Filed: Jan. 21, 2020
Latest Update: Jan. 21, 2020
Summary: ORDER JAMES D. WHITTEMORE , District Judge . BEFORE THE COURT is Petitioner Dunbar's Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence. (cv Dkt. 1). After conducting the review required by Rule 4(b), Rules Governing Section 2255 Proceedings (2005), 1 the motion is due to be summarily denied because it plainly appears from the motion and record of prior proceedings that Dunbar is not entitled to relief. A response from the Government is therefore not necessary. PROC
Summary: ORDER JAMES D. WHITTEMORE , District Judge . BEFORE THE COURT is Petitioner Dunbar's Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence. (cv Dkt. 1). After conducting the review required by Rule 4(b), Rules Governing Section 2255 Proceedings (2005), 1 the motion is due to be summarily denied because it plainly appears from the motion and record of prior proceedings that Dunbar is not entitled to relief. A response from the Government is therefore not necessary. PROCE..
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ORDER
JAMES D. WHITTEMORE, District Judge.
BEFORE THE COURT is Petitioner Dunbar's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (cv Dkt. 1). After conducting the review required by Rule 4(b), Rules Governing Section 2255 Proceedings (2005),1 the motion is due to be summarily denied because it plainly appears from the motion and record of prior proceedings that Dunbar is not entitled to relief. A response from the Government is therefore not necessary.
PROCEDURAL BACKGROUND
Dunbar pleaded guilty pursuant to a written plea agreement, to one count of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). (cr Dkt. 122). He was sentenced to 48 months in prison, followed by 3 years of supervised release. (cr Dkt. 143). Judgment was entered on October 15, 2019. (Id.). There was no appeal.
Dunbar raises the following claims in his § 2255 motion to vacate and affidavit in support:
1. "That the United States Attorney ... failed to comply with Rule 6 of Federal Rules of Criminal Procedures. Which violated affiants U.S. Constitutional right under the 5th Amendment that deprived affiant of procedural due-process from the deliberate bypassing of the District Courts' rules of the Federal Rules of Criminal Procedure."
2. "That, [the] Federal Public Defender ... failed to object to the Government's lack of compliance with the Grand Jurys' drawing, and selecting process of legally qualified Grand Jurors. Which has caused, and continues to cause, prejudice and injury to affiants defense, which violated affiants 6th Amendment right to effective assistance of counsel, and, Rule 6 of the Federal Rules of Criminal Procedure."
3. "That, trial counsel ... failed to challenge the Governments True Bill Indictment after affiant directed his attention to the fact that the Government's True Bill Indictment lacked Certification & Registration (sealed) of the Clerk of Court, of the United States District Court following the signature of the Grand Jury foreperson."
4. "That, Rule 6 of the Federal Rules of Criminal Procedures states that (all) United States True Bill Indictments must be returned in open court before a Magistrate Judge, and, Certified by the Clerk of Court by the Grand Jurys Foreperson immediately following the return of a True Bill Indictment."
5. "That the Government's True Bill Indictment in affiants case (United States v. Carlton Dunbar Case No. 5:18-cr-21-OC-27PRL) lacks Certification and (seal) of the Clerk for the United States District Court."
6. "That affiant has no record that twelve or more (legally qualified) Grand Jurors existed and returned a True Bill Indictment charging affiant with a Federal offense."
7. "That there is no available (transcripts) of 12 or more legally qualified Grand Jurors return of a True Bill Indictment in open court which charged affiant with a crime as required under Rule 6 of Federal Rules of Criminal Procedures. Affiant believes he was `shamed' by the Government and counsel, as a `ham sandwich' theory which trial counsel often joked that the Government can indict a `ham sandwich.'"
8. "That the alleged victim was never identified by full name, as a living person, prison-inmate, in the Government's True Bill Indictment."
9. "That the Government never informed affiant of the amount of penalty the Government sought to collect by the Court in the Indictment."
(cv Dkt. 1 at 12-13) (alterations in original).2
DISCUSSION
Dunbar raises nine claims in his § 2255 motion, all of which relate to his indictment. (cv Dkt. 1). However, in his motion and affidavit, two ineffective assistance of counsel claims are made. For the reasons discussed, all claims were waived by his guilty plea.
A defendant who enters a guilty plea waives all non-jurisdictional challenges to his conviction, including pre-plea ineffective assistance of counsel which do not relate to the decision to plead guilty. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). None of his claims relate to his decision to plead guilty. It follows, therefore, that by pleading guilty, he waived his claims relating to the indictment and grand jury procedures.3 And he fails to identify any jurisdictional defects in the indictment.4 Claims one, four, five, six, seven, eight, and nine are therefore due to be summarily dismissed.5 See Tollett, 411 U.S. at 267 ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.").
In claims two and three, Dunbar alleges ineffective assistance of counsel. His allegations, however, do not demonstrate that the knowing and voluntary nature of his guilty plea was undermined by anything his attorneys said or did, or failed to say or do. It follows, therefore, that his complaints about his attorneys' failure to object to the indictment or grand jury procedures are not about his decision to plead guilty and could not have undermined the knowing and voluntary nature of his guilty plea. Wilson, 962 F.2d at 997; Hutchins v. Secretary for Dept. of Corr., 273 F. App'x 777, 778 (11th Cir. 2008). Rather, any alleged deficiencies in counsels' performance were subsumed within his decision to plead guilty.6 Claims two and three are therefore due to be summarily dismissed.
CERTIFICATE OF APPEALABILITY ("COA")
Dunbar is not entitled to a COA. To obtain a COA, he "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). He cannot make this showing and is therefore not entitled to a COA or to appeal in forma pauperis.
CONCLUSION
Dunbar's § 2255 motion (cv Dkt. 1) and Motion for Permission to Appeal In Forma Pauperis (cv Dkt. 2) are DENIED. The Clerk is directed to CLOSE the case.
DONE AND ORDERED.
