Opinion
CASE NO. 2:08-cv-472, CRIM. NO. 2:05-cr-111.
November 6, 2009
ORDER
Petitioner, a federal prisoner, has filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his federal habeas corpus petition, petitioner asserts, inter alia, that he wanted to plead guilty but his attorney erroneously advised him to proceed to trial and erroneously advised him regarding the sentencing ramifications. Petitioner asserts that as a result of counsel's inaccurate advice, he was sentenced more harshly than he would have been had he entered a guilty plea:
[E]ven if the government had offered to drop the third count 922(g) and 924(a) he would have accepted the plea offer assuming counsel would not have gave erroneous advi[c]e about it not making a difference, which the courts know this would have taken 40 — 48 months off of the 108 month sentence a 40% — 45% difference in the amount of time incarcerated.Amended Affidavit of Richard Anthony Newland, Doc. No. 41.
The District Court found petitioner guilty, as charged, after a bench trial, of possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (Count One), possession of one or more firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two) and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (Count Three). See Doc. No. 22 ; United States v. Newland, 243 Fed.Appx. 51, unpublished, 2007 WL 2404512 (6th Cir. August 22, 2007). On July 13, 2006, the Court sentenced petitioner to an aggregate term of 108 months imprisonment plus five years supervised release. Doc. Nos. 23, 27.
In response to petitioner's allegations, respondent indicates "[t]here was no `government's deal' to drop [the] gun charge" under 18 U.S.C. § 924(c). Return of Writ, at 10:
The United States never made an offer for the defendant to plead guilty to anything less than the 18 U.S.C. § 924(c) offense which carries a mandatory consecutive five-year term of imprisonment. Newland's suggestion otherwise is simply not true.Id., at 11. Respondent has submitted an affidavit from Attorney G. Gary Tyack, petitioner's defense counsel, which indicates in relevant part:
Newland was convinced the government could not prove his guilt, despite the fact that he had done the crimes alleged in the indictment. . . .
Because he had convinced himself his guilt would not be proven, Newland had no interest in plea negotiations which would result in a sentence of years of incarceration. My recollections are that no plea offer was forthcoming which would have resulted in a sentence of less than five years incarceration. Newland expressed no interest in pleading to the plea offer which was made.Affidavit of G. Gary Tyack, Exhibit A to Return of Writ.
It does not appear that any written plea offer has been made a part of the record before this Court. Because the terms of the government's plea offer are unclear from the record, this Court is unable to determine whether petitioner would have been sentenced less harshly had he pleaded guilty instead of proceeding to trial.
Therefore, respondent is DIRECTED to supplement the record within ten (10) days to indicate the exact terms of the guilty plea offer rejected by petitioner in this case.