Opinion
Case No. 00-3017-JWL
July 5, 2000
MEMORANDUM AND ORDER
This matter is before the court on defendant James Walton's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 971). Mr. Walton alleges that he did not receive effective assistance of counsel in earlier proceedings before this court. Following a thorough review of the record, pleadings, and relevant authorities, the court concludes that Mr. Walton has failed to show that his counsel was constitutionally ineffective. Mr. Walton's motion is therefore denied.
I. Background
On July 23, 1996, pursuant to a plea agreement, Mr. Walton pled guilty to conspiracy to distribute more than 500 grams of cocaine base in violation of 21 U.S.C. § 846 (Count 1) and to conspiracy to launder money in violation of 18 U.S.C. § 1956 (a)(1)(B)(i) (Count 11). The plea agreement provided that in addition to pleading guilty to the two counts, Mr. Walton would "fully cooperate with the Government" by participating in complete debriefing, testifying in federal court as necessary, and assisting the Government in gathering evidence as deemed necessary. In exchange, the Government promised to recommend to the court a sentence at the low end of the applicable Sentencing Guideline range, and to file a motion for downward departure for substantial assistance pursuant to § 5K1.1 of the Sentencing Guidelines "[i]f, in the sole opinion of the United States Attorney's Office, the defendant's cooperation amounts to substantial cooperation."
In August, 1996, a trial was held for Mr. Walton's co-defendant Sylvester Anderson. The Government decided not to call Mr. Walton as a government witness at Mr. Anderson's trial. Mr. Walton did, however, testify at the trial on Mr. Anderson's behalf. Later, before Mr. Walton was sentenced, Mr. Walton learned that the Government was not planning on filing a motion for downward departure pursuant to § 5K1.1. On November 8, 1996, Mr. Walton filed a motion seeking to withdraw his plea of guilty or, alternatively, for specific performance of the plea agreement. The court held a hearing on the motion on December 17, 1996, at which both parties put on evidence. In a written order, the court denied Mr. Walton's motion on December 27, 1996. See United States v. Walton, No. 95-20086-01, 1996 WL 753954 (D. Kan. Dec. 27 1996). Mr. Walton appealed. On August 26, 1998, the Tenth Circuit affirmed the court's denial of Mr. Walton's motion. See United States v. Walton, No. 97-3 138, 1998 WL 544310 (10th Cir. Aug. 26, 1998). Meanwhile, the court sentenced Mr. Walton on May 7, 1997 to life imprisonment on Count 1 and 240 months on Count 11.
In Mr. Walton's current motion, he contends that he was denied effective assistance of counsel at both the trial court and appellate court levels. Mr. Walton alleges that his trial counsel, R. Bruce Kipps, was ineffective because he: (1) induced Mr. Walton to enter a plea when Mr. Walton wanted to go to trial; (2) failed to adequately advise Mr. Walton of the possible consequences of entering a guilty plea, including the possible sentencing ranges which the court could impose; (3) failed to inform Mr. Walton that testifying in favor of Mr. Anderson could decrease the likelihood that the Government would file a § 5K1. 1 motion for downward departure; and (4) advised Mr. Walton to admit guilt to a number of overt acts itemized by the Government at the plea colloquy even though Mr. Walton is innocent of some of the acts. Mr. Walton alleges that his appellate counsel, Vicki Madell-King, was ineffective because she failed to raise an issue on appeal.
Mr. Walton further alleges that Mr. Kipps was ineffective because he failed to investigate and "be familiar with the laws and facts of the case." (Doc. 974 at 6). Mr. Walton offers no evidence or explanation of this charge. "[A]llegations must be specific and particularized; condusory allegations will not suffice. . . ." Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995). See also, Candelaria v. Lemaster, 1999 WL 1243091 at *7 (10th Cir. Dec. 21, 1999) (finding "bald assertion. . . insufficient to sustain an ineffective assistance of counsel claim."). Therefore, the court refuses to provide relief on this mere allegation.
