Jones v. United States of America

Filing 8

MEMORANDUM OF OPINION AND ORDER For the reasons stated within, Jones' § 2255 motion is hereby DENIED insofar as it relates to his claims that (1) this Court violated Rule 11 in accepting his guilty plea because his guilty plea did not cont ain a sufficient factual basis and (2) his trial counsel was ineffective by coercing him into pleading guilty. Jones' claim of ineffective assistance of counsel as it relates to his direct appeal is hereby RESERVED for an evidentiary hearing, date, time and place to be set by separate order. The Clerk is directed to mail a copy of the foregoing to Jones. Signed by Judge L Scott Coogler on 11/6/2017. (PSM)

FILED
2017 Nov-06 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TREY LAPATRICK JONES,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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7:16-cv-8162-LSC
(7:16-cr-000001-LSC-TMP-1)

MEMORANDUM OF OPINION AND ORDER
Petitioner Trey Lapatrick Jones (“Jones”) filed with the Clerk of this Court
a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
(Doc. 1.) The Government opposes the motion. (Doc. 7.) For the following
reasons, the motion is due to be denied and dismissed in part and reserved for an
evidentiary hearing in part.
I.

Background
On July 30, 2015, the Government indicted Jones on one count of possessing

a firearm after he had previously been convicted of a felony offense, in violation of
18 U.S.C. § 922(g). See Doc. 1 in United States v. Jones, 7:15-cr-00248-LSC-TMP1. The Office of the Federal Public Defender was appointed to represent him at
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that time. Jones was released on bond. Jones had previously been convicted of three
counts of unlawful distribution of a controlled substance in the Circuit Court of
Tuscaloosa County, Alabama. Because the three offenses occurred on three
separate occasions, and the convictions are considered “serious drug offenses,”
Jones likely would have been subject to the penalty enhancements under 18 U.S.C.
§ 924(e), commonly referred to as the Armed Career Criminal Act, if he had been
convicted on the indictment. That enhancement penalty would have subjected
Jones to a 15-year mandatory minimum term of imprisonment. Trial was set in that
case for January 4, 2016.
In the weeks leading up to trial, the Government offered Jones an
opportunity to plead guilty to a one-count information to violating 18 U.S.C. §
922(j), which criminalizes knowing possession of a stolen firearm. Such a plea had
the potential to benefit Jones because a conviction under 18 U.S.C. § 922(j) did not
carry with it the potential for the 15-year mandatory minimum sentencing
enhancement. According to Jones’ appointed trial counsel, Assistant Federal
Public Defender Glennon Threatt, Jones originally refused the Government’s
offer. See Glennon Threatt Affidavit, Doc. 7-1.1 The night before trial, however,

