: No.
THE COURT: Have you ever been treated for an addiction to drugs or alcohol?
THE DEFENDANT: No.
THE COURT: Are you under the influence of any drug, alcohol or medication today?
THE DEFENDANT: No.
THE COURT: Have you consumed any drug, alcohol or medication in the last 24 hours?
THE DEFENDANT: No.
THE COURT: Do either counsel know of any reason why this defendant is not competent to enter a plea today?
MR. DUDLEY: I do not.
MS. GRAD: I do not, Your Honor.
THE COURT: Mr. Butler, are you satisfied with the advice that you have been given by your attorney in this case?
THE DEFENDANT: Yes.
THE COURT: Is it your understanding that your attorney met with the Government's attorney, and that is what led to the preparation of this written plea agreement that you have signed?
THE DEFENDANT: Yes.
THE COURT: Will you be entering your plea of guilty today pursuant to the express terms of that written plea agreement?
THE DEFENDANT: Yes.
THE COURT: Are you entering your plea of guilty voluntarily?
THE DEFENDANT: Yes.
THE COURT: And because you are in fact guilty of the crimes as charged?
THE DEFENDANT: Yes.
THE COURT: May I have the terms of the agreement, Ms. Grad?
MS. GRAD: Yes, Your Honor.
Under the terms of the plea agreement, the defendant will plead guilty to Count One of the Indictment, which charges conspiracy to possess with intent to distribute at least five kilograms of a mixture and substance containing a detectable amount of cocaine.
The parties agree and stipulate that the underlying conspiracy to which the defendant is pleading guilty exceeded more than 50 kilograms of cocaine but was less than 150 kilograms of cocaine, which will result in a base level of 36.
The parties agree and stipulate that the defendant was an organizer and manager of the criminal activity to which he is pleading guilty, and that will result in a two-level increase in the base offense level.
The Government won't oppose a three-level downward adjustment for acceptance of responsibility. There are no other adjustments or departures that are appropriate. And the defendant will waive appeal and collateral attack under the terms of the agreement, Your Honor.
THE COURT: Are those the terms of your plea agreement with the Government as you understand them?
THE DEFENDANT: Yes.
THE COURT: Has anyone threatened you in any way to force you to enter a plea of guilty today?
THE DEFENDANT: No.
THE COURT: Has anyone made any other promises to you to try to induce you to enter a plea of guilty today?
THE DEFENDANT: No.
THE COURT: Are you a citizen of the United States?
THE DEFENDANT: Yes.
THE COURT: Have you ever been convicted of a felony before?
THE DEFENDANT: Yes.
THE COURT: Are you presently on probation or parole for any other offenses?
THE DEFENDANT: No.
THE COURT: The maximum penalty provided by law for a plea of guilty to conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 United States Code, Sections 846 and 841(a)(1) is life imprisonment with a mandatory minimum term of 10 years, and a fine of up to $2 million, a special assessment of $100, and a period of supervised release of up to five years, do you understand that?
THE DEFENDANT: Yes.
THE COURT: In the event you are sent to prison and released on supervised release, and you violate any of the terms of that supervised release, you could be sent back for up to five more years, do you understand that?
THE DEFENDANT: Yes.
THE COURT: If there's been any economic loss suffered by a victim as a result of your criminal conduct, I will order that you pay restitution unless I determine that restitution is not appropriate, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Have you and your attorney discussed the advisory sentencing guidelines, the statutory construction, and the case law, and all other factors that the Court must consider in providing for a fair, just and reasonable sentence for you?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the Court will not be able to determine what your precise sentence will be until after it has taken into consideration the statutory requirements, the advisory guidelines, heard from your attorney, heard from the Government's attorney, and also heard from you, and reviewed all the facts that are relevant to your case? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if the Government has agreed to make any recommendations concerning your sentencing, those recommendations are simply that, recommendations? The Court is not bound to follow them. If for some reason the Court does not follow all the recommendations of the Government, you will still be bound by your plea and not able to withdraw it. Do you understand?
THE DEFENDANT: Yes.
THE COURT: Do you also understand that if you are sent to federal prison, that you will not be released on parole?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the Government may have the right to appeal from the sentence that I impose, but by the terms of your plea agreement you have waived, that means given up your right to appeal from whatever sentence I impose? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied, counsel, that there has been a voluntary, knowing and intelligent waiver of your client's right to appeal from the sentence that is imposed or collaterally attack the plea here today?
MR. DUDLEY: I am, Your Honor.
