MARTIN REIDINGER, District Judge.
On December 7, 2010, Petitioner was charged in a Bill of Indictment with four counts of bank fraud, in violation of 18 U.S.C. § 1344. [Doc. 1]. Petitioner previously had been convicted of bank fraud and wire fraud in the Middle District of North Carolina, and at the time of his indictment in this District, he was under a term of supervised release for that conviction. On January 27, 2011, this Court accepted a transfer of jurisdiction over Petitioner's supervised release from the Middle District of North Carolina. [Criminal Case No. 1:11-cr-00001-MR-DLH, Doc. 1]. On January 28, 2011, the United States Probation Office filed a petition in this District contending that Petitioner had violated the terms of his supervised release by committing a new law violation — namely, the four counts of bank fraud alleged in the aforementioned Indictment. [
On May 2, 2011, Petitioner pled guilty to the four charges of bank fraud without the benefit of a written plea agreement. [Criminal Case No. 1:10-cr-00089-MR, Doc. 27]. During the plea hearing, the Court explained that the maximum penalty for each count was thirty years' imprisonment, and the Court explained the elements of each charge. Petitioner affirmed under oath that he had discussed with his attorney how the United States Sentencing Guidelines might apply to his case, and he acknowledged that he could receive a sentence that was greater or less than the sentence recommended by the Guidelines. Petitioner also confirmed that his decision to plead guilty was voluntary and not the result of coercion, threats or any other promise from any source. Further, Petitioner averred that he had ample time to discuss his case with his attorney, including any possible defenses, and that he was entirely satisfied with the services of his attorney. [
On March 15, 2012, the Court held a combined sentencing and supervised release violation hearing. The Court first confirmed that Petitioner's answers during the Rule 11 hearing were truthful and that he would answer those questions the same way during his sentencing hearing if they were posed again. Petitioner's counsel confirmed that she was in attendance during his Rule 11 hearing and that she was satisfied that Petitioner fully understood each of the questions that had been asked of him that day and that he had fully understood each of the questions asked by the Court during his sentencing hearing.
Next, Petitioner admitted that he was in fact guilty of the four charges of bank fraud; that his plea of guilty was not the result of any threat or force or promise; and that he was pleading guilty knowingly and voluntarily. The parties further stipulated that the evidence in the Presentence Report represented a sufficient factual basis to support Petitioner's guilty plea. The Court then found that Petitioner's guilty plea was knowingly and voluntarily entered and that he understood the charges, potential penalties and consequences of his plea. The Court therefore accepted Petitioner's plea and entered judgment on the bank fraud charges. [
The Court then turned to the allegations in the supervised release violation petition. Petitioner admitted to Violation No. 1, a Grade A violation stemming from his conduct related to the four charges of bank fraud, and Violation No. 6, a Grade C violation related to his failure to report a change in his residence. [
Petitioner's counsel argued for a six- to nine-month term of community confinement on the bank fraud convictions based, in part, on Petitioner's serious health issues, including diabetes, back injuries he suffered after a fall in prison, severe headaches, and two spinal surgeries, among other ailments. Citing similar reasons, Petitioner's counsel argued for a sentence at the low end of the Guidelines range on the supervised release violations. Petitioner's counsel further noted that in the Middle District case, Petitioner had originally been sentenced to 46 months in prison following his conviction for wire fraud, bank fraud, and aggravated identity theft. While that case was on direct appeal, the parties had moved jointly to remand the case in light of
The Government opposed such a reduced sentence and noted that Petitioner's criminal history stretched back over twenty years and that imprisonment did not appear to have a deterrent effect on Petitioner's conduct. The Government asked for a high-end Guidelines sentence for both the supervised release violations and the bank fraud convictions and moved that those sentences be ordered to run consecutive to one another. [
The Court sentenced Petitioner to a term of 18 months on each count of bank fraud, with such terms to be served concurrently, and a consecutive term of 18 months on the supervised release violations, with a five-year term of supervised release. [
Petitioner appealed both sentences. On appeal, Petitioner argued that his sentences were unreasonable because the Court did not adequately address his medical condition or his counsel's request that the two sentences "be split between incarceration and community placement."
This § 2255 proceeding followed.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing.
Petitioner raises three claims in his original motion to vacate. He further moves to amend his § 2255 petition to include a claim of ineffective assistance of counsel. The Court will allow Petitioner's motion to amend his § 2255 petition because it was filed within one year of the date that his judgment became final and the Court has not ordered the Government to file a responsive pleading.
Petitioner raises three challenges to this Court's actions during his sentencing hearing. First, Petitioner argues that the Court committed procedural error by "fail[ing] to consider arguments in mitigation. Specifically the district court never addressed his argument that severe medical issues supported a sentence combining community confinement and incarceration." [Doc. 1 at 1]. This argument was made on direct appeal and the Court expressly declined to grant relief. Accordingly, this issue may not be relitigated in this proceeding.
In his second ground for relief, Petitioner contends that this Court erred in concluding that Petitioner could not receive credit for the time he "over-served" in the Middle District. [
In his third ground for relief, Petitioner argues that this Court erred in not considering home confinement or incarceration for credit toward [his] sentence." [
In his amended motion, Petitioner contends that his guilty plea was not knowingly and voluntarily entered because his trial counsel assured him that he would receive eleven months of credit towards his sentence for the time that he was incarcerated in his home awaiting sentencing, and that this assurance was "part of the reason [he] accepted the original plea agreement." [Doc. 4 at 2]. This argument is without merit.
As an initial matter, Petitioner did not plead guilty pursuant to a plea agreement; he chose to enter a "straight-up" plea of guilty. As such, there simply was no "original plea agreement" for Petitioner to accept. In any event, Petitioner's claim is belied by his sworn statements at the Rule 11 hearing. Petitioner expressly stated under oath that no one had promised him anything in return for his decision to enter guilty pleas to the four charges of bank robbery, and that he was pleading guilty because he was in fact guilty. Further, Petitioner acknowledged that he could face a maximum term of thirty years' imprisonment for each bank fraud count. He further asserted that he was entirely satisfied with the services of his attorney.
Moreover, this Court questioned Petitioner at the outset of his sentencing hearing, and confirmed that the Plea and Rule 11 hearing was properly conducted, that Petitioner's decision to plead guilty was not the product of any promise, threat or coercion, and that Petitioner had knowingly and voluntarily chosen to forego his right to contest the charges at trial. "For the 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. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."
For these reasons Petitioner's present, self-serving statements fail to undermine the knowing and voluntary nature of his guilty plea. This claim therefore will be denied.
In a related motion, Petitioner seeks to proceed with this action without the prepayment of fees. The record in this matter indicates that the Petitioner was determined to be indigent and thereby was appointed counsel to represent him in the underlying criminal proceedings. Based on this determination of indigency, the Petitioner is entitled to proceed without prepayment of fees on appeal. Accordingly, the Petitioner's request to proceed in forma pauperis will be denied as moot.
Petitioner also seeks the appointment of counsel to represent him in this collateral action. Prisoners have no constitutional right to counsel in a post-conviction proceeding.
Based on the foregoing, the Court concludes that Petitioner's motions must be denied.
Finally, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
The Clerk is respectfully directed to close this civil case.