The Government submitted Mr. Threatt’s affidavit in support of its response in
opposition to Jones’ § 2255 motion. This Court previously ruled that Jones waived the attorneyclient privilege on the matters referenced in his § 2255 motion by claiming in the motion that Mr.
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Jones apparently changed his mind and agreed to accept the Government’s offer.
See id.
The next day, on January 4, 2016, the Government filed an information
charging Jones with possessing a stolen firearm in violation of 18 U.S.C. 922(j);
Jones signed a plea agreement; and Jones entered a plea of guilty in open court. See
Docs. 1 (Information), 2 (Plea Agreement), and 22 (Transcript of Plea Proceeding)
in United States v. Jones, 7:16-cr-00001-LSC-TMP-1. At that time, this Court
advised Jones of the rights he was waiving pursuant to the guilty plea and the
consequences of waiving those rights. The plea agreement contained a factual basis
in which Jones admitted that: (1) on the night of June 9, 2013, he was driving a car
with a broken taillight when Tuscaloosa Police Department officers pulled him
over; (2) when the officers approached the vehicle he was driving, they saw a .45
caliber, semi-automatic pistol on the floor of the driver’s seat, behind Jones; (3) the
gun had been stolen from the home Jones’ brother shared with his then-fiancé; (4)
the gun belonged to the fiancé’s brother, who had reported it stolen; and (5) Jones
had pled guilty to possessing the firearm in a car without a permit in Tuscaloosa
Municipal Court. The plea agreement also contained an appeal waiver with
exceptions for claims of ineffective assistance of counsel, claims of any sentence
Threatt’s performance was ineffective. See Doc. 6; see also Mincey v. Head, 206 F.3d 1106, 1119
n.13 (11th Cir. 2000).
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imposed in excess of the applicable statutory maximum sentence, and claims of any
sentence imposed in excess of the advisory guideline sentencing range.
This Court sentenced Jones on April 25, 2016, to a term of imprisonment of
46 months followed by a term of supervised release of 36 months. The indictment
in case number 7:15-cr-00248-LSC-TMP-1 was dismissed at sentencing as agreed
under the terms of the plea agreement. Judgment was entered on April 26, 2016.
Jones, through his appointed trial counsel, filed a timely Notice of Appeal of
his conviction and sentence with the Eleventh Circuit Court of Appeals.
Thereafter, two additional attorneys, Assistant Federal Public Defenders Allison
Case and Sabra Barnett, appeared on behalf of Jones, presumably to represent him
on direct appeal. However, roughly two weeks later, Jones, through the Federal
Public Defender’s Office, moved to voluntarily dismiss his appeal pursuant to
Federal Rule of Appellate Procedure 42. The Eleventh Circuit granted that request
dismissed Jones’ appeal on June 1, 2016.
Jones filed the instant § 2255 motion, pro se, on December 5, 2016.
II.

Discussion
Section 2255 permits a federal prisoner to bring a collateral challenge by

moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C.
§ 2255(a). Once a petitioner files a § 2255 motion, “[u]nless the motion and the

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files and records of the case conclusively show that the prisoner is entitled to no
relief, the court shall . . . grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). A
petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true,
would entitle him to relief.” Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir.
2002). “[A] petitioner need only allege—not prove—reasonably specific, nonconclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However,
this Court need not hold a hearing if the allegations are “patently frivolous,”
“based upon unsupported generalizations,” or “affirmatively contradicted by the
record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989); see, e.g.,
Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . .
affidavits submitted by Lynn amount to nothing more than mere conclusory
allegations, the district court was not required to hold an evidentiary hearing on the
issues and correctly denied Lynn’s § 2255 motion.”).
Jones asserts several grounds for relief. First, he claims that this Court
committed plain error by accepting his guilty plea in violation of Rule 11 of the
Federal Rules of Criminal Procedure because his guilty plea was not supported by a
sufficient factual basis. Second, he claims that he received constitutionally
ineffective assistance of counsel because his trial counsel coerced him into pleading

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guilty against his will. Additionally, although he does not state it as an official third
“claim,” he asserts several times throughout his motion that his appointed direct
appeal counsel withdrew his appeal without his knowledge or authorization.
A.

Jones’ claim that this Court plainly erred in accepting his guilty
plea because it did not contain a sufficient factual basis

The entirety of Jones’ first claim for relief is as follows:
The District Court committed PLAIN ERROR by accepting a guilty
plea in direct contravention of Rule 11. . . . The District Court made a
finding of guilt in contravention of the PHYSICAL EVIDENCE and
available WITNESS TESTIMONY. The Court commits PLAIN
EROR by departing from Court Rule that requires the District Court
to determine that a “FACTUAL BASIS EXISTS.” This Court
accepts a guilty plea for the sole purpose of bolstering the Judicial
District’s budget quota, this is PLAINLY SEEN where the Petitioner
enters the agreement before he is even charged.
(Doc. 1 at 4 (emphases in original)).
Notwithstanding the fact that this claim would arguably be barred by the
appeal waiver in Jones’ plea agreement, this claim is also frivolous on its face. The
factual basis in the plea agreement plainly provided a sufficient basis to support
Jones’ guilty plea to possession of a stolen firearm. Jones tries now to claim that the
Court’s decision to accept the plea was in contravention of the physical evidence
and witness testimony, but the Court heard no testimony and saw no physical
evidence other than the agreed-upon stipulated facts in the plea agreement that
Jones signed and orally stipulated to in open court. The Court explicitly warned
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Jones of the consequences of entering his plea and gave him an opportunity to
proceed to trial. See Doc. 22 (Transcript of Plea Proceeding) in United States v.
Jones, 7:16-cr-00001-LSC-TMP-1. Jones elected to plead guilty and admitted to the
factual basis contained in the plea agreement. See id. “There is a strong
presumption that statements made [by the defendant] during the colloquy are
true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). “[W]hen a
defendant makes statements under oath at a plea colloquy, he bears a heavy burden
to show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th
Cir. 1988). An evidentiary hearing is not warranted on this claim because Jones’
allegation is “based upon unsupported generalizations” and “affirmatively
contradicted by the record.” Holmes, 876 F.2d at 1553.
B.

