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Rogers v. United States

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA
Mar 6, 2014
No. 1:11-cv-67 (E.D. Tenn. Mar. 6, 2014)

Opinion

No. 1:11-cv-67 No. 1:09-cr-181

03-06-2014

DONNIE LEE ROGERS v. UNITED STATES OF AMERICA


Judge Curtis L. Collier


MEMORANDUM

Before the Court is Donnie Lee Rogers's ("Rogers") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1052). The government responded in opposition (Court File No. 1277). Rogers did not file a reply brief. Rogers's motion, together with the files and record in this case, "conclusively show that the prisoner is entitled to no relief." § 2255; see also Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts. Accordingly, the Court determines an evidentiary hearing is unnecessary and for the following reasons will DENY Rogers's § 2255 motion (Court File No. 1052).

Each document will be identified by the court file number assigned to it in the underlying criminal case.

I. STANDARD OF REVIEW

Section 2255(a) provides that a federal prisoner may move to vacate, set aside, or correct his judgment of conviction or sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the federal district court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by federal law or is otherwise subject to collateral attack.

To state a claim for relief, a § 2255 motion must allege (1) an error of constitutional magnitude; (2) a sentence was imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). A §2255 movant bears the burden of establishing an error of federal constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceeding. Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (citing Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003)).

To obtain relief under § 2255 for a nonconstitutional error, the movant must establish either (1) a fundamental defect in the criminal proceeding which inherently resulted in a complete miscarriage of justice or (2) an error so egregious that it amounted to a violation of due process. Reed v. Farley, 512 U.S. 339, 354 (1994). Where nonconstitutional issues are at stake, there is no basis for allowing a collateral attack under § 2255 to do service for a direct appeal. United States v. Timmreck, 441 U.S. 780, 784 (1979).

II. BACKGROUND

In 2010 Rogers pleaded guilty to, and was convicted of, conspiracy to manufacture and possess with intent to distribute 50 grams of methamphetamine (actual) and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (Court File Nos. 280 and 593). The plea agreement, signed by Rogers and his attorney, states that during his 2009 arrest Rogers possessed materials used to manufacture methamphetamine. Further, it notes that after Rogers waived his Miranda rights, he "admitted to his involvement with others, including persons named in this indictment, in the manufacture of methamphetamine" (Court File No. 280). The agreement also states Rogers revealed the location of additional chemicals and materials used by the coconspirators to manufacture methamphetamine, items officers subsequently found when executing search warrants. Additionally, the plea agreement provides that records kept pursuant to the Meth Free Tennessee Act showed Rogers purchased 243 grams of pseudoephedrine, which Rogers admitted buying to further the conspiracy.

The Presentence Report ("PSR") adds further detail, reporting that Rogers admitted during a 2009 post-arrest interview he had begun supplying chemicals for methamphetamine manufacturing in 2002 (PSR, ¶ 67). It also notes Rogers admitted that in addition to purchasing pseudoephedrine he would also buy iodine, Coleman Fuel, and Heet for use in the conspiracy (id.) Further, the PSR reports Rogers would normally exchange pseudoephedrine pills for cash but sometimes received methamphetamine in return (id.). Also, he admitted being present at several "cooks" at the home of a coconspirator's mother (id.).

During Rogers's March 15, 2010 rearraignment hearing, the magistrate judge conducted a preliminary colloquy to ensure Rogers was not under the influence of drugs, alcohol, or medication (Court File No. 1251, pp. 7-9). Rogers affirmed he had read the indictment, had had enough time to talk with his lawyer about the case, and was satisfied with his lawyer's representation (id., pp. 9-10). When asked, "[i]s your decision to plead guilty also in this case based upon discussions with your lawyer and then your decision as between your alternatives, what you think's in your best interest," Rogers replied "[i]t is, sir" (id., p.10).

The magistrate judge then advised Rogers of the constitutional rights he was giving up by pleading guilty (Id., pp. 9-13). Rogers affirmed he understood those rights, had not been threatened or forced to plead guilty, and was pleading guilty voluntarily (id.). Rogers also acknowledged he had read the plea agreement, it contained his entire agreement with the United States, and he had not received any other promises of leniency (id., pp. 13-14, 16-17). The relevant count and its elements were read aloud to Rogers, who swore he understood what the United States would have needed to prove to obtain his conviction and he understood the charge to which he was pleading guilty (id., pp. 18-20). After being reminded of his sentencing exposure, Rogers said he still wished to plead guilty (id., pp. 20-21).

On April 1, 2010 the Court adopted the magistrate judge's R&R accepting the guilty plea (Court File No. 296) and on June 24, 2010 sentenced Rogers to the statutory mandatory minimum of 120 months' imprisonment (Court File No. 593). He did not appeal but timely filed the present § 2255 motion (Court File No. 1052).

