Opinion
CIVIL ACTION NO. 3:02-CV-2078-G, CRIMINAL ACTION NO. 3:01-CR-139-G
July 28, 2003
MEMORANDUM ORDER
Before the court is the motion of the petitioner Walter Wayne McMillen ("McMillen") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. After considering the motion, the response of the United States of America, and the record, the court concludes that the § 2255 motion should be denied. See Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.").
I. BACKGROUND
McMillen was charged in a six count indictment with various firearms and drug trafficking offenses. Following McMillen's plea of not guilty, the case was called for trial. Jury selection began on October 9, 2001 and consumed virtually the entire day. On the morning of October 10, both sides presented opening statements. Before calling witnesses, however, counsel asked for a bench conference, at which they requested a brief recess to explore the possibility of a plea agreement. The court granted the joint request.
During the recess, McMillen agreed with the government to plead guilty to violations of 18 U.S.C. § 922(g)(1) and 924(c) in exchange for a Rule 11(c)(1)(C) agreement that he be sentenced to 264 months imprisonment. Upon completion of the plea documentation, McMillen was placed under oath and a plea colloquy was conducted as required by Rule 11, F.R.CRIM.P. The court accepted — and ordered filed — a written plea agreement and factual resume signed by the parties. Sentencing was deferred to January 8, 2002 so that a presentence report could be prepared.
On November 2, 2001 McMillen filed a motion to withdraw his plea on the grounds that his plea was involuntary because of (1) insufficient time to weigh his plea options and (2) misconduct on the part of counsel for the United States. The United States submitted a response opposing the motion on November 8, 2001. The court denied the motion by memorandum order of November 16, 2001, finding that "the Rule 11 colloquy established, without a doubt, that McMillen's plea was knowing and voluntary." Memorandum Order, November 16, 2001, at 5.
Actually, the issue of plea withdrawal first came to the court's attention through a letter McMillen wrote to the court on October 16, 2001 (referred to in the motion to withdraw guilty plea filed November 2, 2001). Because McMillen was represented by counsel, the court referred the letter to McMillen's counsel for whatever action counsel deemed appropriate.
McMillen was sentenced on January 8, 2002 to a term of imprisonment of 264 months, which had been agreed upon by the parties pursuant to F.R. CRIM. P. 11(c)(1)(C). McMillen did not appeal his conviction or sentence, but he filed this motion on September 25, 2002.
Although the term of imprisonment was agreed upon as part of the plea agreement, McMillen almost immediately regretted that decision. See Letter from Emma C. Baulch to Hon. A. Joe Fish dated November 4, 2001, attached to Memorandum in Support of 2255 Relief as Exhibit 31 ("Upon reflection, he regrets his decision made under such duress. He is 44 years old and a sentence of 22 years will take away the rest of his life."); Letter from Sam L. Ogan, Esq. to Walter W. McMillen dated December 17, 2001, attached to Memorandum in Support of 2255 Relief as Exhibit 34 ("I know you now want out of the deal, but I do not know how to help you do that. You say that you only had a minute to decide whether to plead, but you were the one who asked for a deal. . . . You had lots of time to decide whether you wanted to plead, and you did. You can't just switch back and forth.").
II. GROUNDS OF THE MOTION
McMillen asserts thirteen grounds in support of his motion: (1) he received ineffective assistance of counsel, and was denied due process of law, at his detention hearing on May 7, 2001; (2) he received ineffective assistance of counsel, and was denied due process and equal protection, during the pretrial discovery phase of the case; (3) he received ineffective assistance of counsel, and was denied due process and equal protection, in the preparation, filing, and conduct of his motion to suppress evidence; (4) he received ineffective assistance of counsel before, during, and after he made a request for substitute counsel and a request to proceed pro se; (5) his plea of guilty was unlawfully induced, was not voluntary or intelligent, and was the result of duress and coercion; (6) he received ineffective assistance of counsel when counsel failed to pursue the Acting Under Public Authority defense; (7) he received ineffective assistance of counsel on direct appeal; (8) he received ineffective assistance of counsel at the plea proceedings; (9) he received ineffective assistance of counsel at the sentencing phase of the case; (10) he was denied his constitutional right to due process by the court's failure to hold a Faretta hearing; (11) he was denied his right to appeal; (12) the indictment was defective because it was based on perjured testimony; and (13) he was grossly denied the effective assistance of counsel throughout the entire proceedings from the first day to the last.
III. STANDARD OF REVIEW
After conviction and exhaustion or waiver of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.3d 228, 231-32 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992). A defendant can challenge his conviction or sentence after it is presumed final only on issues of constitutional magnitude, and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232. Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for transgressions of constitutional rights and other narrow injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). In other words, a writ of habeas corpus will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974); Sunal v. Large, 332 U.S. 174, 178 (1947).
