Mason v. USA
Filing
3
ORDER denying 1 Motion to vacate, set aside, or correct sentence (2255). The Clerk is directed to enter judgment against Petitioner and then to close that case. Signed by Judge Susan C Bucklew on 11/3/2011. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIE TROY MASON, JR.
v.
Case No.: 8:11-cv-2452-T-24-TGW
8:08-cr-536-T-24-TGW
UNITED STATES OF AMERICA
_____________________________/
ORDER
This cause comes before the Court on Petitioner Willie Troy Mason, Jr.’s motion to
vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (CV Doc.
No. 1; CR Doc. No. 150). Because review of the motion and the file in the case conclusively
shows that Petitioner is not entitled to relief, the Court will not cause notice thereof to be served
upon the United States Attorney but shall proceed to address the matter. 28 U.S.C. § 2255(b).
I. Background
On July 20, 2009, Petitioner pled guilty, pursuant to a plea agreement, to three charges:
(1) Count One - conspiracy to commit robbery, (2) Count Two - robbery, and (3) Count Three carrying and brandishing a firearm during a crime of violence or aiding and abetting another in
doing so.1 (CR Doc. No. 72). On December 11, 2009, Petitioner was sentenced to 87 months on
Counts One and Two, to run concurrently, and 84 months on Count Three, to run consecutively,
for a total of 171 months of imprisonment.2 (CR Doc. No. 121).
Thereafter, Petitioner directed his counsel to file an appeal on his behalf and to raise the
following four issues: (1) that his guilty plea was not voluntary, (2) that his sentence was not
1
In return for pleading to those three counts, the Government agreed to dismiss the two remaining
counts that Petitioner was charged with–an additional robbery count and an additional firearm count.
2
He was also given 36 months of supervised release.
fair, (3) that his guilty plea was not knowingly and intelligently made, and (4) that his counsel
had a conflict of interest. (CV Doc. No. 1). On appeal, Petitioner’s counsel moved to withdraw
from further representation during the appeal and filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). (CR Doc. No. 149). On September 27, 2010, the Eleventh Circuit granted
Petitioner’s counsel’s motion to withdraw and affirmed Petitioner’s conviction and sentence
stating “Our independent examination of the entire record reveals no arguable issues of merit.”
(CR Doc. No. 149).
Petitioner did not file a petition for certiorari in the United States Supreme Court. (CV
Doc. No. 1). Instead, on October 24, 2011, Petitioner timely submitted the instant § 2255 motion
to the prison mailing system for filing with this Court.3 (CV Doc. No. 1).
II. Motion to Vacate Sentence
Petitioner raises four grounds in his motion to vacate. In Ground One, Petitioner argues
that his guilty plea was not voluntary, and thus his counsel was ineffective, because his counsel
misrepresented the length of the sentence that he would receive if he entered into the plea
agreement. In Ground Two, Petitioner argues that his guilty plea was not knowingly and
intelligently entered into, and thus his counsel was ineffective, because his counsel refused to let
him read the plea agreement before entering the guilty plea. In Ground Three, Petitioner argues
that his counsel was ineffective, because he represented Petitioner before this Court and on
appeal, and as a result, counsel refused to raise the issues of his own ineffectiveness on appeal,
as directed by Petitioner. In Ground Four, Petitioner argues that he received an unfair sentence,
because the sentence was longer than what his counsel promised him that his sentence would be.
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Petitioner’s § 2255 motion was timely filed, because it was filed within one year after his conviction
became final. The Eleventh Circuit affirmed Petitioner’s conviction and sentence on September 27, 2010,
and his conviction became final 90 days later (when the time for filing a petition for certiorari expired).
Thus, his conviction became final on December 27, 2010, and he filed the instant motion within less than
one year from that date.
2
However, as explained below, the Court rejects these arguments, because they directly contradict
the plea agreement and the statements that Petitioner made during the guilty plea hearing.
A. Standard of Review
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created a twopart test for determining whether a defendant received ineffective assistance of counsel:
First, the movant must show that counsel’s performance was deficient. . . .
Second, the movant must show that counsel's deficient performance prejudiced
the defense. To prove prejudice, the movant must show that there is a reasonable
probability that the outcome of the proceedings would have been different but for
counsel's unprofessional errors.
Patel v. U.S., 252 Fed. Appx. 970, 972 (11th Cir. 2007)(internal citations omitted).
