Opinion
Nos. 3:99-CR-0251-X (02), 3:01-CV-0423-P
June 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : This is a Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255.
Parties : Movant is a former federal prisoner currently under supervised release by the terms of his federal sentence. He is detained in Denton County Jail on an immigration detainer. The respondent is the United States of America (government).
Procedural History : In September 1999, movant pled guilty to illegal reentry after deportation of a convicted felon in violation of 8 U.S.C. § 1326 (a) and (b)(2). On January 10, 2000, the Court sentenced him to thirty-seven months imprisonment. The Fifth Circuit Court of Appeals affirmed the conviction on direct appeal. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Movant raised two claims on appeal: (1) the trial court erred in failing to invite an allocution from movant and (2) the trial court misapplied the enhanced sentencing of 8 U.S.C. § 1326 (b)(2), due to an error in viewing a previous conviction as an "aggravated felony." Id. at 981.
On March 5, 2001, movant filed the instant motion under 28 U.S.C. § 2255 wherein he alleges that he involuntarily entered his guilty plea due to ineffective assistance of counsel. On April 16, 2001, the government filed its answer with an attached affidavit from movant's trial attorney. On May 16, 2001, movant filed a reply to that answer wherein he requests an evidentiary hearing and appointment of counsel. On July 23, 2001, movant filed supplemental authority for his position. On February 14, 2002, he again moved for an evidentiary hearing.
The Court has not considered the affidavit of counsel in dispensing with the instant motion to vacate. The Court does not engage in a battle of affidavits to determine whether to grant or deny such a motion. If the information within submitted affidavits is necessary to the resolution of a motion to vacate, the Court conducts an evidentiary hearing so that it can properly judge the credibility of the affiants. In this instance, no evidentiary hearing is necessary.
On April 23, 2001, movant sought leave to file a reply brief within thirty days. The Court hereby grants that motion. The reply brief filed May 16, 2001, is thus timely.
Substantive Claims : Movant claims he involuntarily entered his guilty plea due to ineffective assistance of counsel. He specifically claims that his trial attorney rendered ineffective assistance in the following respects: (a) assuring him that his sentence would be minimal or immediate deportation; (b) failing to explain the meaning of "aggravated felony" and the consequences of signing a factual resume that stipulates to an aggravated felony; (c) failing to subpoena various individuals to verify movant's position with respect to illegal businesses allegedly operated by movant; (d) failing to be prepared to argue a downward departure from the sentencing guidelines under various provisions of USSG § 5K2; and (e) failing to argue the structure of the aggravated felony or the standard of proof.
II. Scope of Relief Available under § 2255
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) ( en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Defendants who collaterally attack their federal convictions, furthermore, may not raise grounds previously raised on direct appeal. United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).
In addition, defendants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing "cause" for the omission and "actual prejudice" resulting from the asserted error. Shaid, 937 F.2d at 232. Even then, any new assertion of error is limited to "issues of constitutional or jurisdictional magnitude." Id. The cause and prejudice test applies even to allegations of fundamental constitutional error. Id. The only exception to the application of the test is when a movant can establish a fundamental miscarriage of justice, i.e. that he or she is actually innocent of the crime convicted. Id. A showing of ineffective assistance of counsel, furthermore, satisfies the cause and prejudice standard. See United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000). Claims of ineffective assistance of counsel are "generally not reviewed on direct appeal because the claims have not been first presented to the district court, and an adequate record has not been developed with respect to such claims." United States v. Sevick, 234 F.3d 248, 251 (5th Cir. 2000).
Movant does not appear to allege in his motion to vacate or reply brief that he is actually innocent of the crime for which he has been convicted. He instead attempts to show cause and prejudice by showing ineffective assistance of counsel. To properly consider the challenge to the validity of the plea movant entered in this case, the Court must thoroughly review what transpired at the plea and sentencing hearings.