IV. ANALYSIS A. Waiver of § 2255 Relief
The plea agreement signed by the defendant on October 10, 2001 contained the following provision:
WAIVER OF RIGHT TO APPEAL SENTENCE
11. Except as otherwise provided, the defendant hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum, (b) punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court, and (c) ineffectiveness of counsel.
Plea Agreement, filed October 10, 2001 at 5 (emphasis added).
In United States v. White, 307 F.3d 336, 343 (5th Cir. 2002), the Fifth Circuit "that an ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself." To apply that standard, the court said,
We ask whether the plea or waiver itself was knowing and voluntary, and whether the issue challenged on appeal may properly be the subject of waiver. If the answer to both questions is "yes," then the guilty plea sustains the conviction and sentence and the waiver can be enforced.White, 307 F.3d at 343-44 (footnote omitted). A contrary rule, observed the court, "would render waivers of appeal meaningless," for
If all ineffective assistance of counsel claims were immune from waiver, any complaint about the process could be brought in a collateral attack by merely challenging the attorney's failure to achieve the desired result. A knowing and intelligent waiver should not be so easily evaded.Id. at 344.
Here, the court has already determined, in the memorandum order of November 16, 2001, see p. 3 above, that "the Rule 11 colloquy established, without a doubt, that McMillen's plea was knowing and voluntary." Nothing in McMillen's motion or supporting papers has cast any doubt on this conclusion. Accordingly, under White, McMillen's agreement "not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255," is enforceable and bars relief on this motion.
In the alternative, the court has considered McMillen's motion on the merits and concludes it should be denied for the following reasons.
B. Representation of Counsel
The Supreme Court has erected a "cause and actual prejudice" hurdle that a prisoner must overcome when seeking collateral relief under 28 U.S.C. § 2255. Frady, 456 U.S. at 167-68. As recognized in Shaid, the Fifth Circuit has applied that standard consistently:
The Supreme Court has emphasized repeatedly that a "collateral challenge may not do service for an appeal." Frady, 456 U.S. at 165, 102 S.Ct. at 1593. After conviction and exhaustion or waiver of any right to appeal, "we are entitled to presume that [the defendant] stands fairly and finally convicted." Id. at 164, 102 S.Ct. at 1592. A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and may not raise an issue for the first time on collateral review without showing both " cause" for his procedural default, and " actual prejudice" resulting from the error. Frady, 456 U.S. at 168, 102 S.Ct. at 1594.Id. at 231-32 (emphasis added and footnote omitted).
Although ineffective assistance of counsel claims are not usually expected to be raised on direct appeal, that is not the end of the inquiry. In order to establish ineffective assistance, McMillen must show both cause — a serious professional error by his lawyer — and prejudice — some harm resulting from the error. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989). As for cause, the court must determine whether counsel's performance was reasonable considering all of the circumstances at the time. Strickland, 466 U.S. at 688-90. The court must further "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy'" Id. at 689 (citation omitted).
When a prisoner challenges a guilty 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, 59 (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. Moreover, in non-capital cases, to establish prejudice, the prisoner must show there is a reasonable probability that absent counsel's errors, the defendant's sentence would have been significantly less harsh. United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. In reviewing an ineffective assistance claim, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697.
Although courts must construe § 2255 petitions liberally, "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993), quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989). It has long been the law and practice of this circuit that if a petitioner fails to properly raise a claim, including sufficient factual allegations or proof, the district court may properly deny and dismiss the petition. United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945 (1980); Iacovetti v. United States, 534 F.2d 1189, 1190 (5th Cir. 1976). A petitioner is not entitled to a hearing by the simple expedient of filing a petition; the court may reject claims as frivolous or not recognize the petitioner's right to a hearing based upon unsupported generalizations. United States v. Guerra, 588 F.2d 519, 520-521 (5th Cir. 1979).
With those standards in mind, the court will address in turn each of McMillen's ineffective assistance claims. Viewing the facts of this case, in light of the above legal standards, shows that McMillen is entitled to no relief.
1. Ground One: Claim of ineffective assistance of counsel in relation to McMillen's detention hearing.
McMillen claims that he was denied the effective assistance of counsel and due process of law at his detention hearing held on May 7, 2001. In support, he alleges that his attorney, Sam Ogan ("Ogan"), failed to argue that McMillen was out on a state bond at the time of his arrest, somehow warranting his release on the federal charges. This assertion is completely incorrect in light of the record. During the detention hearing, Ogan made the following proffer on McMillen's behalf:
I've spoken with the Defendant. He's indicated to me that he has never had a bond forfeiture or a bond surrender. He has also indicated that he was on bond at the time that he was arrested on this offense. I believe he was charged with the drugs that are mentioned in Count 1 of this charge. He had made a $25,000 State bond, and had $800 down that had been reported on that bond at the time of his arrest on the Federal charges.See Detention Hearing Transcript ("Detention"), attached to United States Response to McMillen's Motion Under 28 U.S.C. § 2255 ("Response") as Exhibit K, at 3. Furthermore, Ogan went on to argue that McMillen's state bond was a factor justifying his release. Id. at 6; Ogan Affidavit, attached to Response as Exhibit B, at 2. Accordingly, McMillen is incorrect in asserting that his attorney did not advise the court of his state bond at the detention hearing.
