MARTIN REIDINGER, District Judge.
Petitioner was charged in a Bill of Indictment along with two co-defendants with robbery within the boundaries of the Eastern Band of Cherokee Indians reservation (Count One), and kidnapping (Count Two). [Criminal Case No. 1:17-cr-00143-MR-WCM-1 ("CR"), CR Doc. 21].
Petitioner pled guilty to Count One in exchange for the Government's dismissal of the remaining count. He signed a written Plea Agreement in which he admitted to being guilty as charged in Count One and acknowledged: his minimum and maximum sentencing exposure; that the sentence had not yet been determined and an advisory guideline sentence would be calculated; that the sentence, up to the statutory maximum, would be determined at the Court's sole discretion; and that he would not be able to withdraw the plea as a result of the sentence imposed. [CR Doc. 35 at 1-2]. In the Plea Agreement, the parties agreed to jointly recommend: that the base offense level should be 20; that the reasonably foreseeable loss amount was less than $20,000; that a dangerous weapon was brandished; that a person was physically restrained to facilitate commission of the offense; that Petitioner knew or should have known that the victim was a vulnerable victim; that the entry of the plea was timely; that if the Court determined from Petitioner's criminal history that he qualified as a career offender or an armed career criminal, such provisions may be used in determining the sentence; and that the parties would not seek any other enhancements or reductions to the offense level. [
A Rule 11 hearing was held before Magistrate Judge Howell on December 22, 2017. [CR Doc. 84]. Petitioner stated under oath that he had taken some medications within 48 hours but that they were not affecting his mental faculties at all, that his mind was clear, and that he understood he was there to enter a guilty plea that could not be later withdrawn. [
In support of Petitioner's guilty plea, the parties submitted a written Factual Basis that sets forth the following information with regards to Petitioner:
[CR Doc. 36 at 1-2].
Petitioner certified that the written Factual Basis was true and accurate and that, if the matter had proceeded to trial, the Government would have been able to prove each of the statements in the Factual Basis beyond a reasonable doubt. [CR Doc. 40].
The presentence investigation report ("PSR") identified Petitioner's base offense level as 20. [CR Doc. 56 at ¶ 12]. Three levels were added because a dangerous weapon was brandished or possessed; two levels were added because a person was physically restrained; and two levels were added because Petitioner knew or should have known that the victim of the offense was a vulnerable victim. [
The PSR calculated Petitioner's criminal history category to be VI. [
Petitioner stated at the sentencing hearing on April 19, 2018 that his statements at the Rule 11 hearing were true and correct and that he would answer the questions the same if asked again. [CR Doc. 83 at 4]. The Court sentenced Petitioner to 120 months' imprisonment followed by three years of supervised release. The Judgment was entered April 30, 2018. [CR Doc. 66]. Petitioner did not appeal.
Petitioner filed the instant pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 on May 13, 2019. Liberally construing his arguments, he argues that: (1) his guilty plea was involuntary because he was coerced into pleading by the lack of medical care he was receiving in pretrial detention; (2) his conversations with counsel at the courthouse could be overheard in violation of the Sixth Amendment; (3) the predicate offenses for his § 924(c) charge are not violent felonies; and (4) counsel was ineffective for failing to raise the foregoing and failed to remove herself from representing him even though she was operating under a conflict of interest. Petitioner argues that he did not raise these claims on direct appeal because his plea agreement contained an appellate waiver, he was "deathly ill," and counsel refused to help him. [Doc. 1 at 18].
In a letter dated July 1, 2019 and docketed July 5, 2019, Petitioner argues that his offense was not violent, that he was shot by a vigilante as he fled from a bank robbery whereas he only possessed a bb gun and did not hurt anyone, and that his prior convictions do not qualify as § 924(c) predicates. These arguments appear to be in reference to Petitioner's 1995 convictions for bank robbery, § 924(c), and carjacking. It was during this particular bank robbery that Petitioner was shot by a bank customer while Petitioner was attempting to flee the scene. He asks for an FBI investigation into the circumstances of his shooting and for the appointment of counsel. [Doc. 3].
The Government has filed a Response arguing Petitioner's claims of ineffective assistance of counsel are meritless and that the other claims are waived, procedurally defaulted, and meritless. The Government further argues that the Motion to Amend should be denied because any new claims are untimely and that his civil rights claims are not cognizable in a § 2255 proceeding. [Doc. 4].
In his Reply, Petitioner claims that he does not understand the Government's Response but that he "can fe[e]l the wrongness of it." [Doc. 5 at 1]. Petitioner further argues that he knows that he is not a career offender, that counsel tainted the entire case, and that his current conviction was not a violent crime.
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings. . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. In many cases, an evidentiary hearing is required to determine whether or not counsel was ineffective for misadvising a petitioner about a plea offer.
At the outset, the Court will address Petitioner's letter, which the Court construes as a motion to amend. In it, Petitioner elaborates on his § 2255 claims and appears to seek relief in the nature of a civil action against the person who prevented Petitioner's escape after his 1995 bank robbery. He further requests the appointment of counsel. [Doc. 5].
The Rules Governing Section 2255 Proceedings do not specify a procedure for amending motions to vacate. Therefore, courts have typically applied Federal Rule of Civil Procedure 15 to the amendment of a § 2255 motion to vacate.
As for Petitioner's attempt to add a claim against the person who prevented Petitioner's fleeing the scene after his 1995 bank robbery, Petitioner raises this new claim for the first time in his motion to amend. It is, however, untimely because he filed his motion to amend more than a year after his conviction became final.
As for Petitioner's request for the appointment of counsel, such request is denied. Petitioner has no constitutional right to the appointment of counsel to file post-conviction motions.
