Opinion
Civil Case No. 03-3051-SAC, Criminal Case No. 00-40024-08-SAC
April 12, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant Carroll James Flowers' pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 1795) and a supporting memorandum (Dk. 1796). The government has filed a response opposing the relief sought in the motion. (Dk. 1859). The defendant has filed a reply brief (Dk. 1871) and two motions to supplement (Dks. 1829 and 1889). Following these filings, the court set this matter down for an evidentiary hearing based on the factual disputes over whether the movant requested his counsel to file a direct appeal and whether his counsel failed to do so. (Dk. 1888). The defendant appeared in person at this proceeding and was represented by counsel appointed by the court. After hearing the parties' arguments and evidence on March 18, 2004, and researching the law relevant to the issues, the court is ready to rule.
PROCEDURAL HISTORY
On November 20, 2001, the defendant Flowers pleaded guilty to count one of a seventy-seven count indictment in which he was named as a defendant in five of those counts. The day before his plea, the government filed an information pursuant to 21 U.S.C. § 851 that stated the defendant shall be sentenced to increased punishment because of a prior felony drug conviction and that reflected service on the defendant's counsel, J. Richard Lake, by "telefax" on November 19, 2001. (Dk. 1079). At the change of plea hearing, the government's attorney in his summary of the significant terms to their plea agreement referred to the § 851 information that had been filed.
In March of 2002, on the defendant's request, the court appointed new defense counsel who was later allowed to withdraw when retained defense counsel, Larry A. Schaffer, entered his appearance for the defendant. On June 19, 2002, the court sentenced the defendant to 240 months imprisonment, and the judgment was filed July 2, 2002. No notice of appeal was filed.
On January 24, 2003, the defendant Flowers filed his petition pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. (Dk. 1795). In his motion, the defendant asserts three issues: (1) counsel was ineffective in failing to file a notice of appeal; (2) counsel was ineffective in not objecting when certain requirements of 21 U.S.C. § 851 were not satisfied; and (3) counsel was ineffective in not objecting to the use of "actual" methamphetamine as relevant conduct in the presentence report.
FINDINGS
1. Pursuant to the plea agreement, the government promised that the information to be filed pursuant to 21 U.S.C. § 851 would include only one of the defendant's two prior felony drug convictions.
2. On November 19, 2001, at 4:35 p.m., the day before the defendant's change of plea, the government filed the § 851 information and "telefaxed" the same to the office of defense counsel, Richard Lake, at 5:40 p.m. (Exhibit F-1).
3. While Richard Lake was unable to recall specifically receiving this faxed § 851 information, he did testify to maintaining the habits of being at his office by 7:00 a.m., visiting his office in the morning before attending a court proceeding in Topeka, and noticing any facsimiles received after office hours.
4. As shown in the transcript from the change of plea hearing, the government's attorney described the salient terms of the plea agreement to include the following: "Although the defendant has two prior drug trafficking convictions, which would enhance his sentence under 21 U.S.C. § 851, the government has agreed to file and has in fact filed a § 851 information which reflects only one of these convictions." (Dk. 1113, Trans. p. 4). The court proceeded to the following exchange after the government's description of the plea agreement:
THE COURT: Counsel for the defendant, you've heard what the Assistant United States Attorney has said in regard to the significant or salient terms of the plea agreement; have you not heard that, sir?
MR. LAKE: I have heard that, your Honor.
THE COURT: Okay. And do you agree that those are the significant terms of the plea agreement? MR. LAKE: I do, your Honor.
THE COURT: And Mr. Flowers, you've heard what both counsel have said, counsel for the government and your counsel, have said in regard to the plea agreement? Have you not heard that?
THE DEFENDANT: Yes, sir.
THE COURT: Is that your understanding, also, of the agreement?
THE DEFENDANT: Yes, sir.
THE COURT: You've read it?
THE DEFENDANT: Yes, sir.
THE COURT: You understand it?
THE DEFENDANT: Yes, sir.
THE COURT: You've gone over it with your counsel?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Has anyone made any other or different promises to you than are set forth in the plea agreement?
THE DEFENDANT: No, sir.
(Dk. 1113, Trans. pp. 5-6). No further mention of the § 851 information was made during the change of plea hearing.