McMillen goes on to claim that his attorney failed to mention the "public authority" defense at his detention hearing. As discussed below in Grounds Six and Nine, there is no evidence in the record to support this defense. Indeed, Ogan makes it clear in his affidavit that McMillen did not even mention the "public authority" defense at the time of the detention hearing. Id. at 2. Instead, McMillen was claiming at that time that he did not sell the drugs at issue. Id. at 3. At all events, any such assertion at the detention hearing would not have changed the result.
Finally, McMillen's detention hearing challenge must fail because even if it is assumed that an error occurred, McMillen cannot show how any such error affected the outcome of this case. See United States v. Weaver, 882 F.2d 1128, 1139 (7th Cir.) (rejecting defendant's ineffective assistance claim that his attorney failed to call witnesses at his detention hearing where the defendant did not specify how his pretrial release would have changed the result of his trial), cert. denied, 493 U.S. 968 (1989).
2. Grounds Two and Twelve: Claim of ineffective assistance of counsel in relation to the discovery portion of this case.
McMillen claims that he was denied the effective assistance of counsel, due process, and equal protection of the law during the discovery portion of his case. In support, he insists that Ogan failed to obtain information regarding the informant, Chad Hunter ("Hunter"), and the controlled purchase that occurred on December 5, 2000. He also asserts that Special Agent Todd Nunley provided perjured testimony to the grand jury when he testified about the December 5, 2000 controlled buy. McMillen alleges that this testimony causes a jurisdictional defect in the indictment.
All of these claims are wholly without merit. As indicated by Ogan's affidavit, counsel for the government followed an "open file" discovery policy in this case, providing all discovery in accordance with established federal rules and precedent. Ogan Affidavit at 3. Ogan also filed detailed discovery requests, including a motion for discovery and inspection, a motion for Brady and Giglio material, and a request under Rule 404(b) to learn the government's intention of introducing evidence of other crimes, wrongs, or acts. See Discovery Motions, attached to Response as Exhibit L. Although McMillen maintains that these were "boilerplate and superficial motions for discovery," Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody ("Motion") at 5, a review of these materials shows that Ogan made thorough and complete discovery requests, leaving no stone unturned on McMillen's behalf.
Despite his attorney's discovery efforts, McMillen still alleges that he received ineffective assistance of counsel based on his attorney's failure to obtain "informant files" on Hunter and evidence showing that the December 5, 2000 controlled buy was a sham. Counsel for the government initially protected Hunter's identity as an informer in accordance with Roviaro v. United States, 353 U.S. 53 (1957). The government later decided to call Hunter as a witness and at that point supplemented its witness list with Hunter's name. See United States' Second Amended Witness List, attached to Response as Exhibit M, at 2. Counsel for the government also provided the defense with Hunter's home telephone number during the week prior to trial. See Response at 18. Furthermore, in accordance with the government's open file policy, the defense received all offense reports related to the December 5, 2000 incident well before trial.
Notwithstanding these efforts, McMillen still contends that he received ineffective assistance of counsel during the discovery process. He claims that Ogan could have uncovered some evidence that the controlled buy did not occur on December 5, 2000. However, he does not identify any such evidence. All of the reports provided to defense counsel set forth the details underlying the controlled buy. Furthermore, Detective Tom Jones of the Dallas Police Department confirmed at the suppression hearing that Hunter, the confidential informant, made the undercover purchase on December 5, 2000. Transcript of Hearing on Motion to Suppress ("Suppression Hearing"), attached to Response as Exhibit A, at 6, 30-31. The search warrant affidavit itself also expressly references the undercover purchase. See December 5, 2000 Search Warrant Affidavit ("Search Warrant Affidavit"), attached to Response as Exhibit N. Because McMillen points to no evidence in the record even remotely supporting his contention that the December 5, 2000 drug transaction was a sham, his ineffective assistance and constitutional challenges fail. See United States v. Flores, 135 F.3d 1000, 1006-07 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (stating that "without a specific, affirmative showing of what the missing evidence or testimony would have been, "a habeas court cannot even begin to apply Stickland's standards' because "it is very difficult to assess whether counsel's performance was deficient, and nearly impossible to determine whether the petitioner was prejudiced by any deficiencies in counsel's performance"') (citation omitted).