Moreover, Mr. Walton raises a number of issues in his memoranda in support of his motion which do not speak directly to his ineffective assistance of counsel claims. Even assuming that Mr. Walton is allowed to raise these new issues in his memoranda in support, the court finds them to be without merit.
First, Mr. Walton argues that plea bargains are unconstitutional because none of the provisions of Article III [of the United States Constitution] can be waived by the defendant." (Doc. 974 at 2). This argument was clearly refuted by the Supreme Court in Brady v. United States, 397 U.S. 742 (1970). In Brady, the Court held that a guilty plea is not only an admission of wrong doing, but it also is the defendant's consent to waive trial before a jury or a judge and a consent that judgement of conviction may be entered against him. Id. at 749-53. Following Supreme Court precedent, the court rejects Mr. Walton's argument that he could not constitutionally waive his right to trial.
Second, Mr. Walton notes that he informed the court at his sentencing hearing that he was innocent. (Doc. 983 at 4). The court has previously addressed this assertion and found it without merit. See Trans. of May 7, 1997 Sent. Hearing at 7-9, 10-14 (Doc. 903). Finally, Mr. Walton contends that his guilty plea was coerced and he was "threatened by the government with having his family thrown in jail if he didn't [plead guilty.]" (Doc. 974 at 7). This allegation fails because it is wholly conclusory. See Hatch, 58 F.3d at 1457. Moreover, at the plea colloquy, Mr. Walton testified that his guilty plea was freely entered: The Court: "Now, other than what's just been stated here in open court, has anyone made any sort of promise or inducement to you in order to get you to plead guilty?" Mr. Walton: "No." The Court: "Tias anyone forced or threatened you, your family, your property, your loved ones, anybody in any way in order to get you to plead guilty?" Mr. Walton: "No." The Court: "Are you telling me, then, that you're entering this plea of guilty freely and voluntarily?" Mr. Walton: "Yes." See Trans. of July 23, 1996 Plea Hearing, at 18-19 (Doc. 637). "A defendant's statements at a plea hearing should be regarded as conclusive as to the truth and accuracy in the absence of a believable, valid reason justifying a departure from the apparent truth of those statements." United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988) (internal citations omitted). Mr. Walton has presented the court with no reason to believe that his earlier statements at the plea hearing were false. Thus, the court accepts them as true and finds that Mr. Walton's plea was not the result of force or threats.
II. Timeliness of Mr. Walton's Motion
As an initial matter, the court must determine whether Mr. Walton's motion was timely filed pursuant to 28 U.S.C. § 2255. The Government argues that Mr. Walton's motion is untimely because it is filed stamped as having been received by the Clerk of Court more than one year after his conviction became final. Section 2255 states, in relevant part, that "[a] 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — (1) the date on which the judgment of conviction becomes final. . . ." 28 U.S.C. § 2255 (2000). The 10th Circuit defines "final" as the elapse of time for filing a petition for certiorari or a denial of a petition for certiorari. See United States v. Cuch, 79 F.3d 987, 991 n. 9 (10th Cir. 1996) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1996)).
Applying these rules, the court finds that the judgment against Mr. Walton became final on January 11, 1999, when his petition for writ of certiorari to the United States Supreme Court was denied. See Walton v. United States, 525 U.S. 1087 (1999). Thus, Mr. Walton had until January 11, 2000 to file a timely § 2255 motion. The court received Mr. Walton's motion on January 14, 2000. However, pursuant to the prison mailbox rule found in Houston v. Lack, the motion is not time barred. 487 U.S. 266, 275 (1988) (finding that a motion by a pro se inmate confined in an institution is timely filed when deposited in the institution's internal mail system on or before the last day to file). See also United States v. Gray, 182 F.3d 762, 765 (10th Cir. 1999) (recognizing the applicability of the prison mailbox rule to § 2255 motions). Mr. Walton's sworn affidavit states that he placed the documents in the prison legal mailbox on January 10, 2000 at 8:30 p.m. Moreover, the envelope received by the court was postmarked on January 11, 2000, making it reasonable to assume that the documents were deposited with prison officials on or before that day. Cf. United States v. Hatala, 29 F. Supp. 2 d 728 (N.D. W. Va. 1998) (finding documents were deposited to prison officials timely when the envelope received by the court was postmarked on or before the last day to file). In light of these facts, the court finds that Mr. Walton's motion was timely filed.