The Court notes that, in his motion of February 14, 2002, movant claims he is actually innocent. He, nevertheless, fails to demonstrate his actual innocence.
III. Review of Hearings
On September 20, 1999, movant appeared before the Court for rearraignment. (Tr. of Rearraignment Proceedings at 1.) He indicated that he was competent to plead guilty. ( Id. at 3.) His attorney stated that he believed movant "to be mentally competent." ( Id.)
The Court summarized the charges as follows: "you are accused . . . of illegal reentry into the United States by an alien after having been deported and convicted of an aggravated felony." ( Id. at 2.) Movant stated that he understood the charge. ( Id.)
The Court explained to movant that he had constitutional rights to plead not guilty; to have a trial by jury; to make the government prove its case; to have effective assistance of counsel; to have compulsory process; to choose whether to testify at trial; and to confront and cross-examine witnesses. ( Id. at 4.) Movant stated in open court that he understood those rights and that he would be giving them up, if the Court accepted his plea. ( Id. at 4-5.) He stated that he understood that the Court could order restitution, if applicable, upon acceptance of his plea. ( Id. at 5.) He stated that he understood that, upon his conviction, he would lose the right to vote, serve on a jury, hold public office, and to possess firearms. ( Id.) He stated that he understood the deportation consequences of his plea. ( Id.) He stated, that understanding all of that, he still wanted to plead guilty. ( Id. at 5-6.)
At the request of the Court, counsel for the government informed movant that the maximum penalty for the offense to which movant intended to plead guilty was twenty years imprisonment; a fine not to exceed $250,000, and term of supervised release not to exceed three years. ( Id. at 6.) Movant stated that he understood his maximum sentence. ( Id.) He further stated that he understood the potential consequences of his plea. ( Id.) With such understanding he persisted with his guilty plea. ( Id.)
Movant stated that he understood that the sentencing guidelines would apply to his sentence. ( Id. at 6-7.) He further stated that he understood that no one could accurately predict the guideline range until the completion of a presentence investigation. ( Id. at 7.)
At the plea hearing, the government read into the record the factual resume and the single count indictment to which movant intended to plead guilty. ( Id. at 8-9.) In the factual resume, movant admitted that he illegally reentered the United States, after being deported and being convicted for conspiracy to violate 18 U.S.C. § 1014, 2113. ( Id. at 9.) He further admitted that the conviction was an aggravated felony when he reentered the United States. ( Id.) He stated that he agreed with the facts summarized in the factual resume. ( Id.) Defense counsel clarified that the definition of aggravated felony had changed since movant's original conviction and subsequent deportation due to that conviction. ( Id. at 9-10.) Counsel further conceded that, when movant reentered the United States, his previous conviction was characterized as an aggravated felony under the applicable law. ( Id. at 10.) Movant thereafter pled guilty and agreed and stipulated "that all of the allegations in the factual resume that you signed as well as in the indictment you're pleading guilty to are true and correct." ( Id. at 10-11.) Movant indicated that he was satisfied with the representation he had received. ( Id. at 11.)
Movant stated that he was making his plea "freely and voluntarily." ( Id.) He stated that no one had forced, threatened, or coerced him to plead guilty. ( Id.) He stated that no one had promised him a certain or specific sentence to obtain his plea. ( Id.) He stated that he was not pleading guilty to protect someone else from criminal prosecution. ( Id.) He stated that he was not pleading guilty due to any promises made to him. ( Id. at 12) He stated that he was pleading guilty only because he was guilty. ( Id.)
The Court found movant competent and capable of entering an informed plea. ( Id.) It found the plea freely and voluntarily made. ( Id.) It found that independent facts establishing all elements of the charged offense supported the plea. ( Id.) It accepted the plea subject to its review of the presentence report. ( Id.)