The Court notes that “[t]here is a strong presumption that statements made during the
plea colloquy are true.” Patel, 252 Fed. Appx. at 975 (citation omitted). As a result, Petitioner
“bears a heavy burden to show that his statements under oath were false.” Id. (citation omitted).
B. Ground One - Voluntariness of Plea
In Ground One, Petitioner argues that his guilty plea was not voluntary, and thus his
counsel was ineffective, because his counsel misrepresented the length of the sentence that he
would receive if he entered into the plea agreement. Specifically, Petitioner contends that: (1)
shortly before July 10, 2009, counsel told Petitioner in a phone conversation that if he pled
guilty, the Court would only sentence him to seven years; (2) when counsel brought Petitioner
the plea agreement, counsel would not let him read it; and (3) on the day of the guilty plea
hearing and on the day of sentencing, counsel told him to agree to everything the judge said or
he would risk losing the seven year sentence. However, as explained below, the Court rejects
Petitioner’s argument that his guilty plea was not voluntary, because such an argument conflicts
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with the terms of the plea agreement and the statements made by Petitioner, under oath, during
the plea colloquy.
1. Terms of the Plea Agreement
The terms of the plea agreement clearly provided the following: (1) Count One
(conspiracy to commit robbery) carried a sentence of up to 20 years of imprisonment; (2) Count
Two (robbery) carried a sentence of up to 20 years of imprisonment; (3) Count Three (carrying a
firearm during the robbery) carried a mandatory minimum sentence of 7 years of imprisonment
(up to life imprisonment), and the sentence on this count would run consecutive to any other
sentence imposed; (4) the Government would recommend to the Court that Petitioner be
sentenced at the high end of the final, adjusted applicable Guidelines range and Petitioner agreed
not to oppose such a sentence; (5) Petitioner waived his right to appeal or challenge his sentence
collaterally on any ground4 (with three exceptions not implicated by the grounds raised in the
instant § 2255 motion); and (6) Petitioner agreed that he was entering into the plea agreement
freely, voluntarily, and not in exchange for any promises other than those contained in the plea
agreement.
2. Guilty Plea Hearing
At the guilty plea hearing, the Court carefully reviewed the plea agreement with
Petitioner as well as his decision to enter a guilty plea. Specifically, the Court went over the
following with Petitioner:
4
The Court notes that the appeal waiver does not bar Petitioner’s ineffective assistance of counsel
claims regarding the validity of his guilty plea. See Patel v. U.S., 252 Fed. Appx. 970, 975 (11th Cir. 2007).
4
THE COURT:
Does [your initials on each page of the plea agreement]
indicate that you and your lawyer have gone over each
page of the plea agreement?
DEFENDANT:
Yes, sir.
THE COURT:
After you and your lawyer went over each page of the plea
agreement, did you understand each page of the plea
agreement?
DEFENDANT:
Yes.
THE COURT:
*
*
*
Was there ever a point when you read the plea agreement
by yourself?
DEFENDANT:
Yes, sir.
THE COURT:
Did you have any trouble reading that?
DEFENDANT:
No, sir.
THE COURT:
*
*
*
You're represented by Mr. Secular. Have you had a full
opportunity to discuss this case with him?
DEFENDANT:
Yes, sir.
THE COURT:
*
*
*
In particular, did he explain the three charges in Counts
One, Two and Three to you?
DEFENDANT:
Yes, sir.
THE COURT:
*
*
*
The penalties for these offenses are set out at the beginning
of the plea agreement in Paragraph 2, and that indicates that
Counts One and Two concerning the conspiracy to rob and
the robbery -- that they each have a maximum sentence of
20 years in prison. Do you understand that?
DEFENDANT:
Yes, sir.
THE COURT:
*
*
*
With respect to Count Three, that has a minimum
mandatory term of seven years in prison. Do you
understand that?
DEFENDANT:
Yes, sir.
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THE COURT:
Furthermore, it has a maximum sentence of life in prison.
Do you understand that?
DEFENDANT:
Yes, sir.
THE COURT:
And that sentence must run consecutive to the sentences on
Counts One and Two, that is, in addition to that. Do you
understand that?
DEFENDANT:
Yes, sir.
THE COURT:
DEFENDANT:
THE COURT:
THE COURT:
*
*
*
. . . In Paragraph 7 [of the plea agreement] the government
indicates that it will recommend that you be sentenced at
the high end of the guideline range as determined by the
Court under the guidelines as adjusted by any departure the
government has agreed to recommend, and you've agreed
not to oppose such a sentence. But it goes on to say if for
some reason the Court does not do that, you would not
have a right to withdraw your plea of guilty. Do you
understand that?