Finally, McMillen's claim that his attorney was ineffective for not attacking the indictment also fails. McMillen asserts no constitutional challenge to the indictment, but instead urges that it was based on false information. As set forth above, there was no legitimate basis for McMillen's attorney to challenge the December 5, 2000 controlled purchase. Furthermore, Ogan correctly concluded that filing a motion to dismiss was not necessary because was no defect in the indictment. Ogan Affidavit at 4, 6. Accordingly, a challenge to the indictment simply would not have succeeded. Without a showing of prejudice, McMillen cannot establish that his trial counsel rendered ineffective assistance.
3. Ground Three: Claim of ineffective assistance of counsel in relation to the motion to suppress.
McMillen next alleges that he was denied the effective assistance of counsel, due process, and equal protection of the law in relation to the preparing, filing, and arguing of his motion to suppress. In support, he claims that his attorney should have challenged the validity of the search warrant and requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978). He further alleges that a Franks hearing would have allowed him to test the validity of the search warrant affidavit.
McMillen's claim essentially boils down to an assertion that the search warrant affidavit contains false statements deliberately or recklessly made, namely the officer's representation about information obtained from the controlled buy on December 5, 2000. As Ogan knew before he filed the motion to suppress, a hearing is granted under these circumstances only if McMillen was able to make a " substantial preliminary showing" that:
(1) the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in the affidavit; and
(2) the remaining portion of the affidavit is insufficient to support a finding of probable cause.Franks, 438 U.S. at 155-56.
Because the evidence did not support a claim that the warrant was somehow invalid, Ogan instead decided to argue that the officers had exceeded the scope of the search warrant by seizing the firearm and ammunition. Ogan Affidavit at 3-4. Overall, the evidence in the record establishes that Ogan pursued a reasonable strategy in challenging the search at issue. Furthermore, as recognized in Ogan's affidavit, he did not have a good faith basis to allege that there was not an informant and that no controlled buy occurred on December 5, 2000. Id. at 4. Under these circumstances, Ogan's decision to not file a frivolous suppression motion cannot rise to the level of ineffective assistance of counsel. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) ("Gibson's contention that trial counsel's failure to file a motion to suppress evidence based on a faulty search warrant constitutes ineffective assistance of counsel is without merit. Counsel is not required by the Sixth Amendment to file meritless motions.").
4. Ground Four: Claim of ineffective assistance of counsel before, during, and after McMillen made a request for new counsel.
McMillen claims that he was denied the effective assistance of counsel before, during, and after he made a request for substitute counsel. In support, McMillen rehashes his prior arguments that Ogan mishandled the suppression hearing, resulting in irreconcilable differences between them, which — according to McMillen — should have resulted in Ogan being dismissed from the case.
Since the suppression hearing and controlled buy agreements have been addressed above, the court will focus on McMillen's claim that he received ineffective assistance of counsel because Ogan was not replaced as his attorney. Contrary to McMillen's assertions, the right to counsel of choice is neither absolute nor unqualified. Wheat v. United States, 486 U.S. 153, 159 (1988) (commenting that the appropriate inquiry in Sixth Amendment analysis is not the accused's relationship with his lawyer but instead focuses on the adversarial process underlying the proceedings). This circuit follows the rule that a reviewing court should consider whether the trial court's refusal to permit counsel of choice constitutes an abuse of discretion. United States v. Wild, 92 F.3d 304, 307 (5th Cir.), cert. denied, 519 U.S. 1018 (1996).
In Wild, the defendant, Wild, wanted to withdraw his guilty plea following his rearraignment. Id. at 306. The defense attorney disagreed with Wild's decision and filed a motion to withdraw as counsel. Id. The district court conducted a hearing, during which it denied the motion to withdraw and rejected Wild's plea agreement. Id. Wild proceeded to trial with the same attorney and was convicted on fifteen counts of mail and wire fraud. Id. On appeal, Wild claimed that the district court erred when it failed to have new counsel appointed for his case. In support, he pointed to his attorney's motion to withdraw that made a vague reference to a problem by stating that Wild insisted upon pursuing an objective the attorney and his firm considered imprudent. Id. at 307. Wild contended that this statement illustrated a conflict of interest that should have been resolved. Id.
In assessing this claim, the Fifth Circuit began by recognizing that a trial court had the discretion to require specific reasons before granting a motion to withdraw. Id. The court relied upon the principle announced by the Seventh Circuit in United States v. Cole, 988 F.2d 681, 683 (7th Cir. 1993), that "unless there is a demonstrated conflict of interests or counsel and defendant are embroiled in an irreconcilable conflict that is so great that it resulted in a total lack of communication preventing an adequate defense, there is no abuse of discretion in denying a motion to withdraw." Id. Under this standard, the court rejected Wild's claim because he did not assert that he and Williams suffered an absolute breakdown in communications. Id. The court noted that Wild failed to point out how his attorney's representation lapsed in any particular way. Id. Furthermore, no evidence was presented that denial of the motion to withdraw jeopardized the judicial process. Id. Accordingly, the court found that the district court did not abuse its discretion in denying the motion to withdraw. Id.