Jones’ claim that he received constitutionally ineffective
assistance of counsel because trial counsel coerced him into
pleading guilty

Jones makes serious accusations against his trial counsel and other attorneys
working in the Federal Public Defenders Office. He claims that his trial counsel
“coerced [him] to plea[d] guilty in an effort to assist the Government to perpetuate
FRAUD;” that his trial counsel “commits a CRIME against the people of the
Northern District of Alabama by assisting the Government to incarcerate
INNOCENT PEOPLE in an effort to bolster the Northern District of Alabama’s

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judicial budget;” and that his trial counsel and other defense attorneys routinely
commit fraud and obstruct justice in other cases. See Doc. 1 at 7-8 (emphases in
original).
Jones waived certain rights when he entered into his guilty plea, but he did
not waive the right to raise a claim of ineffective assistance of counsel on appeal or
on collateral attack. Moreover, claims of ineffective assistance of counsel may be
raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500,
504 (2003).
The Sixth Amendment guarantees the right to effective assistance of counsel
in all criminal prosecutions. Yarborough v. Gentry, 540 U.S. 1, 4 (2003). The
standard applicable to claims of ineffective assistance of counsel in post-conviction
motions is well-established: relief will not be granted unless the petitioner can show
not only that counsel’s performance was deficient but also that such deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). More specifically, the movant must show that: (1) his counsel’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 687-88. The court need not
“address both components of the inquiry if the defendant makes an insufficient

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showing on one.” Id. at 697. In determining whether an attorney’s performance fell
below the objective standard of reasonableness, the court is highly deferential to
counsel’s decisions and must keep in mind that “a fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged performance,
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.
The court must also indulge a strong presumption that counsel’s performance falls
within the “wide range of reasonable professional assistance.” Id. When seeking to
overcome this presumption, a movant cannot rely on bare accusations and
complaints, but instead “must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690.
Strickland’s two part standard is applicable to ineffective-assistance claims
arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). With
regard to the prejudice prong in the context of a guilty plea, the defendant must
show “that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Id. at 59.
Jones’ claim that his plea was not knowing and voluntary because his trial
counsel coerced him into pleading guilty is wholly contradicted by his own
statements in the record. Jones swore in court that he had not been threatened or

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coerced by anyone, that he was satisfied with his attorney’s performance, and that
he knew and understood that he had the right to plead not guilty and proceed to
trial. See Doc. 22 (Transcript of Plea Proceeding) in United States v. Jones, 7:16-cr00001-LSC-TMP-1; see also Medlock, 12 F.3d at 187 (strong presumption that
statements made by a defendant during a plea colloquy are true); Rogers, 848 F.2d
at 168 (a defendant faces a heavy burden to prove the statements he made under
oath at a plea colloquy were false). Jones’ trial counsel has also denied under
penalty of perjury any forms of threat or coercion and has set forth the efforts he
made to help Jones avoid the likelihood of a 15-year mandatory minimum sentence
by pleading guilty to the possession of s stolen firearm count. See Doc. 7-1.
In support of this claim, Jones attaches to his § 2255 motion two affidavits,
one from an individual named Antonio Jones and one from an individual named
Tanisha Todd. See doc. 1 at 13-15. Antonio Jones states in his affidavit that he told
Mr. Threatt that the gun in the car was “his responsibility” and that Trey
Lapatrick Jones was not aware that the gun was in the car. See id. at 15. Tanisha
Todd states that she was present when Mr. Threatt “threatened that Trey Jones
would be sentenced to 15 years if he didn’t plea[d] guilty” and that Antonio Jones
told Mr. Threatt that he placed the gun in the car and that Trey Lapatrick Jones
had no knowledge of its presence in the car. See id. at 13. These affidavits do not