5. As reflected in the transcript from the change of plea hearing, the defendant pleaded guilty to count one of the superseding indictment and admitted he was in fact guilty of that charge. (Dk. 1113, Trans. p. 7). Count one of the indictment charged the defendant with conspiracy to manufacture and distribute controlled substances, including, but not limited to more than one kilogram of a mixture or substance containing methamphetamine.
6. At the change of plea hearing, the government also gave a lengthy description of the evidence it could offer at a trial of the defendant on count one. The government first referred to an intercepted telephone conversation in which the defendant told Shane Wright that he needed six to eight which was believed to be six to eight ounces of methamphetamine. Based on later intercepted calls, officers concluded that Flowers picked up only five ounces of methamphetamine from Wright during the first part of January of 2000. The government referred to another intercepted call in late January in which the defendant asked about getting more "cut" from Wright. The government also referred to the statement of Tracy Wright who told officers that the defendant was one of her husband's most significant customers and that she "had personally participated in at least 12 sales of methamphetamine to defendant, with no sale being less than an ounce at a time and usually more." (Dk. 1113, Trans. p. 14). Ms. Wright also indicated that she knew her husband had sold multi-ounce amounts of methamphetamine to the defendant on other occasions when she was not present.
7. During the change of plea hearing, the defendant indicated to the court that he disputed the weight of the purchases and insisted his purchases were typically measured in units of "eight-balls," not ounces. The defendant also told the court that except for the amount of methamphetamine involved, the government's description of the evidence was true. (Dk. 1113, Trans. pp. 15-16).
8. Before accepting the defendant's change of plea, the court referenced the plea agreement and read to the defendant the following from it:
THE COURT: All right, and do you see paragraph 1, the last couple or three words says plea of guilty to count 1 of the superseding indictment, see where I've read, then we go down a line and to the right there, there are two words, count 1 charges a violation of Title 21 Unites States Code section 846; do you see where I am?
MR. LAKE: Yes, your honor.
THE COURT: Okay. Then it goes on and says the maximum penalties for which are as follows: A term of imprisonment of not less than 20 years and not more than life, a fine of up to $8,000,000 or both, a term of supervised release of at least 10 years, and a special assessment of not less than $100. Now, what I have read is in the plea agreement, and do you understand, Mr. Flowers, that that's the penalty that could be imposed in this case?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Have you and your attorney had an opportunity to discuss the sentencing commission guidelines that will provide assistance to the court in sentencing?
THE DEFENDANT: Yes, sir.
(Dk. 1113, Trans. pp. 18-19).
9. During the change of plea hearing, the defendant and his counsel expressed no surprise nor disputed the government's representation about the § 851 information on file or the twenty-year mandatory minimum appearing in the plea agreement which was only possible in this case because a § 851 information was on file.
10. The court granted the defendant's request and appointed new counsel for him prior to sentencing. (Dk. 1378). The defendant, however, retained counsel, Larry Schaffer, who entered his appearance for the defendant on April 19, 2002. (Dk. 1405). The court extended the deadline for the defendant's new counsel to file sentencing objections.
11. Mr. Schaffer retained a sentencing guideline specialist who reviewed the presentence report initially disclosed to counsel and suggested possible objections. The specialist sent to Mr. Schaffer a memorandum of her suggestions that was dated May 8, 2002. The focus of the memorandum was with the objection that the relevant conduct findings on weight should be based on a substance or mixture of methamphetamine rather than actual methamphetamine. If successful on this objection, the defendant's adjusted offense level would have been lowered from 38 to 34. Even with this change, the specialist conceded the mandatory minium was applicable, and she suggested no objections that would have negated its application to the defendant. (Exhibit F-2). Mr. Schaffer understood the memorandum as saying they "probably weren't going to be successful in many attacks, if any."
12. As required by Fed.R.Crim.P. 32, Mr. Schaffer submitted his PSR objections to the probation officer. The objections addressed the relevant conduct calculations that had been based on actual methamphetamine rather than a mixture of it. Mr. Shaffer discussed these objections with the assistant United States attorney, Mr. Tony Mattivi, and they discussed a possible agreement that in exchange for the defendant withdrawing his objection to the PSR's use of actual methamphetamine, the government would join the defendant in recommending a sentence of no more than 240 months or the bottom of the guideline range as set by the mandatory minimum. Mr. Schaffer discussed this resolution with the defendant and wrote a letter to Mr. Mattivi establishing their written agreement on this matter.