Like the situation addressed by the Fifth Circuit in Wild, McMillen has not presented one piece of credible evidence to show that Ogan's representation was somehow deficient. To the contrary, the overall record shows that Ogan vigorously and competently defended McMillen. Ogan's affidavit indicates that although Ogan and McMillen did not get along, Ogan remained on the case after the court denied McMillen's requests for new counsel. Ogan Affidavit at 4-4a. Ogan also informed McMillen that he seriously doubted the officers would come into court and claim that they lied in this case, but he promised to vigorously cross examine the officers on McMillen's behalf. Id. at 4a. Under the circumstances, McMillen could not have realistically expected anything else from his attorney.
Ogan's affidavit contains an unnumbered page between page number 4 and page number 5. The page referred to here as 4a is that unnumbered page.
In addition, McMillen's own admissions around the time of his guilty plea completely discredit his position. First, in his October 16, 2001 letter to the court, McMillen stated that "Mr. Ogan's opening statement truely [sic] impressed me, and at that point I would have been happy to have him represent me in the trial." Letter from Walter Wayne McMillen to Hon. A. Joe Fish dated October 16, 2001 ("October 16 Letter"), attached to Response as Exhibit F, at 1. In addition, Ogan provided a copy of the first page of a letter he received from McMillen on October 15, 2001. In this letter, McMillen made the following statements regarding the legal representation he had received from Ogan:
I want to thank you for the Great Performance and openning [sic] statement you gave to the jury, I will never for get [sic] the look on Mr. Gills [sic] face.
I am truely [sic] sorry for my attitude I have had. Rest asure [sic] no one could say a bad word about you to me. Every one especially those who have you as their attorney were waiting for me when I return [sic] from court.
I told them and even showed them with a pack of Sweet Low how you performed and I took back any bad mouth statements I had made about you before and let them know that I was wrong. Sam Ogan is a Trial Lawyer and the best I have ever seen!
I do not believe Chad Hunter or Nunley could have stood up true [sic] with you cross examining them. I will 4/ever wonder how trial would have came out. True they hit me with 6 counts and I trust your judgment. You got the life sentence. . . .
Ogan Affidavit at 5 and page one of letter attached to Ogan Affidavit as Exhibit A (emphasis in original). These statements illustrate that McMillen was completely satisfied with the legal representation he received from Ogan. McMillen's own admissions show that he received effective assistance of counsel after the court denied his motion for new counsel. Accordingly, this claim is denied.
5. Grounds Five and Eight: Claims that McMillen's plea was not knowing or voluntary and that he received ineffective assistance of counsel at the plea proceedings.In both of these grounds, McMillen takes a shotgun approach in claiming that he did not enter a knowing and voluntary plea of guilty. In a nutshell, he asserts that on the day of his rearraignment, his counsel had been so ineffective that "he was in a state of despair." Motion at 6c. McMillen alleges that he did not knowingly waive his constitutional and appellate rights. He also challenges the factual basis for his plea and asserts, for the first time, his innocence. Overall, McMillen alleges, the result of the plea process was that he was "duped" into pleading guilty.
McMillen did not assert his challenge to the voluntariness of his plea in a direct appeal. Accordingly, he has waived his ability to collaterally attack his conviction on this ground. See United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) ("A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result."); see also Reed v. Farley, 512 U.S. 339, 354 (1994) (stating that "[w]here the petitioner — whether a state or federal prisoner — failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes "cause' for the waiver and shows "actual prejudice. . . ."').
Because McMillen challenges Ogan's representation in connection with the plea, the court will focus on the validity of McMillen's ineffective assistance claim in this regard. When a defendant, such as McMillen, pleads guilty to the charges against him, the voluntariness of such a plea is an important factor in determining the reasonableness of acts and omissions of trial counsel. 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.) (per curiam), cert. denied, 454 U.S. 840 (1981).
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, understanding "the consequences" of a guilty plea simply means 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.) (internal quotations omitted), cert. denied, 517 U.S. 1198 (1996). The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of guilty pleas." Gracia, 983 F.2d at 627.
In this case, McMillen is not challenging any of the admonishments he received from the court in connection with his guilty plea. Instead, he claims that he did not enter a knowing and voluntary plea of guilty. Against that backdrop, the focus shifts to the circumstances surrounding McMillen's plea. Sworn testimony in open court carries a strong presumption of verity in a subsequent collateral proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) ("a defendant ordinarily will not be heard to refute her testimony given at a plea hearing while under oath. Solemn declarations in open court carry a strong presumption of verity, forming a formidable barrier in any subsequent collateral proceedings.") (citations and internal quotation marks omitted). Court records, furthermore, are given a presumption of regularity. See Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th Cir.), cert. denied, 476 U.S. 1143 (1986); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974), cert. denied, 421 U.S. 918 (1975); Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999).