Yes, sir.
*
*
*
Okay. What this is saying is when you get to sentencing
and the guideline ranges are being discussed that you agree
with respect to the sentences on Counts One and Two that
they be at the high end of the guideline range that's
determined and that you're not going to suggest for some
lesser sentence.
*
*
*
And [you understand] that [paragraph 5 of the plea
agreement] includes being unable to come back and
complain that your lawyer was somehow ineffective with
respect to the guidelines. Do you understand that?
DEFENDANT:
Yes, sir.
THE COURT:
*
*
*
And are you agreeing to it freely and voluntarily as part of
this plea agreement?
DEFENDANT:
Yes, sir.
*
*
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*
THE COURT:
. . . So other than what's in the plea agreement . . ., has
anyone promised you anything in order to get you to plead
guilty?
DEFENDANT:
No, sir.
THE COURT:
*
*
*
And are you pleading guilty freely and voluntarily?
DEFENDANT:
Yes, sir.
(CR Doc. No. 135, p. 6-7, 12, 17-19, 23-24, 31-33). Thereafter, the Court again questioned
Petitioner regarding whether he was voluntarily pleading guilty and whether anyone had
promised him anything in return for pleading guilty:
THE COURT:
All right. Let me just recap here. Are you pleading guilty
freely and voluntarily?
DEFENDANT:
Yes, sir.
THE COURT:
*
*
*
Other than what's set out in the plea agreement . . ., has
anyone promised you anything in order to get you to plead
guilty?
DEFENDANT:
No.
(CR Doc. No. 135, p. 34-35).
3. Promise of a Seven Year Sentence
Petitioner first argues that his plea was not voluntary, because his counsel promised him
that he would only receive a seven year sentence. However, based on the plea agreement and
Petitioner’s statements during the guilty plea hearing, the Court rejects this argument.
Specifically, the Court asked Petitioner twice during the guilty plea hearing whether he was
promised anything beyond what was stated in the plea agreement, and both times Petitioner
responded that he had not been promised anything. Given Petitioner’s sworn testimony during
the plea colloquy, his ineffective assistance of counsel claim fails. See Patel, 252 Fed. Appx. at
975; Williams v. U.S., 2010 WL 4941962, at *4 (M.D. Ala. Nov. 2, 2010), adopted by 2010 WL
4932728 (M.D. Ala. Nov. 30, 2010).
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Furthermore, even if the Court accepted as true Petitioner’s allegation that his counsel’s
performance was deficient in that counsel promised him that if he pled guilty, he would only get
a seven year sentence, the Court finds that Petitioner cannot show prejudice because the Court
made it clear to Petitioner prior to accepting his guilty plea that: (1) Counts One and Two each
had a maximum sentence of 20 years of imprisonment; (2) Count Three had a minimum
mandatory term of 7 years; (3) the sentence for Count 3 had to run consecutive to the sentence
for Counts One and Two; and (4) the Government would recommend a sentence at the high end
of the Guidelines range, and pursuant to the plea agreement, Petitioner agreed not to oppose such
a sentence. As such, there was no basis for Petitioner to rely on the purportedly promised seven
year sentence, since the Court’s explanation of the sentence that he was facing undermined the
reliability of such a promise. Therefore, since there was no basis for Petitioner to rely on the
allegedly promised seven year sentence, the Court finds that Petitioner cannot show that he was
prejudiced by the alleged promise.
4. Refusal to Allow Petitioner to Read the Plea Agreement
Next, Petitioner argues that his plea was not voluntary because he was not given an
opportunity to read the plea agreement. Again, based on Petitioner’s statements during the guilty
plea hearing, the Court rejects this argument. Specifically, the Court asked Petitioner whether
his attorney went over every page of the plea agreement with him and whether he understood
each page of the plea agreement; Petitioner responded yes to both questions. Furthermore, even
if counsel refused to let Petitioner read the plea agreement, Petitioner cannot show prejudice,
because the Court went through and explained all of the material terms of the plea agreement
prior to accepting his guilty plea.
5. Counsel’s Directive to Agree with the Judge
Next, Petitioner argues that his plea was not voluntary because, on the day of the guilty
plea hearing and on the day of sentencing, counsel told him to agree to everything the judge said
or he would risk losing the seven year sentence. The Court rejects this argument because
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Petitioner’s responses to the Court were made under oath, and as such, he cannot simply file a §
2255 motion claiming that such statements were not truthfully made. Furthermore, with regard
to Petitioner’s contention that counsel directed him to agree to everything the judge said on the
day of his sentencing, the Court notes that Petitioner had already pled guilty prior to that date, so
any directives given by counsel on the day of sentencing could not have led to Petitioner’s
decision to enter into the plea agreement and to plead guilty.