III. ANALYSIS

The Court addresses Rogers's four grounds for relief in a different order from the litigants because resolution of the first bears on the others.

A. Ineffective Assistance of Counsel

Rogers argues he received ineffective assistance of counsel because his lawyer brought him the plea offer four hours ahead of the Court's plea agreement deadline and told Rogers it was in his best interest to sign it. Rogers asserts this was his first drug charge and he was scared. The record indicates that although Rogers's signature on the plea agreement is dated February 22, 2010, the last day of the plea window, it was not until March 15, 2010 that Rogers entered his guilty plea during rearraignment and April 1, 2010 that the Court accepted the plea.

To establish ineffective assistance of counsel, Rogers must demonstrate that (1) his attorney's representation fell below the standard of competence demanded of attorneys in criminal cases and (2) there was a reasonable probability that, but for his attorney's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

1. Performance

To establish that an attorney did not perform within the range of competence demanded of attorneys in criminal cases, a defendant must demonstrate the attorney's representation fell below an objective standard of reasonableness. Id. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689; Sims v. Livesay, 970 F.2d 1575, 1579-80 (6th Cir. 1992). "[R]eviewing court[s] must remember that 'counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998) (quoting Strickland, 466 U.S. at 690). In sum, the standard by which a court reviews counsel's performance is highly deferential.

Rogers provides no facts suggesting his counsel's assistance fell outside the wide range of reasonable professional assistance. Although the timeline may have been somewhat compressed, Rogers does not assert his attorney pressured him to sign the agreement, withheld information regarding his case, or did not inform him of the impact of entering the agreement and pleading guilty. In fact, the information the Court does have indicates Rogers knowingly, voluntarily, and with adequate assistance entered the plea agreement and pleaded guilty. During his rearraignment Rogers swore under oath he was not threatened, forced, or otherwise induced to plead guilty; he had read the plea agreement; that he had adequately discussed the case with his lawyer and was satisfied with his lawyer's representation; and that he understood the elements of the charged crime and was pleading guilty because he was in fact guilty.

Such "[s]olemn declarations in open court carry a strong presumption of verity," Blackledge v. Allison, 431 U.S. 63, 74 (1977), and a movant is ordinarily bound by his sworn statements during the plea colloquy. See also Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (explaining that failing to hold defendants to their statements would "render[] the plea colloquy meaningless" and "condon[e] the practice by defendants of providing untruthful responses to questions during plea colloquies"). In light of Rogers's statements on record indicating he was satisfied with his lawyer's performance and was voluntarily and knowingly pleading guilty, and given the absence of evidence his lawyer improperly caused Rogers to plead guilty, the Court concludes an evidentiary hearing is not warranted.

2. Prejudice

The second prong of the Strickland test requires a showing that counsel's deficient performance prejudiced the defendant. In the plea context, the movant must show a reasonable probability that but for counsel's deficient performance, he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). This requires the movant to present evidence apart from a lone assertion that but for counsel's error he would have pleaded not guilty and gone to trial. See, e.g., Parry v. Rosemeyer, 64 F.3d 110, 118 (3rd Cir. 1995) ("A defendant alleging ineffective assistance of counsel in the guilty plea context must make more than a bare allegation that but for counsel's error he would have pleaded not guilty and gone to trial."); accord Armstead v. Scott, 37 F.3d 202, 210 (5th Cir.1994); Key v. United States, 806 F.2d 133, 139 (7th Cir. 1986); United States v. Campbell, 778 F.2d 764, 768 (11th Cir. 1985). In the instant case, Rogers failed to even allege, never mind substantiate, that he would have rejected the plea agreement and gone to trial had his lawyer's performance been different. Thus Rogers's ineffective assistance of counsel claim lacks merit both on the performance and prejudice prongs.

B. Coerced Confession

Rogers alleges that before he was indicted, the Tennessee Bureau of Investigation ("TBI") told him it was in his best interest to tell investigators everything he knew and that if he did "they would probley [sic] not indite [sic] me" (Court File No. 1052). Rogers asserts he told the TBI everything he knew but was indicted anyway.

In this habeas motion, however, Rogers may only challenge his confession if he can demonstrate he pleaded guilty because of ineffective assistance of counsel. See Allen v. United States, No. 99-4013, 2000 WL 571954, *1 (6th Cir. 2000) (citing McMann v. Richardson, 397 U.S. 759, 768-70 (1970) (noting that a "counseled guilty plea waives right to assert that plea was based on a coerced confession"). As the United States Supreme Court explained in Tollett v. Henderson,

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.
411 U.S. 258, 267 (1973) (emphasis added); see also United States v. Broce, 488 U.S. 563, 569 (1989) (explaining that "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary"). Thus, because as explained above Rogers voluntarily and with effective assistance of counsel pleaded guilty, he is barred from collaterally attacking his conviction on the ground his confession was allegedly coerced.