The record as a whole reflects that McMillen had a clear understanding of the proceedings against him, the nature of the offenses with which he was charged, and the consequences of entering a guilty plea. At the rearraignment, the court determined McMillen's competency and concluded that McMillen understood the nature of the charges at issue and his legal rights. Rearraignment, attached to Response as Exhibit E, at 4-8. McMillen was aware of the maximum terms of imprisonment for the charges and understood that he had agreed to a sentence of 264 months imprisonment. Id. at 8-10; Plea Agreement, attached to Response as Exhibit C, at 3. McMillen also stated that he was satisfied with Ogan's representation of him in this case. Rearraignment at 5. Furthermore, McMillen stated in no uncertain terms that he had reviewed and understood the plea agreement. Id. at 12-13. The court also ensured that McMillen's plea was not the result of coercion and that the plea agreement contained all of the promises between the parties. Id.
Based on the record, McMillen cannot overcome the presumption of verity accorded solemn declarations in open court or the presumption of regularity accorded court records. Under the totality of the circumstances, it is evident that McMillen fully understood the charges against him and the consequences of his plea. That McMillen later decided he did not like his plea agreement, see footnote 2 above, and sought to re-negotiate it does not make his plea unknowing, unintelligent, or involuntary.
Similarly, McMillen has not established that his counsel was ineffective in advising him to plead guilty. When he initially tried to withdraw his plea of guilty in 2001, McMillen claimed that counsel for the government had improperly coerced him to plead guilty. In his October 16, 2001 letter to the court, McMillen accused the United States of withholding discovery and using impeachment evidence to convince him to plead guilty on October 10, 2001. October 16 Letter at 1. In response to McMillen's motion to withdraw, the United States informed the court that the parties did not exchange any evidence during plea negotiations. United States' Response to Defendant's Motion to Withdraw Guilty Plea ("Plea Withdrawal Response") at 8. With respect to McMillen's claim that counsel for the United States presented him with impeachment evidence relating to his wife during plea negotiations, the United States presented a letter reflecting that the information had been provided to McMillen through his attorney on October 5, 2001. Id. and Letter from Michael Gill, AUSA, to Sam Ogan dated October 5, 2001, attached to Plea Withdrawal Response as Exhibit A.
Since McMillen knows that the argument made in his motion to withdraw his guilty plea was refuted by documentation presented to the court, he now — in this motion — attempts to blame Ogan. McMillen claims that Ogan confronted him with his wife's police report during trial in an effort to coerce McMillen to plead. As reflected in Ogan's affidavit, this assertion is false:
As for the contention that Mr. McMillen was handed a police report regarding his wife just moments before he pleaded guilty, this is simply not true. As is often the case, the government continued to provide discovery up to the time of trial. One offense report, which I discussed with Mr. McMillen before jury selection, had to do with Mr. McMillen's wife and her involvement with drug [sic] and guns or both. Throughout my representation, Mr. McMillen had alternated wildly between wanting to protect his wife from possible prosecution, and wanting to have her testify on his behalf, regardless of the consequences. We discussed the report when I got it, but Mr. McMillen never indicated that it had anything to do with his decision to plead guilty.
Ogan Affidavit at 4a. McMillen further claims that Ogan had promised to have McMillen submit to a lie detector test and move for a reduction of his sentence. Again, Ogan puts these claims to rest by pointing out that such an offer was never made by the government. Id. at 5.
See n. 3, above.
For the first time, McMillen also asserts that he is actually innocent. In "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime," federal courts may find "a fundamental miscarriage of justice." McCleskey v. Zant, 499 U.S. 467, 494 (1991). The "actually innocent" standard is the same as the "fundamental miscarriage of justice" standard. United States v. Sorrells, 145 F.3d 744, 749 n. 3 (5th Cir. 1998). To establish his actual innocence, McMillen "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Indeed, actual innocence means factual innocence, not mere legal insufficiency." United States v. Torres, 163 F.3d 909, 912 (5th Cir. 1999) (internal quotation marks and footnotes omitted).
See Motion at 6g ("[c]ounsel never made sure there was a true factual basis for the plea. . . . The result was petitioner pled to a crime that he was actually innocent of.") and 6h ("Counsel knew full well that petitioner was actually innocent of the crimes he was being sentenced for."). Not only is this claim belied by McMillen's sworn statements at rearraignment, but it is also contradicted by the statement of his wife Emma Baulch that "Wayne and I are not denying drug abuse or even his possession of a firearm." Letter from Emma C. Baulch to Mediators Against Injustice dated August 30, 2001, located in McMillen's Appendix of Exhibits at 63.