On December 20, 1999, movant appeared before the Court for sentencing. (Tr. of Sentencing Proceedings, Vol. I, at 1.) Movant indicated that he had seen and reviewed the presentence report (PSR), his and the government's response to that report, a motion for downward departure filed by his attorney, and the government's response to that motion. ( Id. at 5.) There were no objections to the PSR. ( Id.) The Court heard arguments about downwardly departing from the guidelines and took testimony from a Special Agent for the United States Immigration and Naturalization Service. ( Id. at 6-37.) It took the matter under advisement and indicated that it would issue its ruling on the motion on January 3, 2000. ( Id. at 36.)
Before sentencing movant on January 3, 2000, the Court heard further argument from counsel on the issue of downward departure. (Tr. of Sentencing Proceedings, Vol. II, at 4-10.) The Court then denied the motion, but considered the information provided as mitigating circumstances and sentenced movant to the minimum incarceration under the guidelines — thirty-seven months. ( Id. at 10.)
IV. Validity of Guilty Plea and Ineffective Assistance of Counsel
Movant claims that he entered his plea involuntarily due to ineffective assistance of counsel. When defendants plead guilty to the charges against them, the voluntariness of such pleas is an important factor to consider in determining the reasonableness of acts and omissions of trial counsel. A plea of guilty waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Joseph v. Butler, 838 F.2d 786, 789 (5th Cir. 1988). Such a plea "is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.'" Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). The Fourteenth Amendment Due Process Clause imposes these requirements. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady, 397 U.S. 742; Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). "The voluntariness of a plea is determined by 'considering all of the relevant circumstances surrounding it.'" Id. (quoting Brady, 397 U.S. at 749). A plea qualifies as intelligent, furthermore, when the criminal defendant enters it after receiving 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' Bousley, 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)).
Federal courts will uphold guilty pleas against constitutional challenges, when the pleas are "knowing, voluntary and intelligent." James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). "If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980) ( en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981) (per curiam).
"Before the trial court may accept a guilty plea, the court must ensure that the defendant 'has a full understanding of what the plea connotes and of its consequence.'" Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). A plea of guilty "is more than a mere confession; it is an admission that the defendant committed the charged offense." Id. at 327. A prisoner may therefore not generally "collaterally attack a voluntary and intelligent" plea. Id. "A guilty plea is invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt." James, 56 F.3d at 666 (citing Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)). In determining whether a plea is voluntary and intelligent, "the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Taylor, 933 F.2d at 329.
Once a criminal defendant enters a knowing, intelligent, and voluntary plea, all non-jurisdictional defects in the proceedings below are waived except for claims of ineffective assistance of counsel relating to the voluntariness of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 531 U.S. 919 (2000); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
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. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 770-771 (1970)].Tollett v. Henderson, 411 U.S. 258, 267 (1973).
"When considering challenges to guilty plea proceedings, [the courts] have focused on three core concerns: absence of coercion, the defendant's understanding of the charges, and a realistic understanding of the consequences of a guilty plea." United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). In the sentencing context, "the consequences" of a guilty plea means only that the defendant knows "the maximum prison term and fine for the offense charged." Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir. 1996) (internal quotations omitted). The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained in Rule 11 of the Federal Rules of Criminal Procedure. The Fifth Circuit has held that the admonishments under Rule 11 provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." Gracia, 983 F.2d at 627.
Sworn testimony in open court carries a strong presumption of veracity in a subsequent federal proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Court records, furthermore, are given a presumption of regularity. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974); Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999).
The record reflects that movant had a clear understanding of the proceedings against him, the nature of the offense of which he was charged, and the consequences of entering his guilty plea. He undoubtedly knew the maximum prison term and fine to which he could face for the charged offense. He has not overcome the presumption of verity accorded solemn declarations made in open court. He has not overcome the presumption of regularity accorded court records. Given the totality of the circumstances, it is evident that movant fully understood the charge against him and the consequences of his plea. Likewise, it is clear that the plea was entered without coercion. The plea appears knowing, intelligent, and voluntary.
