Opinion
Crim. Action 1:20-CR-87 Civil Action 1:23-CV-41
07-21-2023
THOMAS WINSTON, Petitioner, v. USA, Respondent.
Kleeh Judge
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On May 8, 2023, Thomas Winston (“petitioner), proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Civil Action Number 1:23-CV-41 Doc. 1; Criminal Action Number 1:20-CR-87 Doc. 75]. The matter is currently pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2. The undersigned now issues this Report and Recommendation on the petitioner's motion without requiring the Government to respond and without holding an evidentiary hearing. For the reasons stated below, the undersigned recommends that the District Judge deny and dismiss the petitioner's motion.
From this point forward, all document numbers refer to petitioner's criminal action.
II. PROCEDURAL HISTORY
A. Conviction and Sentence
On November 4, 2020, the United States Attorney filed an Indictment charging petitioner with possession of child pornography after having been previously convicted of an offense relating to the distribution and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). On February 2, 2022, Winston appeared before Judge Kleeh and entered a plea of guilty pursuant to a plea agreement. On May 19, 2022, Winston appeared before Judge Kleeh and was sentenced to a term of 235 months imprisonment, to be followed by a lifetime term of supervised release.
B. Appeal
Petitioner did not file an appeal from the judgment of his conviction.
C. Federal Habeas Corpus
On May 8, 2023, petitioner filed the instant petition. In his petition, petitioner raises two grounds challenging his conviction. First, petitioner argues that Judge Kleeh was biased against him; petitioner alleges that at sentencing Judge Kleeh stated “I feel you have not been punished enough in your past so I'm giving you the max.” [Doc. 75 at 5]. Second, petitioner asserts ineffective assistance of counsel: he states that his counsel did not represent him to the best of his ability, made promises that petitioner would be sentenced under ten years, was always on his phone, and told petitioner not to speak openly in Court. [Id. at 6].
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a prisoner may file a motion challenging the sentence imposed by a federal court, “if (1) the sentence violates the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum; or (4) the sentence ‘is otherwise subject to collateral attack.'” Beyle v. United States, 269 F.Supp.3d 716, 725 (E.D. Va. 2017) (quoting 28 U.S.C. § 2255(a)). “A sentence is ‘otherwise subject to collateral attack,' if a petitioner shows that the proceedings suffered from ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). “A petitioner bears the burden of proving one of those grounds by a preponderance of the evidence.” Id. (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). “If he satisfies that burden, the court may vacate, set aside, or correct the sentence.” Id. (citing 28 U.S.C. § 2255(b)). “However, if the motion, when viewed against the record, shows that the petitioner is entitled to no relief, the court may summarily deny the motion.” Id. (citing Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).
Further, under Rule 4 of the Rules Governing § 2255 Proceedings, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion....”.
Finally, this Court notes that pro se allegations are held to a less stringent standard than those drafted by lawyers and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978).
IV. ANALYSIS
As set forth above, petitioner pleaded guilty pursuant to a plea agreement. That plea agreement included the following waiver:
Defendant is aware that 18 U.S.C. § 3742 affords a Defendant the right to appeal the sentence imposed. Acknowledging this, and in exchange for the concessions made by the United States in the plea agreement, Defendant waives the following rights if the Court imposes the agreed-upon sentence set forth in Paragraph 6: ...
C. To challenge the conviction or the sentence which is within the maximum provided in the statute of conviction or the manner in which it was determined in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255.
Nothing in this paragraph, however, will act as a bar to Defendant perfecting any legal remedies he may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct. Defendant agrees that there is currently no known evidence of ineffective assistance or prosecutorial misconduct.[Doc. 53 at 4].
“[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison, 431 U.S. 63, 71 (1977). However, the advantages of plea bargains “can be secure . . . only if dispositions by guilty plea are accorded a great measure of finality.” Id. “To this end, the Government often secures waivers of appellate rights from criminal defendants as part of their plea agreement.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).
In United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), the Fourth Circuit found that “a waiver-of-appeal-rights provision in a valid plea agreement is enforceable against the defendant so long as it is the result of a knowing and intelligent decision to forgo the right to appeal.” The Fourth Circuit then found that whether a waiver is knowing and intelligent “depends upon the particular facts and circumstances surrounding [its making], including the background, experience, and conduct of the accused.” Id. After upholding the general validity of a waiver-of-appeal-rights provision, the Fourth Circuit noted that even with a waiver-of-appeals-rights provision, a defendant may obtain appellate review of certain limited grounds. Id. at 732. For example, the Court noted that a defendant “could not be said to have waived her right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.” Id. Nor did the Court believe that a defendant “can fairly be said to have waived his right to appeal his sentence on the ground that the proceedings following the entry of the guilty plea were conducted in violation of the Sixth Amendment right to counsel.” Id.