III. Legal Standards
The Supreme Court has set forth two components which a petitioner must meet in order to be successful on a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that his attorney's performance was constitutionally deficient. Second, the petitioner must show that his attorney's deficient performance prejudiced him in some way. Id. In evaluating this two-part inquiry, the Tenth Circuit has warned that "[riepentance born of a failed trial or sentencing strategy can often be turned against defense counsel. Such criticism is often converted into a challenge asserting inadequate assistance. Thus, the court must look for genuine — rather than perceived — ineffectiveness of counsel." Id. at 139 1-92.
Under the first Strickland prong, the petitioner must demonstrate that counsel committed "serious errors" in light of "prevailing professional norms," such that the "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The Supreme Court has advised that this prong mandates "highly deferential" judicial scrutiny of counsel's performance, recognizing that "[i]t is all too tempting for a defendant to second-guess counsel's assistance after . . . adverse sentencing, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. In light of the Srickland ruling, the Tenth Circuit has held that the petitioner attempting to prove that his counsel was deficient bears a heavy burden:
[T]he petitioner must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance that might be considered sound. . .; he must, in other words, overcome the presumption that counsel's conduct was constitutionally effective. A claim of ineffective assistance must be reviewed from the perspective of counsel at the time, and therefore may not be predicated on the distorting effects of hindsight. Finally, in reviewing ineffective assistance claims, we address not what is prudent or appropriate, but only what is constitutionally compelled.Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994) (internal citations and quotations omitted).
If the petitioner meets the first prong, then he must demonstrate that he was prejudiced by counsel's unprofessional errors. See Strickland, 466 U.S. at 688. In cases in which the petitioner has entered a plea of guilty, this requires the petitioner to show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty," and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
IV. Need for an Evidentiary Hearing
Mr. Walton contends that he is entitled to an evidentiary hearing on his § 2255 motion. (Doc. 979 at 4). Section 2255 requires the court to grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief." Hatch, 58 F.3d at 1457 (internal citations and quotations omitted). "Moreover, his allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing." Id.
As the discussion set forth below will reveal, the motions, files, and records in this case conclusively show that Mr. Walton is entitled to no relief. Accordingly, he is not entitled to a hearing.
V. Discussion
The court will address Mr. Walton's five arguments in support of his ineffective assistance of counsel motion in turn.
A. Counsel's Actions Which Allegedly Induced Mr. Walton to Enter a Guilty Pea Against his Will
Mr. Walton's first complaint against his counsel is that Mr. Kipps took a number of steps to induce Mr. Walton to enter into a plea agreement against his will. Most of Mr. Walton's allegations in support of his argument, however, are wholly conclusory and not subject to consideration by the court. See Hatch, 58 F.3d at 1457 (finding that "allegations must be specific and particularized; conclusory allegations will not suffice. . . ."); Candelaria, 1999 WL 1243091 at *7 (finding "bald assertion . . . insufficient to sustain an ineffective assistance of counsel claim."). For example, Mr. Walton alleges that "trial counsel induced [a] plea based on. . . [an] ambiguous plea agreement," (Doc. 971)., but Mr. Walton does not explain in what way the plea agreement was ambiguous nor how it influenced his decision to plead guilty. Mr. Walton also makes the claim that Mr. Kipps lied to him by misrepresenting the plea agreement, but Mr. Walton does not discuss the manner in which the plea agreement was misrepresented nor how the agreement as misrepresented led him to plead guilty. When these conclusory allegations are set aside, two steps allegedly taken by Mr. Kipps remain for the court's evaluation.
Two additional statements made by Mr. Walton in support, (1) that counsel gave erroneous legal advice and (2) that counsel coerced Mr. Walton into pleading, are conclusory on their face, but may nonetheless fall under one or more of Mr. Walton's more specific arguments addressed by the court below.