THE COURT: All right. You have the right to continue to plead not guilty and go to jury trial, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Before I take your plea of guilty today, I need to make sure that you understand that you have certain Constitutional Rights attendant with that jury trial right, and you are willing to give them all up.
My procedure is to list all of those rights for you, and I want you to listen to them all very carefully. At the end, I'm going to ask you whether you understand them all and whether you are willing to give them all up. Do you understand?
THE DEFENDANT: Yes.
THE COURT: You have the right to have a trial by jury. You have the right to be presumed innocent. You have the right to have the Government prove your guilt beyond a reasonable doubt. You have the right to have an attorney for you at all times. And if you cannot afford an attorney, to have one appointed for you at no cost to you. You have the right to present a defense to these charges. You have the right to see and hear all witnesses and evidence that will be presented against you at trial. And you have the right to cross-examine those witnesses as well. You have the right to use the power of this court to bring in witnesses and evidence on your behalf so that you can present a defense. You have the right to remain silent. And you have the right not to have your silence or your decision not to use witnesses or evidence in trial used against you.
Do you understand all of your Constitutional Rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you give up all those Constitutional Rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Counsel, join your client's waivers?
MR. DUDLEY: I do, Your Honor.
THE COURT: Thank you. Ms. Grad, may I have the essential elements of this offense, please.
MS. GRAD: Yes, Your Honor.
For the defendant to be found guilty of the offense to which he is pleading guilty, the Government would have to prove beyond a reasonable doubt that, first, there was an agreement between two or more persons to possess with intent to distribute and distribute at least five kilograms of a mixture and substance containing a detectable amount of cocaine, and, second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.
A conspiracy is a kind of criminal partnership, or, in other words, an agreement between two or more persons to commit one or more crimes.
THE COURT: Do you understand those elements?
THE DEFENDANT: Yes.
THE COURT: Factual basis, please.
MS. GRAD: Your Honor, from about May 2001 and continuing thereafter up to and including March 27, 2003, there was an agreement between Rodney Butler and others to possess with intent to distribute at least five kilograms of a mixture and substance containing a detectable amount of cocaine.
From May 2001 through March 2003 multiple individuals assisted Rodney Butler by transporting loads of powder cocaine from California to the Nashville, Tennessee and New Orleans, Louisiana areas. The individuals would transport the cocaine in vehicles obtained at Rodney Butler's direction with the cocaine hidden within compartments in the vehicles.
After the cocaine was delivered, the drug proceeds were usually returned to California, typically in the same vehicle compartments. On occasion, portions of the drug proceeds were provided directly to Rodney Butler when he made trips to Tennessee and Louisiana, after which Rodney Butler transported the proceeds back to California by driving them in vehicles or carrying them aboard commercial aircraft.
In total, defendant Rodney Butler possessed with intent to distribute at least 50 kilograms but less than 150 kilograms of powder cocaine.
THE COURT: Do you agree with the factual basis just made by Government's attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: How do you now plead to conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 United States Code, Sections 846 and 841(a)(1), guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: It is the finding of this Court in the case of United States versus Rodney Butler that this defendant is fully competent and capable of entering an informed plea.
The Court also finds that a factual basis has been stated for this plea, and that this defendant has made a voluntary, knowing and intelligent waiver of all of his Constitutional Rights. His plea is accepted, and he is now adjudged guilty of this offense.
A written presentence report is to prepared to assist the Court in sentencing. You are going to be asked to give information for that report. You can have your attorney present during that interview if you so desire.
At the time of your sentencing, both you and your attorney will be given the opportunity to speak to the Court regarding the sentence. The Government's attorney will also be given an opportunity to speak at that hearing.
I'm going to formally refer this defendant to the probation department for the preparation of a presentence investigation and report.
The date and time for sentencing will be set for January 2, 2007, at 8:30 a.m. in this courtroom.
MR. DUDLEY: Your Honor, can we move that back two weeks to the 16th. I was planning to take that week off, actually.
THE COURT: Government?
MS. GRAD: No problem, Your Honor.
THE COURT: Madam Clerk, are we available that date?
THE CLERK: Yes, Your Honor.
THE COURT: January 16, 2007, at 8:30 a.m. will be the judgment and sentence date.
Mr. Butler is to remain in the custody of the United States Marshal pending his judgment and sentence date.
MR. DUDLEY: Thank you, Your Honor.
MS. GRAD: Thank you, Your Honor.
THE COURT: Court's adjourned.
I, Diane J. Shepard, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.