Although McMillen asserts his actual innocence, he does not allege any factual basis for his claim. Furthermore, he executed the Factual Resume, clearly indicating that he engaged in the conduct charged in Counts 5 and 6 of the superseding indictment. Factual Resume, attached to Response as Exhibit D, at 2-4. When he signed the factual resume, he indicated that the facts contained therein show what happened. At the rearraignment hearing, he agreed and stipulated that the Factual Resume was a fair and accurate summary of his illegal conduct. Rearraignment at 13-14. McMillen also informed the court that he did not disagree with any portion of the Factual Resume. Id. at 14.
If McMillen disputed any of the facts set forth in the Factual Resume, he should have challenged them in open court. Instead, he swore under oath that the information was true and accurate. The facts presented at the plea hearing support the conclusion that McMillen knowingly violated both 18 U.S.C. § 922(g)(1) and 924(c)(1), as charged in Counts 5 and 6. In the light of those facts, a jury certainly would have convicted McMillen of both offenses. It is not more likely than not, given this background, that no reasonable juror would have convicted him. See Torres, 163 F.3d at 912. Accordingly, McMillen has not shown that he is actually innocent of either charge.
6. Grounds Six and Nine: Claims of ineffective assistance of counsel in relation to "public authority" defense.
Surprisingly, McMillen claims that he was denied effective assistance of counsel when Ogan failed to pursue the "public authority" defense. The public authority defense applies where a defendant "seeks exoneration based on the fact that he reasonably relied on the authority of a governmental official to engage him in covert activity." United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995); see also United States v. Spires, 79 F.3d 464, 466 n. 2 (5th Cir. 1996). McMillen asserts that at the time of his arrest, he was assisting the Dallas Police Department in their efforts to arrest Roger D. Lockwood, a/k/a Deano, another methamphetamine cooker. Motion at 6c.
This claim of public authority, like McMillen's claim that the December 5, 2000 controlled buy was a sham, is not supported by any evidence. Accordingly, McMillen has not shown any error, much less prejudice, from his counsel's failure to pursue this frivolous defense. See United States v. Lopeztegui, 230 F.3d 1000, 1004 (7th Cir. 2000) (rejecting defendant's claim of ineffective assistance by counsel when his attorney failed to pursue the entrapment defense. In support, the court reasoned "[flailing to push an entrapment defense, which would have probably gotten [the attorney] laughed out of court, was not ineffective. And considering the strength of the government's case — Agent Broeske's and Critton's testimony along with audio tapes of the transactions — counsel's choice to give some ground and focus the defense on the only arguably winnable count, conspiracy — was wise, not derelict.").
7. Grounds Seven and Eleven: Claims of ineffective assistance of counsel in relation to the failure of McMillen "s attorney to file a notice of appeal.McMillen claims that he was denied the effective assistance of counsel when his attorney failed to file a notice of appeal. He vaguely asserts that he "repeatedly" requested Ogan to file an appeal on his behalf, Motion at 6j, yet he fails to specifically point out what areas he would have appealed. He also asserts that his procedural default in failing to assert the ineffective assistance claim on direct appeal should be excused.
McMillen argues that his attorney's actions deprived him of the right to appeal. However, the record establishes McMillen's knowing and voluntary waiver of his right to appeal. McMillen entered into this plea agreement with his eyes wide open. At his rearraignment, McMillen swore in open court that he had read, understood, and voluntarily agreed with all the provisions of his signed plea agreement. Rearraignment at 12-13; see also United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) ("'Solemn declarations in open court carry a strong presumption of verity."') (quoting Blackledge, 431 U.S. at 73-74).
In his plea agreement, McMillen unequivocally agreed to waive the right to appeal his sentence, as set forth in the following provision:
WAIVER OF RIGHT TO APPEAL SENTENCE
11. Except as otherwise provided, the defendant hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum, (b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court, and (c) ineffectiveness of counsel.
Plea Agreement at 4-5. The court discussed this waiver provision with McMillen during his rearraignment, at which time McMillen indicated that he understood the effect of this waiver of appeal provision. Rearraignment at 11-12. McMillen has not presented any evidence to suggest that his waiver of appellate rights was not knowing and voluntary.
Based on the waiver provision, McMillen could not appeal his sentence. Furthermore, as indicated by Ogan's affidavit, McMillen did not request him to file a Notice of Appeal. Ogan Affidavit at 5. After sentencing, Ogan forwarded a copy of the judgment to McMillen. See Letter from Sam L. Ogan, Esq. to Walter W. McMillen dated January 17, 2002, attached to Ogan Affidavit as Exhibit B. In this letter, Ogan advised McMillen that he would not file an appeal in this case based on the waiver of appeal provision in the plea agreement and because the court had sentenced him to the agreed sentence. Id. Ogan did not receive any further inquiry from McMillen until October 2002, after McMillen filed this § 2255 motion. Ogan Affidavit at 6. On this record, McMillen has not shown any deficient performance by his attorney or any prejudice in the outcome of his case.