First, Mr. Kipps "threatened" Mr. Walton by telling him, "if you go to trial and lose it is a life sentence." (Doc. 983 at 3). Applying the Strickland analysis, the court fails to see (and Mr. Walton does not explain) how this advice is deficient. It is certainly reasonable for an attorney to present his criminal client with information, such as the likely sentence upon conviction, to weigh in determining whether to plead or go to trial. See, e.g., United States v. Hardesty, No. 96-3510, 1997 WE 815381 (D. Kan. Dec. 19, 1997) ("[Counsel] exercised the skill, judgment, and diligence of a highly competent defense attorney to advise Mr. Hardesty that Mr. Hardesty faced a likely conviction at trial based on the government's evidence . . . especially in light of the substantial prison time Mr. Hardesty faced if he had been convicted on all counts at trial."). Thus, this statement does not demonstrate that Mr. Walton's counsel was constitutionally ineffective.
Moreover, Mr. Kipps' prediction appears accurate. As the court has previously stated, "the weight of the evidence that the government had against [Mr. Walton] if he had gone to trial" presented an "overwhelming likelihood that he would be convicted and incur a lengthy sentence." Walton, 1996 WE 753954, at *1.
The second step taken by Mr. Kipps which allegedly induced Mr. Walton to enter a plea against his will was that of informing Mr. Walton that if Mr. Walton decided to go to trial, Mr. Kipps would seek to withdraw from the case. Mr. Walton does not propose how he was prejudiced by this statement. Mr. Walton does not assert, for example, that he feared a new attorney would be unable to adequately prepare for trial upon entering the case at a late date. Moreover, Mr. Walton informed the court at the plea colloquy that he was "fully satisfied with the counsel, representation, and advice" given to him by Mr. Kipps. See Trans. of July 23, 1996 Plea Hearing, at 6 (Doc. 637). Because the record shows that Mr. Walton was not prejudiced by Mr. Kipps' statement, Mr. Walton has failed to meet the second prong of the Strickland analysis. Mr. Walton's ineffective assistance of counsel claim on this ground fails.
B. Counsel's Alleged Prediction of Mr. Walton's Sentence upon the Entry of a Guilty Plea
Next, Mr. Walton claims that Mr. Kipps was ineffective because he inaccurately told Mr. Walton that "if he accepted the plea bargain he would only receive 17~ years [in prison]." (Doc. 974 at 3). In fact, the court sentenced Mr. Walton to life imprisonment and 240 months, to be served concurrently, based on Mr. Walton's guilty pleas to Counts 1 and 11 in the indictment. Mr. Walton now argues that, had he "been fully advised of the likely sentencing ranges under the plea bargain," he would not have plead guilty. (Doc. 979 at 3). Therefore, Mr. Walton claims, he was prejudiced by his counsel's inaccurate sentence estimation.
Mr. Walton's argument fails for a number of reasons. First, when his counsel's sentence estimation is examined in the context in which it was made, it is clear that Mr. Kipps informed Mr. Walton that he would likely be sentenced to 17 years if the Government moved for a 5K1.l downward departure. In the memorandum attached to his motion, Mr. Walton explains that Mr. Kipps advised him that if he "went with whatever the government said" at the plea hearing, it would "contribute to a substantial assistance reduction motion pursuant to 5K1 of the sentencing guidelines," such that, "if petitioner go along [sic] with the government, after sentencing, petitioner would receive no more or no less than (17) years imprisonment." (Doc. 971 at 8). At the plea colloquy, the court carefully questioned Mr. Walton to ensure that he understood the discretionary nature of a § 5K1. 1 departure. Mr. Walton assured the court that he did. See Trans. of July 23, 1996 Plea Hearing, at 17-18 (Doc. 637). A defendant's statements at a plea colloquy are regarded as conclusive. See Estrada, 849 F.2d at 1306. Thus, the court finds that Mr. Walton understood the conditional nature of his counsel's sentence prediction.
