Opinion
Civil Action No. 9:06cv48, Crim. No. 9:04cr31.
June 2, 2006
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The movant Tory Thomas, an inmate currently confined in the Federal Correctional Institution in Talledega, Alabama, filed this motion to vacate or correct his federal sentence under 28 U.S.C. § 2255. The motion was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
In his motion to vacate and an attached memorandum, Thomas says that he was convicted of possession of a controlled substance with intent to distribute, receiving a sentence of 108 months in prison.
Thomas says that the district court failed to require disclosure of the terms of the plea agreement for the record. Specifically, he says that during the plea colloquy, he was not advised that he was waiving his right to challenge his sentence on any ground at sentencing or on appeal. He was further not told that he was stipulating to a drug amount of five to 15 kilograms. He says that his subsequent objections to the pre-sentence report show that he did not understand the waiver or stipulations.
Second, Thomas says that he was denied effective assistance of counsel when he was "misled" into believing that he would only be held responsible for three kilograms, when in fact his attorney had made stipulations with the Government to five to 15 kilograms, and waived Thomas' right to challenge his sentence on any ground. Thomas says that these terms of the plea agreement were not discussed with him and that had he known of their existence, he would not have pleaded guilty.
The Government has been ordered to answer and has done so. In this answer, the Government first traces the history of the case. According to the Government, on November 19, 2003, a person named Albert Martin was stopped for a traffic violation in Nacogdoches County, Texas. He attempted to flee from the trooper and was seen trying to throw two bags into a brushy area. These bags were recovered and were found to contain 2.91 kilograms (almost six and a half pounds), and 8.66 pounds of marijuana. The packaging of the drugs was analyzed and found to have Thomas' fingerprints.
Investigators determined that Thomas had been supplying Martin and his cousin Charles McCray with drugs which they in turn had been transporting from Houston to Shreveport. McCray was already in custody after having been stopped with about six kilograms of cocaine in a duffle bag and over three thousand dollars in cash. Both Martin and McCray said that they had obtained the drugs from Thomas.
After setting out the legal standards applicable to Section 2255 cases, the Government says that at the change of plea hearing, the Court read the indictment, specifying that Thomas was being charged with possession of more than 500 grams of cocaine, and set out the range of punishment, which was imprisonment for five to 40 years, a fine of up to two million dollars, and a term of supervised release of not less than four years. Thomas was also asked if he understood the terms of the plea agreement, which he said that he did. The Government summarized the terms of the plea agreement, including a statement that the amount of cocaine involved in the offense conduct was more than five but less than 15 kilograms of cocaine, and that Thomas would waive all appeal rights except for four.
Turning to the second ground, ineffective assistance of counsel, the Government characterizes Thomas' claims as vague and non-specific, saying that conclusory allegations are not sufficient. The Government furnishes an affidavit from Tyrone Moncriffe, Thomas' attorney, stating that he went over the plea agreement with Thomas and that Thomas was never concerned about an appeal, but only in obtaining the reduction for acceptance of responsibility. The Government also says that Thomas' claim is not among the exceptions for collateral attack in his plea agreement and is therefore barred on that basis as well.
Thomas has filed a response to the answer. In his response, Thomas acknowledges that the Government is correct with respect to his first ground for relief, that the district court failed to require disclosure of the terms of the plea agreement, and asks that this claim be withdrawn. This request is meritorious.
Second, Thomas says that his plea was entered with the understanding that he would be held accountable for the 2.91 kilograms of cocaine as charged in the indictment. He says that counsel was ineffective by "misleading him to stipulate to a higher amount of drugs not contained in the indictment" when he had a meritorious defense to the uncharged conduct.
Thomas concedes that he said that he understood the terms of the plea agreement at the hearing, but maintains that his answers to the Court's questions were on the advice of counsel. He says that counsel told him to concede to "any and all questions" which he did, with the understanding that he would only be held accountable for the 2.91 kilograms. Thomas says that he never admitted to the six kilograms, but that he did say that he had been arranging "drug deals" with his cousin, McCray. Thomas says that Moncriffe's affidavit "is not true" and that counsel's error was the misrepresentation of the plea agreement, which misled Thomas into thinking that he would be held responsible for 2.91 kilograms of cocaine rather than five to 15 kilograms.
