Byars v. United States of America
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY DEAN BYARS,
Movant,
File No. 1:11-cv-644
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
This matter is before the Court on Movant Jerry Dean Byars’s motion pursuant to 28
U.S.C. § 2255, to vacate, set aside, or correct his sentence. For the reasons that follow, his
motion will be denied.
Movant was indicted on September 23, 2008, on the following charges: (1) receipt of
images of minors engaging in sexually explicit conduct, in violation of 18 U.S.C.
§§ 2252(a)(2), (b)(1), and 2256; and (2) possession of child pornography, in violation of 18
U.S.C. §§ 2252A(a)(5)(b), (b)(2), and 2256. United States v. Byars, Case No. 1:08-cr-225
(W. D. Mich. July 22, 2009; Dkt. No. 1, Indictment.) Movant pleaded guilty to Count I on
February 19, 2009, and was sentenced on July 21, 2009, to a term of ninety-seven months’
imprisonment. (1:08-cr-225, Dkt. No. 42, J.) Movant appealed on July 24, 2009, and his
conviction was affirmed on October 25, 2010. (1:08-cr-225, Dkt. No. 43, Notice of Appeal;
Dkt. No. 47, USCA Opinion.) Movant filed his § 2255 motion on June 27, 2011 and seeks
relief based on several Fourth Amendment claims. (Dkt. No. 1.)
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such sentence, that the sentence was in excess of the
maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence
on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th
Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). As a general
rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on
collateral review unless the petitioner shows either 1) “cause” and “actual prejudice”; or 2)
“actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982).
A court is required to grant a hearing to determine the issues and make findings of fact
and conclusions of law on a § 2255 motion “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief . . . .” 28 U.S.C.
§ 2255(b). No evidentiary hearing is required if the petitioner’s allegations “are contradicted
by the record, inherently incredible, or conclusions rather than statements of fact.” Valentine
v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178
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F.3d 778, 782 (6th Cir. 1999)). “If 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.” Rules Governing § 2255 Cases, Rule 4(b).
III.
The five grounds for relief raised in Movant’s initial § 2255 motion are that: (1) the
search warrant was stale; (2) the search warrant was unconstitutional; (3) the affidavit of
probable cause was inconsistent with the indictment; (4) the plea agreement was illegal; and
(5) the government conducted “illegal surveillance.” (Dkt. No. 1.)
A. Fourth Amendment Claims Waived by the Plea Agreement
As a matter of law, Movant had the opportunity to present Fourth and Fifth
Amendment claims before the district court but did not. In signing the plea agreement,
Movant waived his right to testify on his own behalf, present evidence, call witnesses,
present affirmative defenses, and make such Fourth and Fifth Amendment claims. (1:08-cr225, Dkt. No. 23, Plea Agrm’t 4-5.)1
“Waiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). When a defendant enters a voluntary guilty
plea, he waives the right to raise Fourth Amendment claims because guilty plea waives all
non-jurisdictional challenges to a conviction. United States v. Martinez-Orozco, 52 Fed.
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“By pleading guilty, the Defendant also gives up any and all rights to pursue any
affirmative defenses, Fourth Amendment or Fifth Amendment claims, and other pretrial motions
that have been filed or could be filed.” (1:08-cr-225, Dkt. No. 23, Plea Agrm’t 5.)
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App’x 790, 792 (6th Cir. 2002); see Tollett v. Henderson, 411 U.S. 258, 261-67 (1973);
United States v. Freed, 688 F.2d 24, 25 (6th Cir.1982). Movant’s plea precludes him from
making all four of the Fourth Amendment claims. Therefore, these claims are denied.
B. Illegality and Voluntariness of the Plea
In the plea agreement, Movant also waived the right to claim that a possible
subsequent prosecution, brought after a termination of the agreement, might be time-barred.
(1:08-cr-225, Dkt. No. 23, Plea Agrm’t 6.)2 Movant asserts that this term of the agreement
is illegal. (Dkt. No. 1, Mot. to Vacate 10.) However, the statute of limitations defense is a
non-jurisdictional issue that may be waived. United States v. Mendez-Santana, 645 F.3d 822,
829 (6th Cir. 2011) (citing United States v. Titterington, 374 F.3d 453, 458–59 (6th Cir.