The court's questions at the plea colloquy were as follows: The Court: "Now let me explain to you a couple of things. First of all, Ms. Fowler referenced the potential for the Government making a motion to ask the Court to depart beneath the mandatory minimum by statute and beneath the guideline range by a 5K1.1 motion if, in fact, certain conditions are met. I want you to understand that that is a matter that the Court has no power to compel the Government to do. That is a matter that you have to satisfy the Government that you have provided substantial assistance, and it's up to the Government to decide whether or not they're going to bring such a motion before the Court. Do you understand that?" Mr. Walton: "Yes." The Court: "So that if — even if you think you've provided substantial assistance and the Government doesn't, you can't come to the Court and file a motion and ask the judge to give you some relief at that particular point in time. That's a matter between you and Government counsel. Do you understand that?" Mr. Walton: "Yes." Trans. of July 23, 1996 Plea Hearing, at 17-18 (Doc. 637).
In any event, the court finds that Mr. Walton has failed to meet both prongs of the Strickland test for ineffective assistance of counsel. First, "[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel." United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). See also Estrada, 849 F.2d 1304 (counsel's assurances that defendant would not receive "much of a sentence," where defendant was actually sentenced to a term of 12 years in prison, did not rise to the level of constitutionally deficient counsel); Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970) (guilty plea was voluntary even though counsel informed defendant that he would "get 25 years" and defendant was actually sentenced to 100 years). Second, even assuming that Mr. Kipps' performance was deficient, Mr. Walton has failed to establish that he suffered prejudice as a result because he did not rely on Mr. Kipps' advice when he accepted the plea. At the plea colloquy, the court explained the sentencing range imposed by the United States Sentencing Guidelines and asked Mr. Walton, "has anyone made any sort of promise or inducement to you in order to get you to plead guilty?" Mr. Walton answered, "No." Trans. of July 23, 1996 Plea Hearing, at 10-11, 18 (Doc. 637). The Tenth Circuit has held that a defendant's statement "in open court during his plea colloquy that he was not relying on any promises or predictions of a possible sentence made to him prior to his plea" demonstrates that the defendant did not rely on his counsel's sentence prediction to his prejudice. Cunningham v. Diesslin, 92 F.3d 1054, 1062 (10th Cir. 1996); see also, Gordon, 4 F.3d at 1571. For all of these reasons, the court denies Mr. Walton's motion to vacate, set aside, or correct his sentence pursuant to his counsel's advice regarding sentencing.
C. Counsel's Alleged Failure to Inform Mr. Walton of the Adverse Affect that Testifying for a Co-Defendant Could Have on the Government's Decision to File a § 5K1.1 Motion for Downward Departure
Mr. Walton next alleges that Mr. Kipps was ineffective by failing to inform him that if he testified on behalf of Mr. Anderson, the Government could find Mr. Walton lacking in credibility and ultimately decide not to file a § SKl.l motion for downward departure. In their discussion of the possible effects that testifying could have on the Government's decision to request a departure, Mr. Kipps opined that if Mr. Walton told the truth, "the plea bargain would hold." (Doc. 974 at 4). Thereupon, Mr. Walton decided to testify. At sentencing, however, the Government did not seek a downward departure for substantial assistance.
The court has previously found that "the government did not decline to file the 5K1. 1 motion in retaliation for Mr. Walton's testimony on behalf of Mr. Anderson," but rather, based its decision in part on its opinion that Mr. Walton was "totally compromised as an effective witness" by giving what it believed was false testimony. See Walton, 1996 WL 753954, at *l-2; affirmed, Walton, 1998 WL 544310.
After examining Mr. Kipps' advice in light of the strong presumption that it falls within the wide range of reasonable professional assistance, the court concludes that Mr. Walton has failed to demonstrate that Mr. Kipps was constitutionally deficient. While other competent attorneys may have advised their client not to testify in such a situation, reasonable minds may differ. The court is mindful that the standard in addressing an ineffective assistance of counsel claim is not whether counsel's assistance was "prudent or appropriate," Brecheen, 41 F.3d at 1365, but rather, whether counsel's assistance was "completely unreasonable," Hatch, 58 F.3d at 1459.