Subsequently, in Lemaster, the Fourth Circuit saw no reason to distinguish between waivers of direct appeal rights and waivers of collateral attack rights. Lemaster, 403 F.3d at 220. Therefore, like the waiver-of-appeal-rights provision, the Court found that the waiver of the right to collaterally attack a sentence is valid as long as it is knowing and voluntary. Id. And, although the Court expressly declined to address whether the same exceptions apply since Lemaster failed to make such an argument, the court stressed that it “saw no reason to distinguish between waivers of direct-appeal rights and waivers of collateral-attack rights.” Id. at n.2.
Here, the waiver petitioner signed effectively waived his right to bring claims other than for ineffective assistance of counsel or prosecutorial misconduct. Accordingly, Ground One of the petition should be dismissed. Further, the undersigned notes that even if the waiver did not apply, Ground One should be dismissed as frivolous. Petitioner's only basis for alleging bias on the part of Judge Kleeh is a statement that the Judge felt that petitioner had not been sufficiently punished in the past. Although a judge should disqualify himself from a proceeding in which his impartiality might reasonably be questioned, the source of the bias must be extrajudicial. See In re Beard, 811 F.2d 818, 827 (4th Cir. 1987) (“The alleged bias must derive from an extra-judicial source. It must result in an opinion on the merits on a basis other than that learned by the judge from his participation in the matter.”) (citation omitted).
Petitioner's second Ground, alleging ineffective assistance of counsel, is not subject to the waiver of collateral attack. Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that counsel's assistance was not reasonably effective, a defendant must satisfy a two-prong analysis: first, he must show both that counsel's performance fell below an objective standard of reasonableness and, second, that he was prejudiced by counsel's alleged deficient performance. Id. at 669.
When considering the reasonableness prong of Strickland, courts apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689; see also Gray v. Branker, 529 F.3d 220, 228-29 (4th Cir. 2008). This first prong requires the petitioner to “‘show that counsel's representation fell below an objective standard of reasonableness' measured by ‘prevailing professional norms.'” Lewis v. Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at 688). The court must judge counsel “on the facts of the particular case,” and assess counsel's performance “from counsel's perspective at the time.” Strickland, 466 U.S. at 689. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. When making an ineffective assistance of counsel determination, a court must consider “the practical limitations and tactical decisions that counsel faced.” Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir.1991).
To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. This second prong requires the petitioner to show that counsel's errors were serious enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. If it is clear the petitioner has failed to satisfy either prong of the Strickland standard, a court need not inquire into whether he satisfied the other.
Petitioner asserts four reasons he contends his counsel was ineffective: (1) that his counsel did not represent him to the best of his ability; (2) that his counsel promised a sentence under ten years; (3) that his counsel was always on the phone in Court; and (4) that his counsel told him not to speak openly in Court. The undersigned finds that petitioner is unable to satisfy the Strickland prongs. Petitioner's first, third, and fourth are vague and provide no basis for establishing either prong. Assuming, arguendo, that petitioner could establish that his counsel's representation fell below an objective standard of reasonableness by failing to do his best, being on his phone, and telling petitioner to restrict his in-court responses to “yes” and “no,” petitioner has not alleged any resulting prejudice.
As to petitioner's allegation that his counsel promised petitioner that he would be sentenced to under ten years, the record makes clear that petitioner was clearly informed of the potential sentence he faced. First, the plea agreement petitioner signed clearly stated that “The maximum penalty for Count One, to which defendant will be exposed by virtue of his plea of guilty, as stated in paragraph 1 above, is: imprisonment for a period of not less than (10) ten years, and not more than (20) twenty years.” [Doc. 53 at 1]. Thus, the plea agreement clearly informed petitioner that by pleading guilty his sentence was guaranteed to be at least ten years. Further, at the plea hearing, Judge Kleeh likewise informed petitioner that he faced a sentence of not less than ten years and not more than twenty years. [Doc. 56 at 2]. Further, the allegation in this ground is contradicted by petitioner's earlier representations at the plea hearing. At that hearing, petitioner indicated to Judge Kleeh that his plea was not the result of any promises except those contained in the plea agreement. [Id. at 3]. Accordingly, the undersigned finds that petitioner is unable to establish any prejudice as to the alleged promise.
V. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Civil Action Number 1:23-CV-41 Doc. 1; Criminal Action Number 1:20-CR-87 Doc. 75] be DENIED and DISMISSED with prejudice.
Within fourteen days after service of this Report and Recommendation, the petitioner may file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is DIRECTED to transmit copies of this Order to any counsel of record herein. In addition, because this Report and Recommendation completes the referral from the District Court, the Clerk is DIRECTED to terminate the Magistrate Judge association with this case.