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serve to explain why Jones’ sworn testimony in court during his plea proceeding
that no one had influenced or coerced him into pleading guilty should now been
deemed false. Plea bargaining retains its benefits of certainty and efficiency “only if
dispositions by guilty plea are accorded a great measure of finality.” Blackledge v.
Allison, 431 U.S. 63, 71 (1977). “[T]he representations of the defendant, his lawyer,
and the prosecutor at [a plea] hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings.” Id. at 73–74 (explaining that if the record reflects the procedures of
plea negotiation and includes a verbatim transcript of the plea colloquy, a petitioner
challenging his plea will be entitled to an evidentiary hearing “only in the most
extraordinary circumstances”). “The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.” Id. at 74.
In sum, Jones’ allegation of ineffective assistance of counsel is without merit
because he has not alleged facts that demonstrate deficient performance by
counsel, nor has he demonstrated sufficient prejudice as to his claim. An
evidentiary hearing is not warranted because Jones’ allegation is “based upon
unsupported generalizations” and is “affirmatively contradicted by the record.”
Holmes, 876 F.2d at 1553.

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C.

Jones’ claim that his direct appeal counsel withdrew his appeal
without his knowledge or authorization

While not laid out as a separate claim for relief, Jones references this
allegation several times throughout his § 2255 motion. See Doc. 1 at 2 (“Defense
Counsel withdrew appeal without client’s authorization”); 5-6 (“Upon being
found guilty, the Petitioner gave Notice of Appeal. Appealable issues included
impropriety of the Federal Public Defender’s Office. While the Petitioner was in
transit, the Federal Public Defender’s Office appointed Counsel to the Petitioner’s
case.

Appointed

Appellate

Counsel

then

FORGED

a

VOLUNTARY

WITHDRAW OF APPEAL.”); 8 (“Kevin Butler and Sabra Barnett engage in
activities that are CLEARLY inconsistent with the Constitution’s Effective
Assistance Guarantee, by FALSIFYING an Appeal Withdraw in the name of the
Petitioner when he was in transit and without the Petitioner’s knowledge and/or
authorization.”) (emphases in original).
The Government has declined to address the merits of this allegation. See
Doc. 7 at 5 n.1 (“Such wild accusations . . . are baseless, unsubstantiated, and
unworthy of further comment or response by the government.”). Nor has the

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Government offered an affidavit from the attorney who moved to withdraw the
appeal, if he or she was an attorney other than Mr. Threatt. 2
Nonetheless, the appellate record indeed shows that the Office of the
Federal Public Defender moved to withdraw Jones’ appeal thirteen days after it
was noticed. The motion to dismiss the appeal, which was not opposed by the
Government, states that Jones “informed counsel that he desires to voluntarily
dismiss this appeal.” Jones now asserts that this is not true and that he would have
raised on appeal the “impropriety of the Federal Public Defender’s Office,”
among other claims. See Doc. 1 at 5.
A criminal defense lawyer is not under a per se constitutional obligation to
consult with his or her client about an appeal. Otero v. United States, 499 F.3d 1267,
1270 (11th Cir. 2007). The Supreme Court has rejected such a bright-line rule as
“inconsistent with Strickland’s holding that the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.”
Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). Rather than adopt an inflexible rule,
the Court has found that there is only a “constitutionally imposed duty to consult
with the defendant about an appeal when there is a reason to think either (1) that a
rational defendant would want to appeal (for example, because there are nonThe motion to withdraw the appeal is signed by only Kevin Butler, the Federal Public
Defender for the Northern District of Alabama.
2