Here, Mr. Kipps opined that if Mr. Walton told the truth when testifying, it would not affect his chances of receiving a departure. This advice was reasonable, especially when one considers that Assistant United Sates Attorney Leon Patton, when confronted with the possibility of Mr. Walton testifying on Mr. Anderson's behalf, never told [Mr. Walton] that he shouldn't testify." See Trans. of Dec. 17, 1996 Hearing, testimony of Leon Patton at 125 (Doc. 805). Rather, Mr. Patton "told him he'd better testify truthful. . . that's all we wanted out of him." See id. Mr. Kipps, then, was reasonable in advising Mr. Walton to give the Government what they "wanted out of him," i.e., truthful testimony. Additionally, as Mr. Walton himself concedes, Mr. Walton had previously told the Government all the information that he knew about Mr. Anderson at government debriefings. Thus, if Mr. Walton were to testify truthfully, it would be unlikely that the Government would learn anything new from the testimony which would change its opinion of Mr. Walton's credibility. As it turned out, the Government determined that Mr. Walton's testimony was false and internally inconsistent (Mr. Walton would testify to one thing, and then, minutes later, testify as to the opposite thing), as well as inconsistent with his past statements in debriefings. These inconsistencies influenced the Government's ultimate decision not to seek a 5K1.l departure. See Walton, 1996 WE 753954 at *1. See also, Govt's supplement to response opposing motion to withdraw or for specific performance (Doc. 726). However, the court must evaluate Mr. Kipps' assistance "at the time," and cannot predicate its finding "on the distorting effects of hindsight." The court finds Mr. Kipps' advice, given in light of the facts known to him at the time, to be reasonable. Mr. Walton's § 2255 motion is denied as to this ground.
D. Counsel's Advice that Mr. Walton Admit Guilt to a Number of Overt Acts Itemized by the Government at the Plea Colloquy
The fourth ground alleged by Mr. Walton to show that he received ineffective assistance of counsel is that Mr. Kipps advised him to plead guilty to a number of overt acts itemized by the Government at the plea colloquy, despite Mr. Kipps' knowledge that Mr. Walton maintained his innocence as to some of those acts. Mr. Walton asserts that when he questioned Mr. Kipps during the Government's recitation of these acts, Mr. Kipps informed him that the recitation was a "mere formality." (Doc. 983 at 4). The court has previously examined Mr. Walton's alleged mistaken admittance of guilt as to certain overt acts when it considered Mr. Walton's motion to withdraw his guilty plea or, in the alternative, for specific performance of the plea agreement (Doc. 713). In connection with Mr. Walton's previously filed motion, Mr. Kipps submitted an affidavit admitting that "Defense counsel erred in allowing the Defendant to enter a plea to a laundry list of alleged overt acts when the Defendant had denied particular overt acts." See Def. Exh. 400, admitted at Dec. 17, 1996 Hearing. Without addressing the issue of whether Mr. Kipps' error amounted to constitutionally deficient advice, the court finds that Mr. Walton's ineffective assistance of counsel claim must fail because Mr. Walton has failed to meet the prejudice prong of the Strickland analysis.