However, the testimony at the plea hearing belies Thomas' claims. Although Thomas says that he understood that he would be held responsible only for the "2.91 kilograms of cocaine as charged in the indictment," in fact the indictment only says that he possessed with intent to distribute "in an amount greater than 500 grams of cocaine." The elements of the offense statement also specifies that the amount is "at least 500 grams."
In the summary of the plea agreement, the Government said that "we have stipulated to the amount of cocaine involved in the defendant's offense conduct, that it will be more than five, but less than 15 kilograms of cocaine." (Transcript of Plea Hearing, p. 11). Following this, Thomas was asked if he understood the summarization and still accepted the terms of the plea agreement, and he said that he did.
In its offer of proof, the Government said that it would establish that Thomas was responsible for distributing "more than five kilograms, but less than 15 kilograms of cocaine." (Transcript of Plea Hearing, p. 14). The following colloquy then took place:
THE COURT: All right, you acknowledge and agree with the Government's summary of the facts constituting proof of the commission of the offense and the charges against you in indictment [sic] in every respect?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any changes whatsoever that you would add?
THE DEFENDANT: No, sir, I don't.
THE COURT: All right. It explains your participation in the crime as charged?
THE DEFENDANT: Yes, sir.
THE COURT: All right, are you entering your plea of guilty knowingly, freely, voluntarily, and with the advice of counsel?
THE DEFENDANT: Yes, sir.
THE COURT: Are you pleading guilty because you are guilty?
THE DEFENDANT: Yes, sir.
(Transcript of Plea Hearing, p. 15).
The Supreme Court has stated that solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 74 (1977). As a result, the petitioner faces the heavy burden of proving that he is entitled to relief.DeVille v. Whitley, 21 F.2d 654, 659 (5th Cir. 1994). The critical question is whether the entry of his guilty plea was knowing and voluntary, and in this, the petitioner has failed to overcome the evidence of his own words. See United States v. Raetzsch, 781 F.2d 1149, 1151 (5th Cir. 1986) (holding that there must be independent indicia of the likely merit of the petitioner's contentions; mere contradiction of the statements made at the guilty plea proceeding will not suffice); cf. United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985) (to be entitled to evidentiary hearing on claim that sworn statements made during the guilty plea proceeding were false, the petitioner must make "specific factual allegations supported by the affidavit of a reliable third person").
In this case, Thomas testified several times during the plea proceeding that he understood the charges against him and that he agreed with the stipulation of evidence, which stipulation included the fact that he would be held responsible for five to 15 kilograms of cocaine. Within moments after the Government said that the proof would establish that Thomas was culpable for five to 15 kilograms, Thomas was asked if there were any changes he would like to make, and he said no. (Transcript of Plea Hearing, p. 15). Plainly Thomas was well aware that with his guilty plea, he was subjecting himself to liability for between five and 15 kilograms of cocaine, and his claim on this point is without merit.
Thomas also indicates in his original petition that his attorney was ineffective for failing to advise him of the waiver of appeal provision. In summarizing the plea agreement, the Government stated that pursuant to paragraph 10 of the plea agreement, Thomas agreed to waive all of his appeal rights, except for four: the right to appeal any punishment imposed in excess of the statutory maximum, upward departures from the guideline range deemed most applicable by the sentencing court, arithmetic errors, and claims of ineffective assistance of counsel which affected the validity of the waiver itself. The Government also stated that Thomas understood that this was the full and entire plea agreement, that no other promises had been made or were implied, and that he entered the agreement freely and on the advice of counsel. As noted above, Thomas was asked if he understood the summation of the plea agreement, which he said that he did, and whether he still accepted the terms of the plea agreement, which he said that he did.
Thomas was thus aware that he was waiving his appeal rights, except for the four exceptions which were set out in the plea agreement and in the summary. He testified at the plea proceeding that he had read the agreement and discussed it with his attorney and that he understood it before he signed it. (Transcript of Plea Hearing, pp. 9-10). Thomas' allegations in his Section 2255 proceeding are insufficient to overcome the evidence of his own words, given under oath at the plea proceeding. His claim on this point is without merit.
In addition, the Fifth Circuit has held that to prevail on a claim of ineffective assistance of counsel, a movant must show that (1) his attorney's actions fell below an objective standard of reasonableness and (2) the ineffective assistance prejudiced him. United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996), citing Strickland v. Washington, 466 U.S. 668 (1984). Counsel's actions are reviewed with great deference and a "strong presumption" that counsel has exercised reasonable professional judgment. Payne, 99 F.3d at 1282. This means that the habeas petitioner must establish both that (1) counsel's performance was deficient in that it fell below an objective standard of reasonable competence and (2) the deficient performance so prejudiced the defense that the outcome of the trial was unreliable and there is a reasonable probability that, but for counsel's performance, the result of the trial would have been different. Unless a petitioner makes both showings, he is not entitled to relief. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). The burden of proving ineffective assistance of counsel is on the petitioner. Hayes v. Maggio, 699 F.2d 198, 201 (5th Cir. 1983).
The petitioner has the burden of identifying the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 694; Jones v. Butler, 864 F.2d 348 (5th Cir. 1988), cert. denied 490 U.S. 1075 (1989). General statements and conclusory charges of ineffectiveness will not suffice. Green v. McGougan, 744 F.2d 1189, 1190 (5th Cir. 1984).
In the context of a guilty plea, the Supreme Court and the Fifth Circuit have held that the defendant must show that counsel provided ineffective assistance and that but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1986); Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988). Mere allegations from a petitioner that he would have demanded a trial if counsel's advice had been different are insufficient to establish a reasonable probability that he would have actually done so. Joseph, 838 F.2d at 791; Wolfe v. Puckett, 780 F.Supp. 408, 416 (N.D. Miss. 1991). Furthermore, the prejudice prong of the ineffectiveness test means that even where counsel has rendered totally ineffective assistance to a defendant entering a guilty plea, the conviction should be upheld if the plea was voluntary. DeVille v. Whitley, 21 F.2d 654, 659 (5th Cir. 1994).
In this case, Thomas has offered nothing except for his own allegation that but for counsel's alleged failure to advise him of the waiver of appeal provision, he would not have pleaded guilty, but would have insisted on going to trial. As noted above, Thomas was asked at the change of plea hearing if he understood to the terms of the plea agreement, to which he said yes, and whether his plea was voluntary, which he said that it was. The Government summarized the plea agreement, and stated in this summary that the amount of cocaine involved was more than five but less than 15 kilograms. The Government also stated that pursuant to paragraph 10 of the plea agreement, Thomas agreed to waive all of his appeal rights, except for four: the right to appeal any punishment imposed in excess of the statutory maximum, upward departures from the guideline range deemed most applicable by the sentencing court, arithmetic errors, and claims of ineffective assistance of counsel which affected the validity of the waiver itself. The Government also stated that Thomas understood that this was the full and entire plea agreement, that no other promises had been made or were implied, and that he entered the agreement freely and on the advice of counsel. Following this, Thomas testified that he understood the summation of the plea agreement and that he still accepted the terms of this agreement. He has not shown that he received ineffective assistance of counsel.
At the plea hearing, Thomas also testified that he had discussed the facts of the case and any possible defenses with his attorney, that he was satisfied that the attorney had considered all of these factors, and that he was satisfied with his attorney's advice and representation in the case. (Transcript of Plea Hearing, p. 3).
Finally, the plea agreement which Thomas signed contained a waiver of appeal provision, which said that he would waive all appeal rights, including collateral attacks under Section 2255, except for four grounds: the right to appeal any punishment imposed in excess of the statutory maximum, upward departures from the guideline range deemed most applicable by the sentencing court, arithmetic errors, and claims of ineffective assistance of counsel which affected the validity of the waiver itself.