13. The court sentenced the defendant to 240 months of imprisonment. During the sentencing, the court informed the defendant:
Both the Government and the Defendant are advised as to their respective rights to appeal this sentence and conviction. An appeal taken from this sentence is subject to 18 U.S.C. § 3742 and subject to any waiver in the plea agreement in this case. The Defendant is advised that it is your right to appeal the conviction and sentence and that you can lose your right to appeal if you do not timely file a notice of appeal in the district court.
Rule 4(b) of the Federal Rules of Appellate give you ten days after the entry of judgment to file a notice of appeal. If you so request, the Clerk of the Court shall immediately prepare and file a notice of appeal on your behalf. And if you are unable to pay the costs of an appeal, you have the right to apply for leave to appeal in forma pauperis.
(Dk. 1772, Trans. p. 34).
14. Outside the courtroom after the sentencing, the defendant asked his counsel, Mr. Schaffer, "Is there anything we can do?" Mr. Schaffer understood the question to be asking within the context and purpose for which he was hired if there was anything more he could do to lower the sentence. Mr. Schaffer answered that there were no options left and explained again the twenty-year mandatory minimum. The defendant did not use the word, "appeal" at any point during their discussion, and Mr. Schaffer did not understand the defendant's question or comments to be a request to file a notice of appeal. Mr. Schaffer said he would have filed a notice of appeal if the defendant had asked this of him or if he had understood the defendant to be making that request
15. Mr. Schaffer did not discuss with the defendant the advantages or disadvantages of filing a notice of appeal. He had been retained for the limited purpose of the sentencing and paid only for a certain number of hours. Mr. Schaffer continued to represent the defendant throughout the sentencing even though his hours of work exceeded the amount for which he had been compensated. Neither the defendant nor his family discussed hiring Mr. Schaffer to pursue an appeal. Because he continued to represent the defendant during the time period for filing an appeal, Mr. Schaffer conceded that he could have filed a notice of appeal and preserved the defendant's appellate rights. Mr. Schaffer, however, also offered that as a lawyer with more than twenty years experience practicing criminal law, he did not see any meritorious issue for an appeal and would not have been comfortable accepting representation for any appeal.
ANALYSIS AND CONCLUSIONS
Ineffective Assistance of Counsel
"An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "The right to counsel also extends to a defendant's first appeal as of right." Baker, 929 F.2d at 1498 (citing Douglas v. California, 372 U.S. 353 (1963)). To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). To show deficient performance, the defendant must show that his counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there was a reasonable probability that the outcome of his conviction and/or sentencing would have been different. Id. at 1245; see Strickland, 466 U.S. at 694.Failure to File Notice of Appeal
In his § 2255 pleadings filed pro se, the defendant alleges he expressed to Mr. Schaffer "his desire to appeal" but no notice of appeal was filed. (Dk. 1796, pp. 6, 7-8). The court heard nothing at the recent hearing to support this allegation. Indeed, the court finds no evidence that the defendant told his counsel to file a notice of appeal or that he directly expressed to his counsel any "desire to appeal."
As for what the defendant meant when he asked his counsel, "Is there anything we can do?", the court is not persuaded that this query to Mr. Schaffer should be construed as a request to file a notice of appeal. Mr. Schaffer reasonably did not understand this question to be such a request, as he had been retained only for the sentencing and they had never discussed any subsequent appeal. When Mr. Schaffer answered the query by saying there was nothing to do because of the mandatory minimum, the defendant accepted the response without any further questions. The defendant knew of his appeal rights having just been informed by the court. Counsel did not hear the defendant use the word, "appeal", in talking to counsel or with the defendant's family after the sentencing. Based on the defendant's two prior felony drug convictions, the court infers that the defendant was familiar enough with the judicial system that he could have told his counsel to file a notice of appeal if that had been his intention and desire. Finally, the defendant did not offer any evidence at the hearing to prove his intention or desire in asking the question was anything other than how Mr. Schaffer understood the question. The court concludes that the defendant did not expressly tell his attorney to file a notice of appeal. Thus, there is no factual basis for applying the rule argued by the defendant "that a lawyer who disregards specific instructions to perfect a criminal appeal acts in a manner that is both professionally unreasonable and presumptively prejudicial." United States v. Snitz, 342 F.3d 1154, 1155-56 (10th Cir. 2003) (citations omitted); see, Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.").