6. Conclusion Regarding Voluntariness
Based on the above, the Court rejects Petitioner’s argument that his guilty plea was not
voluntary. Accordingly, the Court finds that Petitioner is not entitled to any relief under Ground
One of his § 2255 motion.
C. Ground Two - Whether the Guilty Plea was Knowingly and Intelligently Made
In Ground Two, Petitioner argues that his guilty plea was not knowingly and intelligently
entered into, and thus his counsel was ineffective, because counsel refused to let him read the
plea agreement before entering the guilty plea. However, as previously explained in the Court’s
analysis of Ground One, the Court rejects this argument based on the conflicting statements
made by Petitioner, under oath, during the plea colloquy. Furthermore, even if counsel refused
to let Petitioner read the plea agreement, Petitioner cannot show prejudice, because the Court
went through and explained all of the material terms of the plea agreement prior to accepting his
guilty plea. Accordingly, the Court finds that Petitioner is not entitled to any relief under
Ground Two of his § 2255 motion.
D. Ground Three - Counsel’s Alleged Conflict of Interest
In Ground Three, Petitioner argues that his counsel was ineffective, because he
represented Petitioner before this Court and on appeal, and as a result, counsel refused to raise
the issues of his own ineffectiveness on appeal, as directed by Petitioner. Specifically, Petitioner
directed counsel to file an appeal raising the following four issues: (1) that his guilty plea was
not voluntary, (2) that his sentence was not fair, (3) that his guilty plea was not knowingly and
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intelligently entered into, and (4) that his counsel had a conflict of interest. Instead of raising
these issues as directed by Petitioner, counsel moved to withdraw and Petitioner’s conviction and
sentence were affirmed.
The Court rejects Petitioner’s argument that counsel’s alleged conflict of interest is a
basis for relief, because this argument is based on Petitioner’s contention that counsel was
ineffective for failing to file an appeal outlining his own ineffectiveness. However, claims of
ineffective assistance of counsel are generally not considered for the first time on direct appeal.
See Thomas v. U.S., 572 F.3d 1300, 1304-05 (11th Cir. 2009)(citation omitted). Accordingly, the
Court finds that counsel was not ineffective for failing to pursue Petitioner’s ineffective
assistance of counsel claims relating to the validity of his guilty plea on direct appeal.
Additionally, since Petitioner raised those same ineffective of assistance of counsel claims in the
instant § 2255 motion, the Court finds that there could be no prejudice, because this Court has
found all of those claims to be wholly without merit. The Court also notes that at the sentencing
hearing and after sentence was imposed, Petitioner was asked whether he was satisfied with the
representation of his attorney, and he stated that he was. As such, the Court finds that Petitioner
is not entitled to any relief under Ground Three of his § 2255 motion.
E. Ground Four - Fairness of Sentence
In Ground Four, Petitioner argues that he received an unfair sentence, because the
sentence was longer than what his counsel promised him that his sentence would be.
Specifically, Petitioner contends that he entered the guilty plea based on his counsel’s
misrepresentation that he would only receive a seven year sentence. Further, Petitioner contends
that had he known that he would receive a fourteen year sentence due to his sentence on the
firearm count running consecutively to his sentence on the other two counts, he would not have
pled guilty. However, as previously explained in the Court’s analysis of Ground One, the Court
rejects this argument based on the plea agreement which stated the penalty on the firearm count
was seven years consecutive, the conflicting statements made by Petitioner, under oath, during
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the plea colloquy that nothing had been promised to him, and due to the Court’s thorough
explanation of the sentence including the seven year consecutive sentence for the firearm count
that he was facing if he pled guilty. Accordingly, the Court finds that Petitioner is not entitled to
any relief under Ground Four of his § 2255 motion.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s § 2255 motion is
DENIED. The Clerk is directed to enter judgment against Petitioner in the civil case and then to
close that case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a
district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
issue a certificate of appealability (“COA”). Id. “A [COA] may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To
make such a showing, Petitioner “must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
Petitioner has not made the requisite showing in these circumstances. Finally, because Petitioner
is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, this 3rd day of November, 2011.
Copies to:
Counsel of Record
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