2004)). This waiver is invalid, however, if the plea was not entered into freely and
voluntarily. See United States v. Mezzanatto, 513 U.S. 196, 201 (1995); United States v.
Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001).
When voluntary, a conviction and plea waive the right to collateral attack. United
States v. Broce, 488 U.S. 563, 569 (1989). A defendant must make a conscious decision
whether to plead guilty or challenge the evidence and force the Government to prove guilt
beyond a reasonable doubt. When a defendant chooses to plead guilty, he relinquishes the
privilege to later challenge the evidence. Id. at 571. “It is well settled that a voluntary and
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“In the event that the United States elects to terminate this agreement. . . The Defendant
further agrees to waive and forever give up his right to raise any claim that such a prosecution is
time-barred if the prosecution is brought within one (1) year of the breach that gives rise to the
termination of the agreement.” (1:08-cr-225, Dkt. No. 23, Plea Agrm’t 6.)
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intelligent plea of guilty made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked.” Id. at 574 (quoting Mabry v. Johnson, 467 U.S.
504, 508 (1984)).
By pleading guilty, a defendant waives the constitutional rights that attach in a
criminal trial, including the very right to a trial, rights against self-incrimination, and rights
of confrontation, among others. Florida v. Nixon, 543 U.S. 175, 187 (2004). Guilty pleas
“comprehend all of the factual and legal elements necessary to sustain a binding, final
judgment of guilt and a lawful sentence.” Broce, 488 U.S. at 569. In his plea agreement,
Movant agreed that the plea was entered “freely, knowingly, and voluntarily,” and, by
signing the agreement, stated, “[n]o one has threatened or forced me in any way to enter this
agreement . . . I am satisfied with the representation of my attorney in this matter.” (1:08-cr225, Dkt. No. 23, Plea Agrm’t 6-7.) Movant was sworn by the Court and stated that he
voluntarily agreed to the terms of the plea. (1:08-cr-225, Dkt. No. 44, Plea Tr. 4, 10.)
Movant also acknowledged the other rights he was giving up by pleading guilty.
When the record reveals that a petitioner’s “plea was knowing and voluntary,” the
district court need not conduct a hearing if the defendant later challenges the guilty plea in
a 28 U.S.C. § 2255 proceeding. Because Movant has failed to argue, much less show, that
waivers contained in the plea were involuntary, the claim is denied.
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C. Ineffective Assistance of Counsel
Movant has not raised a specific claim that Counsel was ineffective. However, in the
interest of justice, and because pro se pleadings are held to less stringent standards,3 this
Court will consider the issue to the extent that Movant claims his attorney was ineffective
for failing to raise the issues on appeal. Movant claims that the issues were not raised on
direct appeal because he relied on Counsel to render effective assistance. (Dkt. No. 1.)
To make out a claim of ineffective assistance of counsel, a movant must show that
counsel’s representation fell below an objective standard of reasonableness, and that
counsel’s deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). The court may dispose of the claim if a defendant fails to meet either prong.
Id. at 697.
Movant must show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Because Counsel is presumed to be competent, the burden rests on Movant to show a
constitutional violation. United States v. Cronic, 466 U.S. 648, 658 (1984) (citing Michel
v. Louisiana, 350 U.S. 91, 100-01 (1955)). Because Movant has failed to show specific
errors made by Counsel which undermined the adversarial process, there is no basis for
finding a violation. See Strickland, 466 U.S. at 696-96.
Movant’s claims are waived by the plea agreement and are therefore denied.
IV.
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Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007) (citing Haines v. Kerner, 404 U.S.
519, 520 (1972)).
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The files and records in this case conclusively show that Movant is entitled to no relief
under § 2255. Accordingly, no evidentiary hearing is required to resolve the merits of the
pending motion. For the reasons stated herein, Movant’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 will be denied.
Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a
certificate of appealability to Movant. To warrant a grant of a certificate of appealability,
Movant “must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket
denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001).
Rather, the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Upon review of each claim, the Court does not believe
that reasonable jurists would find its assessment of Movant’s claims to be debatable or
wrong. Accordingly, a certificate of appealability will also be denied as to each claim.
An order and judgment consistent with this opinion shall be entered.
Dated: December 8, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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