D. Informant Role

Rogers also contends that his counsel should have informed the Court that Rogers was a "paid informant for the Bledsoe County Sheriff's Department" at the time of the federal investigation; that the Sheriff's Department "gave me money to buy pills to trade for dope so they could bust the cook"; and that he "signed papers when they would give me the money, so there's prouff [sic]." Rogers asserts this amounted to being "indited [sic] for buying pills that the law paid me to buy" (Court File No. 1052).

The Court is uncertain how this argument is intended to challenge Rogers's conviction or sentence. To the extent Rogers is arguing he is actually innocent of conspiracy to manufacture methamphetamine, it is not well taken. Rogers voluntarily and with effective assistance of counsel pleaded guilty to conspiring to manufacture methamphetamine, and there is overwhelming evidence, including Rogers's own admissions, to support the conviction. Aside from Rogers providing pseudoephedrine pills to his conspirators, activity he claims the Sheriff's Department orchestrated, he also admitted to providing on multiple occasions other materials for cooking methamphetamine, such as iodine, Coleman Fuel, and Heet. He does not claim the Sheriff's Department arranged for him to participate in these incriminating activities. Additionally, the PSR notes that Rogers admitted he mostly received cash in exchange for providing pseudoephedrine pills to his coconspirators, whereas his allegation in the present motion is that the Sheriff's Department had him trading pills for "dope" not cash. In sum, even assuming the Sheriff's Department arranged for some of Rogers's exchanges of pseudoephedrine pills for methamphetamine, the allegations in his motion fail to demonstrate that an actual innocence claim is tenable.

Rogers's argument regarding his role as an informant also fails to the extent he is contending he would have received a lesser sentence had the Court known about it. Rogers was sentenced at the mandatory minimum. The Court did not have the discretion to sentence lower absent a motion by the government. Thus even if it is true that some of the pill exchanges were orchestrated by the Sheriff's Department, informing the Court of that fact would not have changed Rogers's sentence.

C. Sufficiency of the Evidence

Rogers also argues the evidence was insufficient to convict him of conspiracy to manufacture methamphetamine. Rogers states that "clearly I was just a smearfer [sic]" and avers that the only evidence was his "pill purches [sic] and of course self incrimination." Defendant is barred from raising this sufficiency of the evidence claim, however, as he did not raise it on direct appeal. The Sixth Circuit has held that "[a]lthough [the defendant] may utilize a § 2255 motion to challenge the sufficiency of the factual basis underlying his [ ]guilty plea . . . he procedurally defaulted this claim because he did not raise it in a direct appeal." Long v. United States, No. 97-3609, 1998 WL 887272, *1 (6th Cir. 1998) (citing Bousley v. United States, 118 S.Ct. 1604, 1610-11 (1998)). A defendant can, however, obtain review of the claim following a procedural default if the defendant demonstrates that (1) cause and actual prejudice exist to excuse his failure to raise the claim in a direct appeal or (2) he was actually innocent of the crime. Id.

The Court cannot conclude that either exception applies here. Rogers alleges in his § 2255 motion neither cause for, nor prejudice from, his failure to appeal this issue directly. Further, as explained above Rogers has no credible claim of actual innocence. Accordingly, the Court concludes Rogers is barred by procedural default from challenging the sufficiency of the evidence underlying his guilty plea.

IV. CONCLUSION

For the foregoing reasons Rogers is not entitled to relief under 28 U.S.C. § 2255, and his motion to vacate, set aside, or correct his sentence will be DENIED and this action will be DISMISSED (Court File No. 1052). Because any appeal from this action would not be taken in good faith and would be totally frivolous, this Court will DENY Rogers leave to proceed in forma pauperis on appeal. Fed. R. App. P. 24. Further, the Court will not issue a certificate of appealability because Rogers has failed to make a substantial showing of the denial of a constitutional right or that reasonable jurists would disagree on the resolution of this matter. See 28 U.S.C. § 2253; Fed. R. App. P 22(b); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

An appropriate judgment order will enter DENYING Rogers's § 2255 motion.

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CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE


Summaries of

Rogers v. United States

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA
Mar 6, 2014
No. 1:11-cv-67 (E.D. Tenn. Mar. 6, 2014)
Case details for

Rogers v. United States

Case Details

Full title:DONNIE LEE ROGERS v. UNITED STATES OF AMERICA

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

Date published: Mar 6, 2014

Citations

No. 1:11-cv-67 (E.D. Tenn. Mar. 6, 2014)