Mr. Walton does not allege that he received a harsher sentence as a result of his inadvertent admission of guilt to the overt acts. Rather, he alleges that he was prejudiced because admission of the overt acts conflicted with his testimony at Mr. Anderson's trial, thereby leading the government to question his credibility and ultimately decide not to file a § 5K1.1 motion for downward departure. A careful examination of the record in this case, however, demonstrates that the Government's determination that Mr. Walton lacked credibility was premised on much more than his admission of the overt acts. See Walton, 1998 WL 544310, at *4 As the Tenth Circuit held,
The record. . . supports the. ., finding that the Government reasonably believed Walton testified falsely at Anderson's trial. . . . In addition to containing inconsistencies with evidence provided by other witnesses, Walton's testimony at Anderson's trial was inconsistent in several respects with Walton's own previous statements made in his debriefings and with his admission in his plea colloquy.Id. When confronted with Mr. Walton's argument that he "mistakenly admitted guilt as to certain of the overt acts of the charged conspiracy at his plea colloquy," the Circuit stated "the Government's contention that Walton did not present consistent, reliable testimony was not confined to the inconsistencies between his trial testimony and his admissions during the plea colloquy." Id. at n. 5. The Circuit then went on to discuss the internal inconsistencies in Mr. Walton's testimony and an inconsistency between his testimony and his debriefing. See. Id; see also Govt's supplement to response opposing motion to withdraw or for specific performance (Doc. 726) (citing to the record and listing seven "examples of Walton's inability or unwillingness to testify truthfully," only one of which was an inconsistency between his testimony and plea colloquy.) After examining the record, the court is convinced that the Government would have found Mr. Walton lacking in credibility even if he had refused to admit guilt as to some of the overt acts attributed to him at the plea colloquy. Therefore, Mr. Walton was not prejudiced by Mr. Kipps' advice "not to disagree with anything the Government stated in the plea colloquy." (Doc. 971 at 8). Finding no prejudice, the court denies Mr. Walton's motion as it relates to this ground.
E. Counsel's Failure to Raise an Issue on Appeal
Finally, Mr. Walton asserts that the attorney representing him at his appeal of the court's denial of his motion to compel the filing of a downward departure or for withdrawal of his guilty plea, Vicki Madell-King, "was constitutionally ineffective by failing to challenge the government's first explanation of not calling petitioner to testify in Anderson's trial, [i.e., that] "the evidence was coming in well."' (Doc. 971 at 9). Mr. Walton, however, asserts no prejudice arising from Ms. Madell-King's allegedly inadequate performance. Although Mr. Walton states that "Prejudice that petitioner suffered from these unprofessional errors of counsel is that counsel allowed the government to change its reasons for not filing a downward departure motion to the fact that it did not believe petitioner was credible. . . ." (Doc 971 at 10), the court finds that this statement only further explains why Mr. Walton believes that his counsel was deficient; it does not describe any harm he suffered from the Government's so called "change of reason." Because Mr. Walton has alleged no prejudice from his counsel's failure to raise this issue on appeal, the court concludes that Mr. Walton has again failed to demonstrate ineffective assistance of counsel.
Construing Mr. Walton's pleadmg liberally, the court believes that Mr. Walton is referring to the Government's statement in its response to Mr. Walton's motion to withdraw his guilty plea or for specific performance that, "During the course of the trial . . . it was decided that the evidence was coming in very well and Walton's testimony would not be necessary." (Doc. 724 at 4).
In deed, the court can conceive of no possible prejudice which was suffered by Mr. Walton based on this changed reason. Even if counsel had asserted, and the court had found, that the sole reason that Mr. Walton was not called by the Government to testify at Mr. Anderson's trial was that the Government believed that it did not need his testimony to be successful, Mr. Walton would not have been able to demonstrate that the Government's decision not to seek a § 5K1.l departure was in bad faith. As discussed in the court's Memorandum and Order denying Mr. Walton's motion, Walton, 1996 WE 753954, at * 3, the courts will generally only find the Government's decision not to recommend a § 5K1.l departure to be in bad faith when it is based on an unconstitutional motive, such as the defendant's religion or race. See also United States v. Hawley, 93 F.3d 682, 691 (10th Cir. 1996) ("Absent an unconstitutional motive for refusing to do so, the prosecution enjoys complete discretion in determining whether to file a substantial assistance motion.") (internal citations and quotations omitted). Making a tactical decision that a witness' testimony is not needed at trial does not constitute an unconstitutional motive. Moreover, the Tenth Circuit noted that Mr. Walton's willingness to testify for the government "does not automatically qualify him for a reduction based on substantial assistance. Cf. United States v. Courtois, 131 F.3d 937, 939 (10th Cir. 1997) (holding that in absence of specific language in plea agreement to the contrary, government was not required to give defendant the opportunity to provide substantial assistance)." Walton, 1998 WL 544310, at *3 n. 4.
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Walton's
motion to vacate, set aside, or correct his sentence (Doc. 971) is denied.
IT IS SO ORDERED.