The Fifth Circuit has upheld the validity of waivers of appeal, even in the Section 2255 context. In United States v. White, 307 F.3d 336 (5th Cir. 2002), the movant Kevin White pleaded guilty to a charge of conspiracy to distribute cocaine base. The plea agreement also contained a waiver of the right to appeal, including a waiver of the right to challenge the sentence under Section 2255. This provision contained three exceptions, specifying that White could challenge a sentence in excess of the statutory maximum, an upward departure from the applicable guideline range, and the disparate treatment of cocaine and cocaine base in the statute. Neither the plea agreement nor the factual resume, signed by White, contained any reference to any particular quantity of drugs.
On direct appeal, White challenged the disparity in sentencing between cocaine and cocaine base, and the trial court's rejection of his entrapment argument. The Fifth Circuit affirmed the trial court's decision on sentencing disparity and refused to address the second claim because of the waiver of appeal.
White then filed a Section 2255 motion based on the Government's failure to provide lab reports establishing the quantity of drugs. He also claimed that he received ineffective assistance of counsel based on his attorney's failure to point out this shortcoming. He asserted that enforcement of the waiver of appeal would be a "manifest miscarriage of justice." The district court found that the waiver language in the plea agreement was clear and unambiguous and that White had knowingly and voluntarily waived his right to appeal, and so denied the Section 2255 motion, as well as White's request for a certificate of appealability. White then sought a certificate of appealability from the Fifth Circuit, claiming in effect (as construed by the appellate court) that his waiver of appeal was not valid.
The Fifth Circuit determined that White did not argue that ineffective assistance of counsel rendered his waiver of appeal involuntary. Instead, White claimed ineffective assistance of counsel based on his attorney's performance at his sentencing hearing. The Court concluded that White was not challenging the validity of his plea, but only his sentencing.
In so holding, the Fifth Circuit framed the question as being whether a waiver of appeal would remain valid if the Section 2255 movant argued that he received ineffective assistance of counsel at stages of the proceeding other than the plea or waiver itself. The Court reviewed cases from other circuits, all of which concluded that waivers of appeal remain valid unless the ineffective assistance directly related to the knowing and voluntary character of the waiver. See, e.g., Mason v. United States, 211 F.3d 1065 (7th Cir. 2000) (ineffective assistance claim which merely challenged attorney's performance at sentencing barred by waiver of appeal); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001) (ineffective assistance claim can survive the waiver only if it challenges the validity of the plea or the waiver).
The Fifth Circuit, agreeing with these holdings, ruled that an ineffective assistance of counsel argument would survive a waiver of appeal only if the claimed assistance directly affects the validity of the waiver or of the plea itself. White, 307 F.3d at 343.
Thomas says that he received ineffective assistance of counsel and that his rights were violated because he was not told that he was waiving his appeal rights and that he is being held responsible for a higher quantity of drugs than he originally believed. These grounds do not fall into any of the exceptions to the waiver of appeal to which Thomas agreed; he has not shown that his punishment exceeded the statutory maximum, that there was an upward departure from the guideline range, nor that there were any arithmetic errors. The record clearly shows that Thomas was aware of the waiver of appeal and of the quantity of drugs for which he would be held responsible, and chose to plead guilty with this knowledge. (Transcript of Plea Proceeding, pp. 13-15). For this reason, his claims are barred by the waiver of appeal, and are also lacking in merit even were they not barred. He has not shown any valid basis for relief under Section 2255 and so his motion to vacate or correct sentence should be denied.
Conclusion
The movant Tory Thomas has failed to show that his sentence was imposed in violation of the Constitution or laws of the United States, that the Court was without jurisdiction to impose such sentence, that his sentence was in excess of the maximum authorized by law, or that his sentence is otherwise subject to collateral attack. Consequently, his Section 2255 motion should be denied.
RECOMMENDATION
It is accordingly recommended that the movant's motion to vacate or correct his sentence be denied. 28 U.S.C. § 2255.
A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).