In his reply brief, movant asserts:
No defendant, or only a very few ever challenge the collogue the court proceeds through. A defendant stands before the court and routinely answer [sic] the court in the affirmative. Often these answers do not represent the discussion of counsel, or what a defendant actually believes, or feels. Most defendants do not really understand the depth of the questions or the consequences; it is merely a means to an end.
(Reply at 3.) Such assertion does not overcome the presumption of verity accorded solemn declarations made in open court. Were the Court to find otherwise, it would eviscerate the presumption entirely. Movant would like the Court to presume that what a defendant says in open court to the questions propounded by counsel and the Court does not reflect the truth. The Court declines to accept or apply such a presumption.
A guilty plea is, nevertheless, "open to attack on the ground that counsel did not provide the defendant with 'reasonably competent advise.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-771 (1970)). With respect to such pleas, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 34 (1972). The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI.
To successfully state a claim of ineffective assistance of counsel, one must generally demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when a movant alleges he was denied effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The courts determine the reasonableness of representation on a case-by-case basis. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
In this instance, movant raises only two claims of ineffective assistance of counsel that could potentially impact the validity of his guilty plea. He claims that counsel assured him that his sentence would be minimal or immediate deportation. He further claims that counsel failed to explain the meaning of "aggravated felony" and the consequences of signing a factual resume stipulating to a prior aggravated felony.
Movant has shown no prejudice from these alleged deficiencies of counsel. When a prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy this requirement in the plea context, the prisoner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.
In this instance, movant has shown no reasonable probability that he would have insisted on proceeding to trial in the absence of the alleged errors of counsel. The Court admonished movant as to the range of punishment and explained to him that no one can accurately predict a sentence term before the compilation of the presentence report. Movant stated that he understood these things. Although the Court did not explicitly define the meaning of aggravated felony, there was much discussion of that element of movant's offense during the plea heating. Movant, furthermore, stated that he understood the charge against him and stipulated to the truth and correctness of all the facts contained in the factual resume he signed. Despite all the admonitions from the Court, movant persisted with his guilty plea. The alleged deficiencies of counsel do not invalidate his plea. They did not affect the outcome of the plea process.
Movant also claims his attorney rendered ineffective assistance by failing to subpoena various individuals to verify movant's position with respect to illegal businesses allegedly operated by movant; failing to be prepared to argue a downward departure from the sentencing guidelines under various provisions of USSG § 5K2; and failing to argue the structure of the aggravated felony or the standard of proof. These alleged deficiencies of counsel occurred after movant pled guilty. They thus could not have impacted the voluntariness of the plea. They go to the validity of his sentence.
The Court finds the claim that counsel failed to subpoena individuals on movant's behalf conclusory and unsupported by the record. Movant specifically contends that counsel failed to "subpoena various individuals" to testify at the sentencing hearing held December 20, 1999, despite movant's request for such subpoenas. Movant, however, fails to identify who counsel should have subpoenaed, what testimony such individuals would give, or whether such individuals were ready, willing, and able to testify on movant's behalf. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000). The record, furthermore, reveals that counsel in fact subpoenaed two individuals for the hearing following the one that occurred on December 20, 1999. To the extent these are the individuals that movant wanted to testify in December, any failure to have them at the December hearing was cured by having them at the January hearing.
The Court likewise finds the claim that counsel was unprepared to argue for a downward departure conclusory and unsupported by the record. The record belies the suggestion that counsel was unprepared to argue such departure. Counsel in fact strenuously argued for such departure. That he was unsuccessful does not mean that he was unprepared.