In his first claim, Petitioner contends that his guilty plea was not knowingly and voluntarily entered.
In his written plea agreement, Petitioner expressly agreed to waive his appellate and post-conviction rights except for claims of ineffective assistance of counsel and prosecutorial misconduct. He acknowledged at his Rule 11 hearing that he knowingly and willingly accepted this limitation on his right to appeal. A knowing and voluntary waiver of the right to pursue post-conviction relief is enforceable.
Additionally, this claim is procedurally barred. A claim that could have been pursued on direct appeal, but was not, is procedurally barred unless the petitioner shows both cause for the default and actual prejudice or demonstrates that he is actually innocent of the offense.
Petitioner's claim also fails on the merits. Before accepting a guilty plea, a district court must conduct a plea colloquy in which it informs the defendant of, and determines if the defendant comprehends, the nature of the charge to which he is pleading guilty, the maximum possible penalty he faces, any mandatory minimum penalty, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
Here, the Court complied with Rule 11 by confirming that Petitioner understood the charges, his sentencing exposure, and the rights he was relinquishing by pleading guilty. Petitioner's present contention that his plea was involuntary due to inadequate treatment for his medical condition is refuted by the Plea Agreement, the Factual Basis, and Petitioner's statements in open court. Petitioner was advised of the relevant statutes and elements of the offense in open court; he agreed that he understood the charges and discussed them with counsel; and he acknowledged the rights he was waiving by pleading guilty. He acknowledged that he had taken some medication but that his mind was clear, he was there to plead guilty, and he understood that the plea could not be later withdrawn. [CR Doc. 84 at 5]. He confirmed at the sentencing hearing that his Rule 11 statements were true and that he would answer the questions the same way. [CR Doc. 83 at 4]. His present self-serving and unsupported claims to the contrary are therefore rejected.
For all these reasons, Petitioner's claim challenging the voluntariness of his guilty plea must be denied.
Second, Petitioner contends that his conversations with counsel at the courthouse could be overheard in violation of right to counsel under the Sixth Amendment.
This claim is waived by Petitioner's knowing and voluntary guilty plea.
This claim would fail on the merits, however, even if it were not waived and procedurally barred. The Sixth Amendment right to counsel protects the right to effective assistance of counsel and thus necessarily, the "privacy of communication with counsel."
Petitioner alleges that his co-defendant overheard a discussion that Petitioner had with his counsel and that Petitioner, in turn, overheard one of co-defendant's discussions with his counsel. Petitioner makes the conclusory assertion that the Government "is aware or should be aware" of these conversations with counsel, which were supposed to be private. [Doc. 1 at 9]. Petitioner does not allege, however, that any actual government intrusion occurred, that the government gleaned any information from overhearing any discussion whatsoever, or that Petitioner suffered any detriment or was prejudiced in any way. Petitioner therefore has failed to demonstrate that any Sixth Amendment violation occurred. Accordingly, this claim will be denied and dismissed.
Next, Petitioner contends that he lacks the predicate offenses to support either a § 924(c) conviction or the career offender sentencing enhancement.
At the outset, the Court notes that Petitioner was not convicted of a violation of § 924(c) in this matter. With respect to Petitioner's challenge to his career offender designation this claim was waived by Petitioner's written plea agreement in which Petitioner expressly waived his post-conviction rights. This claim is also procedurally defaulted from § 2255 review because Petitioner failed to raise any sentencing claim on direct appeal.
Even if Petitioner were not barred for all these reasons from asserting this claim, it would fail on the merits. Petitioner contends that his convictions did not qualify as career offender predicates because they were more than 15 years old. This claim is conclusively refuted by the PSR, which shows that Petitioner was not released from prison on these matters until March 2, 2009. [
Finally, Petitioner contends that counsel was ineffective for failing to adequately represent him with regards to the foregoing claims and for operating under an actual conflict of interest.
First, Petitioner has failed to demonstrate ineffective assistance of counsel for failing to address the claims discussed above. Counsel cannot be deemed ineffective for failing to raise these claims because they are meritless. Petitioner is thus unable to demonstrate that counsel was deficient for failing to raise those meritless claims or that counsel's failure to raise the claims prejudiced him in any way.
Second, Petitioner has failed to demonstrate that counsel operated under an actual conflict of interest. To establish ineffective assistance of counsel based on a conflict of interest, a defendant who raised no objection at trial must demonstrate that counsel operated under an "actual conflict of interest" this conflict "adversely affected his lawyer's performance."
An actual conflict exists when a petitioner shows that his counsel "actively represented conflicting interests."
Here, Petitioner contends that counsel previously represented a person against whom Petitioner was the key witness and that, when Petitioner tried to discuss the issue with counsel, counsel said they could not discuss it anymore. Petitioner, however, has not demonstrated the existence of an actual conflict of interest or any adverse effect on his criminal representation arising from such alleged conflict. According to Petitioner, the alleged conflict resulted from counsel's representation of another individual in a prior case. Petitioner does not allege that any conflicting representation was concurrent with Petitioner's case. Nor does Petitioner demonstrate that there was any actual effect on counsel's performance. His claim therefore fails on the merits and will be denied.
Petitioner also appears to allege numerous violations of his constitutional rights by the person who prevented his flight after committing the 1995 bank robbery. As noted previously, such claims are not cognizable in a § 2255 action.
For the foregoing reasons, Petitioner's Motion to Amend is granted in part and denied in part, and the Motion to Vacate is denied and dismissed.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability.
DECISION BY COURT. This action having come before the Court and a decision having been rendered;
IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the Court's March 4, 2020 Memorandum of Decision and Order.