Opinion
3-00-CR-335-R(01), (3-02-CV-37-R)
July 16, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a motion to vacate, set aside or correct sentence brought by a federal prisoner pursuant to 28 U.S.C. § 2255.
Parties: Movant Randy K. Massey is presently confined at the Federal Correction Institution in Seagoville, Texas.
Statement of the Case: On August 22, 2000, Movant was charged in a one-count indictment with uttering a counterfeit security in violation of 15 U.S.C. § 513(a). While on pretrial release, the Government filed a criminal complaint charging Movant with uttering forged checks. Movant was re-arrested and on November 2, 2000, a superseding two-count indictment was filed charging him with the original count along with a second count for uttering a forged security while on pre-trial release in violation of 18 U.S.C. § 513(a) and 3147. On February 8, 2001, Movant pled guilty to Count 1 of the superseding indictment and on June 15, 2001, the District Court sentenced him to twenty-one months imprisonment, a three-year term of supervised release, and restitution in the amount of $113,903.71. Count 2 of the indictment was dismissed on the Government's motion. Contemporaneously with the entry of the judgment of conviction, Movant filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. A few days later, his appointed counsel filed a notice of appeal. Thereafter, the District Court dismissed the § 2255 motion without prejudice due to the pendency of the direct appeal, and the Fifth Circuit dismissed the direct appeal on the basis of Movant's voluntary motion to dismiss.
In this § 2255 motion, filed on January 4, 2002, Movant raises six grounds of ineffective assistance of counsel. The Government filed a response on March 14, 2002.
Findings and Conclusions: To establish ineffective assistance of counsel in the context of a guilty plea, a defendant must demonstrate (1) that counsel's performance was deficient, and (2)(2) that there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985); Stickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). A court need not address both components of this inquiry if the defendant makes an insufficient showing on one. Strickland, 466 U.S. at 697.
In his first ground, Movant alleges counsel was ineffective for misrepresenting that the 12-18 month sentencing range stipulated at the time of his plea was not the "actual" range for his sentence. (See § 2255 motion at "Addendum A"). Massey cannot establish that the sentence calculations set out in the Stipulation of Applicable Guidelines, which he, himself, signed along with the Plea Agreement, were binding on the District Court. The Stipulation of Applicable Guidelines specifically stated that the "Defendant understands that this calculation is not binding on the Court and that the Court will do its own calculation that may differ from these." (See Stipulation of Applicable Guidelines, filed on January 29, 2001, at 1) (emphasis added). The Plea Agreement also reflected that "[t]here was a agreement as to what the sentence will be imposed." A Plea Agreement, filed on January 29, 2001, at 2) (emphasis added). Similarly, at his rearraignment, Movant affirmed that the 12-18 month range set out in the Stipulation of Guidelines would not be binding on the District Court, that he could face a maximum sentence of ten years imprisonment, and that the Court would determine his sentence after a presentence report had been prepared. (See Rearraignment Tr. at 16-17, and 5-6) (emphasis added).
Movant's contention that counsel misled him to believe that the 12-IS month sentence range was binding is contradicted and refuted by the signed stipulation and by his statements before the court on January 29, 2001, which precludes relief on this claim.
Movant's second ground is wholly conclusory. Movant alleges counsel failed to disclose evidence favorable to him. He states that he begged his counsel "to show [him] evidence including specific documents necessary to assist another federal agency . . . in hopes of attaining greater credit in the expected 5K.1 Motion." (See § 2255 Motion at Addendum B). Movant does not specify what evidence might have existed which was favorable to him; nor that any evidence was withheld from him.
Next Movant alleges counsel was ineffective in connection with his confession statements. The first statement, which counsel gave him, was a copy of an unsigned typewritten confession with Miranda warnings. (§ 2255 Motion at Addendum B). Six months later counsel gave him a second statement, which Movant now alleges was coerced and involuntary. (Id.). Movant provides neither a copy of the unsigned statement nor evidence to support the alleged coercion during the signing of the second statement. Even assuming counsel was deficient in failing to file a motion to suppress either statement, Movant does not assert that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial on both counts. Hill, 474 U.S. at 57-59.
In his third ground, Movant alleges counsel (1) refused to talk to him or respond to his letters during the three-month period preceding sentencing, and (2) misrepresented that he would not be responsible for restitution on Count II — the dismissed count. (See § 2255 motion at Addendum C). Movant's allegations that counsel failed to remain in contact for three months before sentencing do not present a cognizable claim. Regarding counsel's misrepresentation of the restitution amount, that claim falls "outside the scope of 28 U.S.C. § 2255," which provides for release from custody, not for correction of an allegedly improper restitution order. United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994) (holding that person in custody cannot bring an ineffective assistance claim in a § 2255 motion challenging a fine because that person is not "claiming the right to release" from custody); see also United States, 161 F.3d 1341, 1342-43 (11th Cir. 1998) (§ 2255 motion cannot be used to challenge only restitution portion of a sentence); Barickel v. United States, 113 F.3d 704, 705-706 (7th Cir. 1997) (same); Smullen v. United States, 94 F.3d 20, 25-26 (1st Cir. 1996) (same); United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996) (cash-fine challenge not cognizable under § 2255); United States v. Irwin, 2001 WL 839724, *1 (E.D. La. July 20, 2001) (challenge to restitution amount not cognizable under § 2255).
In his fourth ground, Movant alleges counsel erred in "promis[ing] me the possibility of a 5K.1 [downward departure for substantial assistance], not a Rule 35 [motion]," if he met with "an IRS Special Agent regarding crimes committed by the company in which I had worked for a long time." (See § 2255 motion at Addendum D). Although he met with an IRS Special Agent for over two hours, Movant contends the "5K.1 [downward departure] was never a possibility" because the agent told his father that he would never have been able to discuss with the court or the prosecutor any of the information which Movant had given him. (Id).
Movant's own choice of words reflects that a § 5K.1 departure for substantial assistance was nothing more than a "possibility," rather than a promise from his counsel. He submits no evidence in support of his contention that counsel actually promised a § 5K.1 departure, which would have been beyond his control in any case. See United States v. White 869 F.2d 822, 829 (5th Cir. 1989) (a § 5K.1 departure for substantial assistance may not be made absent a motion by the government). Therefore, Movant's fourth ground is wholly unsupported and patently frivolous.
His fifth ground fares no better. He alleges counsel was ineffective during the rearraignment hearing for failing to advise the court that he was "heavily medicated" and "not medically or emotionally competent for any hearing." (§ 2255 Motion at Addendum E). Movant has provided no evidence that at the arraignment hearing he was under the influence of any drugs or medication, or under the care of a doctor. His sworn testimony to the contrary at the rearraignment hearing (Rearraignment Tr. at 7) carries a strong presumption of veracity in this federal habeas proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); United States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991).
In his sixth ground, Movant complains counsel "maliciously filed a direct appeal without [his] knowledge or consent," although he knew Movant had filed a § 2255 motion shortly after sentencing. (See § 2255 Motion at Addendum F). Contrary to Movant's contention the plea agreement waived his right to a direct appeal as long as his "sentence [did] not exceed the maximum sentence corresponding to the offense level calculated in the Stipulation of Applicable Guidelines . . ." (Plea Agreement ¶ 8). Since his twenty-one month sentence exceeded the stipulated-imprisonment range of 12-18 months, Movant retained his right to a direct appeal. Accordingly, counsel's decision to file a notice of appeal was not deficient, nor is any prejudice shown, particularly where his direct appeal was dismissed on his motion.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District court deny Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
A copy of this recommendation will be mailed to Movant and counsel for the Government.