The present case, at best, is one where a defendant fails to convey clearly his wishes on filing a notice of appeal. The Supreme Court in Flores-Ortega articulated the following standard as governing such situations:
In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to convey a specific meaning-advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. (citation omitted). If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. . . . . . .
We cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense. . . .[F]or example, suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel's duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information. We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.
We instead hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. (citation omitted). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
. . . .
The second part of the Strickland test requires the defendant to show prejudice from counsel's deficient performance.
. . . .
. . . If the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief. Cf. Peguero v. United States, 526 U.S. 23 (1999) (defendant not prejudiced by court's failure to advise him of his appeal rights, where he had full knowledge of his right to appeal and chose not to do so). Accordingly, we hold that, to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.
The first step in the above analysis is whether defense counsel consulted with defendant about a possible appeal. There is no evidence that Mr. Schaffer did discuss the advantages and disadvantages of an appeal and did make a reasonable effort to learn the defendant's wishes about filing an appeal. Thus, the court finds that Mr. Schaffer did not consult with the defendant about an appeal.
Though appreciating the ideal of defense counsel routinely consulting their clients about an appeal, the Supreme Court found no such constitutionally imposed duty except where (1) a rational defendant would want to appeal because, for example, nonfrivolous grounds for an appeal existed; or (2) the particular defendant "reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega, 528 U.S. at 478. A failure to consult in these circumstances would constitute deficient performance. The Supreme Court explained that this inquiry is one involving the totality of the circumstances taking "into account all the information counsel knew or should have known." 528 U.S. at 480. The Court identified a "highly relevant factor" to be whether the defendant's conviction was the result of a guilty plea or trial. Id. When there was a guilty plea, the court also should consider whether the defendant received the bargained-for sentence and whether there was an express reservation or waiver of appellate rights. Id.
As the Supreme Court explained, this factor is highly relevant "both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings." Flores-Ortega, 528 U.S. at 480.
After showing his counsel's performance was deficient, then the defendant also must prove the second prong, that is, he was prejudiced because there is a reasonable probability the defendant would have appealed but for his counsel's deficiency. The Supreme Court recognized the similar inquiry employed in the deficiency and prejudice components, particularly in that both could be demonstrated with proof of non-frivolous grounds for appeal. 528 U.S. at 485-86.
The Supreme Court, however, said the inquiries were not "coextensive" as deficient performance could be proved by the defendant's expressed interests to his counsel. Id. To prove prejudice, a defendant need not articulate non-frivolous grounds for appeal, but he must adduce some evidence that he would have actually appealed had he been consulted. Id. In short, evidence of non-frivolous grounds for appeal need not be adduced to succeed on a § 2255 motion, but this evidence will suffice for proof of both components.
Analysis of these issues is somewhat difficult because counsel in this matter did not structure their arguments and presentations around the rules found in Flores-Ortega. Nonetheless, the court is convinced after considering the totality of the circumstances, including what defense counsel knew or should have known, that defense counsel was not deficient in failing to consult with the defendant about an appeal. First, the defendant's conviction was the result of a guilty plea, and his sentence was the mandatory minimum about which he was informed at the change of plea proceeding. The defendant's guilty plea was not conditional, and his sentence was what the defendant had expressly bargained for in the plea agreement.
Second, neither the defendant's retained counsel at sentencing nor his appointed counsel for the § 2255 hearing could articulate non-frivolous grounds for a direct appeal. Appointed counsel argued that the government failed to file and serve the § 851(a) information prior to the plea, that the court failed to conduct the § 851(b) inquiry, and that the defendant had expressed objections to the actual methamphetamine used in the PSR's relevant conduct findings. For the reasons discussed in the footnote below, these arguments are without any merit. Third, the court at the conclusion of the sentencing hearing fully informed the defendant of his rights to appeal his conviction and sentence. Based on these circumstances, the court concludes reasonable counsel would believe that the defendant did not have any non-frivolous issues to appeal and that the defendant did not desire to appeal.
The defendant is without a factual basis for challenging the service requirement of § 851(a). The counsel who represented the defendant at the plea proceeding testified that he could not recall specifically receiving the § 851 information but that he was not denying it had been telefaxed to him prior to the change of plea. The government furnished uncontroverted proof that the information had been telefaxed as so represented in the certificate of service. Defense counsel also testified that he did not contest the § 851 information during his representation of the defendant because, in part, he had no basis for doing so. As for whether the court complied with § 851(b) requirements during the change of plea proceeding, this issue is subject to harmless error analysis. United States v. Gonzalez-Lerma, 71 F.3d 1537, 1540-41 (10th Cir. 1995), cert. denied, 517 U.S. 1114 (1996). The defendant here does not argue that he would have raised a challenge to his prior conviction had the sentencing court warned him pursuant to § 851(b), nor does he address the likelihood of any success in making this challenge. In other words, the defendant is unable to allege any prejudice as a result of the court's omission. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1246-47 (10th Cir. 1996). Furthermore, the government at the change of plea proceeding represented that the defendant had two prior drug trafficking convictions which qualified for § 851 enhancement but that the government had agreed to file an information as to only one of the convictions. The defendant told the court at that time the government had represented their agreement as he understood it. The defendant's concession of the prior felony drug convictions as part of the plea agreement when coupled with the defendant's failure to assert any prejudice from the court's omission "renders harmless the district court's failure to comply with § 851(b)." United States v. Lopez-Gutierrez, 83 F.3d at 1246-47. Finally, the defendant's challenges to relevant conduct were not meritorious based on the uncontested facts appearing in the PSR and would not have changed the mandatory minimum sentence which he received. As for any argument that the defendant's plea was not knowing and voluntary, the record does not support this contention. The defendant appeared with counsel and indicated that he was aware of his rights, that he was satisfied with counsel's performance, that he read and understood the plea agreement and reviewed its terms with his counsel, that he had committed count 1 of the superseding indictment, that he understood what rights he was waiving, that what the government represented as its proof of count 1 was true except for the amount of drugs involved, that he faced a twenty-year mandatory minimum term of imprisonment which could be imposed in his case, that he had the right to appeal any sentence imposed, and that he signed the petition to enter a plea of guilty. Furthermore, the court found the defendant's plea to be made "freely, voluntarily, knowingly and understandingly." (Dk. 1113, Trans. p. 21).
Thus, the court finds that defense counsel was not deficient in failing to repeat this information about appellate rights to a defendant for whom this was third time he was sentenced for a felony drug conviction.
Even assuming defense counsel was deficient in not consulting about a possible appeal, the court finds that the defendant has not shown a reasonable probability of an appeal being filed but for his counsel's deficient performance. Non-frivolous grounds to appeal do not exist on the record. The defendant was fully informed at his change of plea hearing and at his sentencing of his right to appeal. The defendant received the mandatory minimum sentence which was the lowest sentence he could receive pursuant to the plea agreement absent a motion by the government for substantial assistance. The defendant withdrew all objections to the PSR in order to secure the government's recommendation that he receive the mandatory minimum sentence. The defendant has not shown a reasonable probability that he would have filed a notice of appeal had his defense counsel consulted with him. The court denies the defendant all requested relief on this claim of ineffective assistance of counsel.
Failure to Challenge the Compliance with § 851 Requirements
As also discussed in footnote two above, there is no merit to this allegation. Counsel were not ineffective for failing to challenge the government's compliance with § 851(a) requirements or for failing to challenge the court's compliance with § 851(b) requirements. The uncontroverted facts establish that the government complied with § 851(a) when it served by telefax a copy of the information on defense counsel prior to the defendant's entry of his plea. The court also finds that its omission of the § 851(b) inquiry and warning was harmless error. The defendant has not shown that his counsel's performance was completely unreasonable or that the outcome of his conviction or sentence would have been different but for his counsel's alleged errors. The defendant is not entitled to any relief on these allegations.
Failure to Object to Actual Methamphetamine in PSR
The defendant has not shown his counsel was unreasonable in withdrawing the relevant conduct objection in exchange for the government's recommendation that the court sentence the defendant to the mandatory minimum sentence. Even if the objections had been maintained and the court had ruled favorably on them, the defendant could not have received a sentence lower than the mandatory minimum that was imposed. On the other hand, the government could have argued for more relevant conduct or a sentence at the upper end of the guideline range, and the court could have sentenced the defendant to more than the mandatory minimum. The defense counsel was not unreasonable in withdrawing the relevant conduct objections, and the defendant has not shown any prejudice from the defense counsel's advice.
IT IS THEREFORE ORDERED that the defendant's motions to supplement (Dks. 1829 and 1889) are granted to the extent the authorities and arguments have been considered in this proceeding;
IT IS FURTHER ORDERED that defendant's pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 1795) is denied.