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frivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Id. at 480. In
determining whether there was a duty to consult, courts should consider (1)
whether the conviction follows a guilty plea, (2) whether the defendant received
the sentence he or she bargained for, and (3) whether the plea agreement expressly
waived some or all appeal rights. Id.
However, the Eleventh Circuit has also held “that a lawyer who disregards
instructions from his client to appeal has acted ‘in a manner that is professionally
unreasonable.’” Gomez-Diaz v. United States, 433 F.3d 788, 789 (11th Cir. 2005)
(quoting Flores-Ortega, 528 U.S. at 477). In that situation, the petitioner does not
have to establish prejudice beyond showing that but for counsel’s deficient
conduct, he would have appealed. Id. at 792-93; Flores-Ortega, 528 U.S. at 486,
(“[I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that
his hypothetical appeal might have had merit . . . . Rather, we require the defendant
to demonstrate that, but for counsel’s deficient conduct, he would have
appealed.”). Further, the appeal waiver does not establish an absence of prejudice
for ineffective assistance purposes. See Gomez-Diaz, 433 F.3d at 793 (favorably
citing United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005) (holding
that although the defendant’s “appellate rights have been significantly limited by

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his waiver, . . . the waiver does not foreclose all appellate review of his sentence. If
[the defendant] actually asked counsel to perfect an appeal, and counsel ignored the
request, he will be entitled to a delayed appeal. This is true regardless of whether,
from the limited perspective of collateral review, it appears that the appeal will not
have any merit.”)).
On the other hand, guilty pleas tend to indicate that the defendant is
“interested in seeking an end to the judicial proceedings.” Otero, 499 F.3d at 1270.
In Otero, the defendant pled guilty via a plea agreement that included a broad
appeal waiver. 499 F.3d at 1270. The defendant then filed a pro se motion pursuant
to 28 U.S.C. § 2255 alleging his counsel was ineffective for failing to file a notice of
appeal after the defendant insisted he do so. Id. at 1269. Defense counsel denied the
defendant’s assertions. Id. The court held an evidentiary hearing and found defense
counsel’s testimony to be credible and the defendant’s testimony not to be
credible. Id. The court assumed, however, for the purposes of argument that
defense counsel failed to consult with the defendant about an appeal. Id. at 1270.
The court found such a failure not to be ineffective because the defendant’s
conviction was the result of a guilty plea; the sentence he received was within the
range of what his lawyer had advised him was possible; his plea agreement included
an appeal waiver with limited exceptions; he had no argument that any of the

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exceptions applied which meant that any appeal taken by him would have been
frivolous and would have been an appeal no rational defendant would have taken.
Id. at 1270-71.
The instant case is factually analogous to Otero. Here, Jones pled guilty
pursuant to a plea agreement with a broad appeal waiver. More so than in Otero,
where the defendant had no plausible arguments that any of the exceptions to the
appeal waiver applied, Jones asserts that he would have raised on appeal the
“impropriety of the Federal Public Defenders Office,” which, construed liberally,
could equate to an ineffective assistance of counsel claim, which was one of the
exceptions to the appeal waiver in Jones’ plea agreement. Thus, the Court cannot
say that any appeal Jones may have pursued would have been frivolous, like in
Otero. Additionally, like the defendant in Otero, Jones received a sentence that was
within the range of what his lawyer would have advised him was possible. The only
issue is whether Jones reasonably demonstrated to his counsel that he wanted to
withdraw the appeal. Because Jones says that he did not authorize his direct appeal
counsel to withdraw his appeal, this claim cannot be resolved on the existing
record. The Court will hold a limited evidentiary hearing for the purpose of
determining whether Jones authorized his direct appeal counsel to withdraw his
appeal.

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III.

Conclusion
For the foregoing reasons, Jones’ § 2255 motion is hereby DENIED insofar

as it relates to his claims that (1) this Court violated Rule 11 in accepting his guilty
plea because his guilty plea did not contain a sufficient factual basis and (2) his trial
counsel was ineffective by coercing him into pleading guilty. Jones’ claim of
ineffective assistance of counsel as it relates to his direct appeal is hereby
RESERVED for an evidentiary hearing, date, time and place to be set by separate
order. The Clerk is directed to mail a copy of the foregoing to Jones.
DONE and ORDERED on November 6, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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