United States of America v. Simpson (INMATE3)

Filing 49

OPINION. An appropriate judgment will be entered. Signed by Honorable Myron H. Thompson on 10/19/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DARRELL SIMPSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:04cv746-MHT (WO)

OPINION Pursuant to 28 U.S.C. § 2255, petitioner Darrell Simpson, a federal inmate, filed this lawsuit seeking habeas relief. This lawsuit is now before the court on

the recommendation of the United States Magistrate Judge that Simpson's writ petition be granted as follows: That

his sentence of 488 months be vacated and that Simpson be re-sentenced in accordance and manner consistent with the original plea agreement. Also before the court are

respondent United States of America's objections to the recommendation. After an independent and de novo review

of the record, the court concludes that the government's objection should be overruled and that the magistrate judge's recommendation adopted, albeit with these

additional comments. The government objects to the magistrate judge's recommendation on two grounds. First, it argues that,

under former Federal Rule of Criminal Procedure 11(f), a district court may vacate a guilty plea sua sponte where a defendant denies his guilt as to the relevant facts in the plea agreement. Therefore, attorney Maurice Bell's

failure to object to the district court's sua sponte vacatur of Simpson's guilty plea was not deficient

representation. Second, the government argues that, even if attorney Deborah M. Nickson failed to advise Simpson that the original plea was still available, it is

undisputed that she did communicate a plea offer to Simpson immediately prior to trial. The government

contends that, "if Simpson were as eager for a plea deal as his pleadings and testimony indicate he was, he would

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have

inquired

as

to

the

terms

of

the

offer--any In

offer--upon hearing of an alternative to trial."

addition, the government argues that the magistrate judge failed to declare formally that Nickson was ineffective as to her communication with her client. For the reasons stated by, and based on the factual finding of, the magistrate judge, the court is convinced that attorney Bell provided ineffective assistance of counsel. While courts have interpreted former Rule 11(f)

to state that acceptance of the guilty plea does not foreclose a subsequent rejection of the plea if factual questions emerge, for example at sentencing, it cannot be read to authorize the court to vacate a plea on the basis of a discrepancy in the parties' understanding of the plea agreement. The Supreme Court has held that "a

district judge satisfies the requirement of Rule 11(f) when he determines that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which

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the defendant has pleaded guilty."

Libretti v. United

States, 516 U.S. 29, 38 (1995) (citation and internal quotation marks omitted). In protesting at his

sentencing hearing, Simpson was not asserting facts that tended to negate his guilt with respect to the charge to which he had pleaded guilty, nor was he claiming that he was innocent of that charge. Instead, the transcripts

clearly indicate that he admitted to the sentencing judge that he was guilty for selling 20 grams of cocaine. Bell's failure to object to the trial judge's sua sponte vacatur of Simpson's guilty plea constituted performance that fell below an objective standard of reasonableness. The government's second objection is premised on the argument that Simpson was unable to prove that he was prejudiced by Bell's failure to object to the trial judge's vacatur of the plea because attorney Nickson communicated a plea offer to Simpson immediately prior to trial that he rejected. The government argues, as

stated, that, "if Simpson were as eager for a plea deal

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as his pleadings and testimony indicate he was, he would have inquired as to the terms of the offer--any The

offer--upon hearing of an alternative to trial."

magistrate judge is somewhat unclear in addressing this concern, and the court now makes explicit what may be only implicit. In order for Simpson to demonstrate that he was prejudiced by Bell's inaction, he would need to prove that he was never informed of the availability of the original plea agreement prior to trial. If Simpson was

informed that the original plea continued to be available after Bell's failure to object and prior to trial and he chose not to accept it, then he was not prejudiced. However, if Simpson was not informed of the availability of the original plea, then the court must address the government's argument that the fact that he was informed of the availability of a plea, and did not pursue it any further, demonstrates that he was not prejudiced by

Bell's failure to object.

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The issue of Simpson's knowledge of the availability of the original plea goes to the credibility of the witnesses at the evidentiary hearing before the

magistrate judge.