8. Ground Nine: Claim of ineffective assistance of counsel at sentencing.
In this challenge, McMillen generally asserts that he was denied the effective assistance of counsel at sentencing. He also rehashes the public authority defense addressed above. His challenge fails at the outset because he has not pointed to any alleged error by his attorney at the sentencing phase of this case.
Even if it is assumed that McMillen could point to an error, however, he has not satisfied the prejudice requirement. To establish prejudice, McMillen would have to show that absent any alleged errors, his sentence would have been significantly less harsh. See Segler, 37 F.3d at 1136. At sentencing, the court sentenced McMillen to 264 months imprisonment, in accordance with the parties' Rule 11(c)(1)(C) agreement. Sentencing, attached to Response as Exhibit J, at 4. The Presentence Report, however, established a guideline range of 262-327 months for the § 922(g)(1) charge contained in Count 6, which would have run consecutive to the 84 month mandatory sentence for the § 924(c)(1) charge contained in Count 5. Id. at 3-4; 18 U.S.C. § 924(c)(1)(A)(ii). If the Rule 11(c)(1)(C) agreement had not been in effect, the lowest sentence McMillen could have received at sentencing was 346 months imprisonment (combining the low end guideline range of 262 months with the mandatory consecutive term of 84 months). In addition, the plea agreement saved McMillen from a mandatory life sentence under 18 U.S.C. § 3559(c)(1). Overall, McMillen cannot seriously maintain that his attorney committed any error in achieving this resolution of the case, much less that McMillen suffered any prejudice.
9. Ground Thirteen: Claim of ineffective assistance of counsel throughout the case.
In his final challenge, McMillen reasserts all of his previous claims and alleges that he was denied effective assistance of counsel throughout the entire case.
The record reflects, however, that throughout this entire case, McMillen received excellent and thorough legal representation. Ogan has been licensed to practice law since 1982. Ogan Affidavit at 1. Since that time, he has tried approximately 115 criminal jury trials and he has prepared and argued numerous appeals for criminal defendants in state and federal courts. He has been an Assistant Public Defender for nine years. Id. Armed with this experience, Ogan vigorously defended McMillen in this case. The evidence against McMillen was overwhelming and he was facing a mandatory life sentence in prison under 18 U.S.C. § 3559(c)(1). Despite these odds, Ogan still managed to negotiate a plea agreement for McMillen limiting his exposure to 264 months imprisonment. Furthermore, throughout each of the grounds in his motion, McMillen has not pointed to a single area where the credible evidence on the record would show that Ogan provided ineffective assistance. Furthermore, even if McMillen could somehow establish one iota of deficient representation, he still has not shown any prejudice in the resolution of this case. All of his ineffective assistance claims are therefore denied.
C. Self-representation
In Ground Ten, McMillen claims that he was denied his constitutional right to due process of law because the court failed to hold a Faretta hearing regarding his request to represent himself at trial. See Faretta v. California, 422 U.S. 806, 819 (1975) (holding that a criminal defendant has a constitutional right under the Sixth Amendment to proceed without counsel and represent himself at trial when he elects to do so). It appears that since McMillen failed to raise this issue on direct appeal, he has waived his ability to collaterally attack his conviction on this ground. See Kallestad, 236 F.3d at 227. However, he also makes the general claim under Ground Thirteen that he received ineffective assistance of counsel in relation to this allegation, so the court will address it.
In order for a Faretta hearing to be necessary, McMillen would first have had to make a request to the court for self-representation. See Faretta, 422 U.S. at 807 ("the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense"). The court has reviewed the entire record and has found no indication that McMillen made a request to the court to represent himself at trial. Accordingly, since no request was made to the court, McMillen cannot now claim that he was improperly denied a Faretta hearing. Furthermore, even if such a request had been made, McMillen has not established, in light of the outcome in this case, any resulting prejudice.
The closest McMillen came to requesting that he be allowed to represent himself was in a letter to the court dated September 17, 2001, located in McMillen's Appendix of Exhibits at 64. There, McMillen stated, "I wish to request in writing that you either appoint me different counsel or allow me to represent myself with appointed co-counsel." of course, as to the latter half of this request, no right of hybrid representation is recognized in the federal courts. See 28 U.S.C. § 1654; United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978).
V. CONCLUSION
For the reasons set forth above, McMillen's motion under 28 U.S.C. § 2255 is DENIED in its entirety.