As for the allegation that counsel failed to argue the structure of the aggravated felony or the standard of proof, the Court finds no deficiency of counsel. "Counsel cannot be deficient for failing to press a frivolous point." Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995). Nor is "counsel . . . required to make futile motions or objections." Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Counsel need not assert and pursue frivolous objections or challenges to render effective assistance. Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998). In this case, "[t]he evidence presented to the district court [on the aggravated-felony issue] included the PSR, which recommended an enhanced sentence based on Dabeit's previous conviction, and Dabeit's factual resume adopted in the guilty plea, which stipulated that he had previously been convicted of an aggravated felony." See United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000). Movant was previously "convicted for conspiracy to perpetrate a checking and savings account kite scheme in violation of 18 U.S.C. § 1014 and 2113(b)." Id. The conviction under § 2113(b) satisfies "the elements of an aggravated felony," as defined in 8 U.S.C. § 1101 (a) (43) (G), (U). Id. at 983-84 n. 3. In view of the evidence before the Court and the applicable definition of aggravated felony, a challenge to the nature of movant's previous conviction would have been futile.
In this instance, furthermore, movant claimed the trial court erred with respect to characterizing movant's prior conviction as an aggravated felony for purposes of sentencing. See United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000). The Fifth Circuit found no trial error after conducting a plain error analysis. Id. at 983-84. Although the Fifth Circuit looked at the issue through the lens of a plain error analysis, its decision clearly indicates that under the facts of this case a challenge to the aggravated-felony enhancement would have ended in failure. Id.
Movant, furthermore, has demonstrated no prejudice from any of these alleged deficiencies of counsel. To show prejudice in the sentencing context, movant must demonstrate that the deficiencies of counsel created a reasonable probability that his sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). Although movant's latter three claims of ineffective assistance arose in the sentencing context, he has shown no reasonable probability that his sentence would have been less harsh in the absence of those alleged deficiencies.
The Court sentenced movant to the minimum term of incarceration permitted by the guidelines in the absence of a successful motion for downward departure. To obtain a lighter sentence, movant would have had to convince the Court that it was erroneously applying the guidelines with respect to the characterization of his prior conviction as an aggravated felony or movant would have had to succeed on his motion for downward departure. Movant, however, has not shown that the witnesses that he wanted to testify at the December hearing would have altered the Court's ruling on the motion for downward departure. He has not shown that greater preparation by counsel with respect to arguing the motion for downward departure would have altered the Court's ruling on that motion. He has not shown that the Court would not have enhanced his base offense level for the prior aggravated felony had counsel argued that the prior conviction should not be considered an aggravated felony within the meaning of the applicable guideline. In short, movant has failed to show prejudice.
V. Conclusion
Considering all the circumstances, movant has not shown a reasonable probability that, but for errors of counsel, he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that absent errors of counsel, his sentence would have been significantly less harsh. In some instances, furthermore, his claims are conclusory and unsupported by the record. In addition, with respect to his claim that counsel failed to challenge the nature of movant's prior conviction, movant has shown no deficiency of counsel. He has simply shown no ineffective assistance of counsel.
Movant was fully aware of the consequences of his plea as shown by the fact that he was specifically admonished as to the maximum term of imprisonment and fine that could be imposed. A guilty plea "entered by one fully aware of the direct consequences . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business ( e.g. bribes)." See Brady v. United States, 397 U.S. 742, 755 (1970). When "deception, an unfulfillable promise, or misrepresentation" induces a plea, the plea is involuntary. United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997).
Given the totality of the circumstances, it is evident that movant voluntarily and knowingly pled guilty. Likewise, it is clear that he entered his plea without coercion. The record does not support a claim that a threat or misrepresentation by counsel or anyone else induced his plea. The record does not reflect that the plea was induced by some unkept promise. Movant has shown no ineffective assistance of counsel that rendered his plea invalid. His plea appears knowing, intelligent, and voluntary.
VI. Evidentiary Hearing
Upon review of the pleadings filed herein and the proceedings held in this Court as reflected in the court records, an evidentiary hearing appears unnecessary. The Court thus denies movant's requests for hearing. It also denies the request for appointment of counsel contained in movant's reply to the government's motion to dismiss and answer.
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DENY movant's Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255.