It is undisputed that Simpson was

illiterate from the beginning of the proceedings through trial; therefore, the only way in which he could have learned about the content of the plea agreement was through his counsel. In the hearing, testimony that Simpson regarding the and Nickson offered ever still

conflicting informed

whether

Nickson was

Simpson

original

plea

available prior to trial. Simpson's government, chambers. trial, and

It is undisputed that prior to the judge attorney had a for meeting the in

Nickson, the trial

In that meeting, the trial judge instructed

Nickson that, if Simpson wanted to plead in accordance with the terms offered by the government in the plea agreement vacated earlier, the court would accept a plea that morning.

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Simpson testified that, two weeks prior to this meeting, he saw the videotape of the drug transaction. At that point, he determined that the jury would find him guilty. Simpson did not see a way to avoid conviction

and therefore he told Nickson that, since he had been forced to go to trial, he wanted to admit his guilt to the jury on the stand and let the jury know that he "pled guilty before." Nickson responded, "That's crazy," and She told him

told Simpson not to worry about the tape.

that she was "going to get the tape thrown out" because the chain of custody had been broke. Without fully

understanding what she meant when describing the break in the chain of custody, Simpson told Nickson that,

"Whatever you're going to do, just do it." On the day of trial, Nickson informed Simpson that the government offered him a plea. "What did they say?" Simpson responded,

Nickson told him, "Don't even worry

about it, because I know you're not going to accept it." Simpson testified that he never knew that the original

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plea was still on the table prior to trial until he read Nickson's affidavit filed after the trial in response to Simpson's motion to vacate the sentence. The court agrees with the magistrate judge's

credibility findings as to the testimony of Simpson and Nickson, in particular that Nickson was not credible because of her selective failure of memory as The have

demonstrated throughout the evidentiary hearing. court therefore concludes that Simpson would

accepted the renewed offer of the original plea if he had known of its availability. Specifically, Simpson

testified that prior to trial he knew that a jury would find him guilty based on the videotape and audiotape evidence. Knowing this, he asked Nickson if he could

admit his guilt on the stand at trial and explain that he had been forced to go to trial by the court's withdrawal of his guilty plea. that, if he had Based on this testimony, it is clear known that the original plea was

available, he would have accepted it.

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The government, nevertheless, asserts that Simpson's admitted failure to pursue a plea agreement, even if he was not informed that it was the original plea agreement, demonstrates that he did not intend to plead guilty under any circumstances. In particular, the government argues

that, "if Simpson were as eager for a plea deal as his pleadings and testimony indicate he was, he would have inquired as to the terms of the offer--any offer--upon hearing of an alternative to trial." so, the government argues, shows His failure to do that he was not

prejudiced by Bell's failure to object to the trial judge's sua sponte vacatur of the original plea

agreement. According to Simpson's credible testimony, when

Nickson told him that the government offered him a plea, he inquired as to the details. Nickson, "What did they say?" inquiry, Nickson preemptively He specifically asked In response to this rejected the plea by

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telling Simpson, "Don't even worry about it, because I know you're not going to accept it." Given that Nickson had already advised Simpson in their initial interview that the plea agreement vacated by the trial judge was a fair offer, it was reasonable for Simpson to conclude, based on Nickson's preemptive rejection of the plea, that the plea offered by the government had less favorable terms than the original and not to pursue the offer any further. Therefore,

Simpson's failure to pursue further the plea agreement preemptively rejected by Nickson does not demonstrate that he did not intend to plead guilty on the basis of the original terms. Instead, his inquiry to Nickson

regarding the terms of the plea agreement indicates his willingness to pursue such a course, particularly if he had known that the original plea agreement was still on the table.

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The court finds that Simpson was prejudiced by Bell's failure to object to the trial judge's vacatur of the plea agreement. The court also agrees with the magistrate judge's, and so finds, that Nickson provided ineffective

assistance of counsel by failing to inform Simpson of the terms of the plea offered by the government and that Simpson was prejudiced by this failure. An appropriate judgment will be entered. DONE, this the 19th day of October, 2009.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE