Edwards v. United States of America

Filing 12

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the motion of George H. Edwards. Jr. to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [#1] is denied. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability, as Edwards has not made a substantial showing of the denial of a federal constitutional right. IT IS FURTHER ORDERED that respondent's motion to dismiss [#3] is denied as moot. Signed by Honorable Catherine D. Perry on May 19, 2010. (MGK)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI E A S T E R N DIVISION G E O R G E H. EDWARDS, JR., P e titio n e r , v. U N IT E D STATES OF AMERICA, R e s p o n d e n t. ) ) ) ) ) ) ) ) )

C ase No. 4:08CV949 CDP

M E M O R A N D U M AND ORDER T h is matter is before me on George H. Edwards. Jr.'s Motion Under 28 U .S .C . § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal C u sto d y. For the reasons set forth below, the motion will be denied. I. B a c kg r o u n d E d w ard s was charged by superseding indictment with one count of ex to rtio n under 18 U.S.C. § 1951 and one count of wire fraud under 18 U.S.C. § 1 3 4 3 . On April 23, 2007, Edwards pleaded guilty to the wire fraud count and, in ex ch an g e, the government dismissed the extortion charge. In the plea agreement, b o th parties waived all rights to appeal all non-sentencing issues, "including, but n o t limited to, any issues relating to pre-trial motions, hearings and discovery and issu es relating to the negotiation, taking or acceptance of the guilty plea or the factu al basis for the plea." In the event I accepted Edwards' plea, applied the

p arties' recommendations, and then sentenced Edwards within the agreed upon ran g e, both parties also waived their rights to appeal "all sentencing issues, except an y issues relating the determination of the Total Offense Level." Finally, E d w ard s also waived his right to contest his conviction or sentence in any § 2255 m o tio n , except for claims of prosecutorial misconduct or ineffective assistance of c o u n s e l. I reviewed Edwards' plea agreement, including its waiver provisions, with E d w ard s on the record during his plea colloquy. In his plea agreement, Edwards stip u lated to the following facts: D u r in g the fall of 2006, the defendant devised a scheme and artifice to defraud a certain professional athlete referred to in the superseding in d ictm en t as John Doe (hereafter "John Doe") of money and p ro p erty by means of false and fraudulent pretenses, representations an d promises, using wire transmissions of writings, signs, signals and so u n d s for the purpose of executing said scheme and artifice. Specifically, the defendant planned to tell John Doe, through agents em p lo yed by John Doe, that his daughter was pregnant by him. The d efen d an t further planned to tell John Doe that, unless he paid $ 1 5 0 ,0 0 0 .0 0 in cash to defendant's daughter (through the defendant), th e defendant would report the resulting relationship and pregnancy to the media. The defendant continued his scheme by, on or about Jan u ary 6, 2007, informing John Doe, through his agents, that his d au g h ter had suffered a miscarriage. A number of the foregoing representations made by the defendant to th e agents of John Doe were materially false, including but not lim ited to that the defendant's daughter had submitted to a paternity te s t.

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In furtherance of and in execution of the scheme, the defendant cau sed writings, signs, signals and sounds to be transmitted from Illin o is to California by means of a telephone call on or about Jan u ary 11, 2007. The defendant and the government agree that the facts set forth ab o v e are true and may be considered as "relevant conduct" pursuant to Section 1B1.3. I asked Edwards if the stipulation of facts relative to sentencing set out in the plea a g r ee m e n t was true and he answered, "Yes." To ensure that Edwards was entering his plea knowingly and voluntarily, I h eld the following exchange with Edwards: C O U R T : Mr. Edwards, the lawyers have told me as part of the n eg o tiatio n s in this case, there was some discussion about your d au g h ter's situation and whether she was going to be charged with a c r im e ? E D W A R D S : Yes. C O U R T : As I understand it right now, there's still discussions o n g o in g with her about some things, pretrial diversion and some o th er things, and there hasn't been any firm agreement, and the law yers tell me this isn't part of the agreement, but I want to make su re that you're not pleading guilty here to save your daughter, and I'll have to make sure you're doing this because you're guilty, not b ecau se you want somebody else to get a better deal, so tell me how th at enters into it for you. E D W A R D S : If they were going to charge my daughter, I wouldn't p lead guilty. C O U R T : They still have the right to charge your daughter. Mr. A lb u s, am I correct?
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A S S I S T A N T UNITED STATES ATTORNEY (MR. ALBUS): Let m e say, and I have discussed this with Mr. Edwards before you came o u t, Judge. Our investigation into this matter is basically complete, a n d as we were discussing Mr. Edwards' case, the agreement was m ad e, or the Government committed to offering Mr. Edwards' d au g h ter to participate in a pretrial diversion program, which as the C o u rt knows, if she could successfully complete it, she would end up w ith her being immunized from any charges with respect to this. As o f today, that offer is still outstanding to Mr. Edwards' daughter, w h o is represented by Charles Kirksey, separate counsel. That offer w ill be out there for her for some period of time, but because she has to date refused to enter into that agreement, every other possibility, eith er no charges being pursued, the pretrial diversion program, or so m eth in g else is still a possibility, and as it's written up today, and as the Government understands it, the resolution of Mr. Edwards' c as e is not conditioned on any resolution of his daughter's case. C O U R T : But what you're telling me is it is. If you want to go to tr ia l, you should do that. Let me explain that. Say your daughter w e n t on diversion and she screwed up for some reason, and they d ecid ed to charge her, you aren't going to be able to withdraw your g u ilty plea. You aren't going to be able to come back and say, "I w o u ld n 't have done this if I thought she would get charged." If they d ecid e to charge her tomorrow, you're not going to be able to w ith d r aw your guilty plea. It is real simple. You need to plead g u ilty because you believe you're guilty of this crime, not because yo u want to save somebody else or to get her a better deal, and that's w h at I have to hear you tell me today under oath, and it has to be the tr u th . I'm not asking you to tell me something that's not true, b ecau se otherwise I can't accept your plea if I think you're just p le ad in g guilty -- you don't really believe you're guilty of this crime, b u t you want to get a better deal for your daughter, because that w o u ld n 't be right. You can only plead guilty if you really are guilty an d if you're pleading guilty because you yourself believe this is w h a t you should do. Lots of time people have family members in v o lv ed , and there are times when people may do certain things b ecau se they hope it will help their family member, but the bottom lin e is, you can't plead guilty unless you really are guilty, and you
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can 't plead guilty just because you think it's going to help her out, b ecau se anything can happen to her tomorrow, and you don't know w h at it is, and you're going to be stuck with the guilty plea, and yo u 're going to be the one in jail. You're not going to be able to ch an g e it. You're not going to be able to say, "I wouldn't have done it if thought that was going to happen." I'm going to take a short b r e ak and let you and Mr. Curran talk about this and decide whether y o u really want to go forward with this. I don't want you to plead g u ilty unless you yourself believe that's what you should do, that you b e lie v e you're guilty of this crime, that you're willing to say under o ath , "I am guilty of this crime, and I want to plead guilty, and I d o n 't want to go to trial." Those are the things you have to say for m e to take your plea, and I want to believe when you say them to me u n d er oath that they're true. I don't want you to tell me, "I was just te llin g you that then, it really was not true." I'm going to take a short recess and I'll come back in five to ten minutes. C O U R T : Step up. Are we going to go forward with the plea? D E F E N S E COUNSEL (MR. CURRAN): I believe so. E D W A R D S : Yes. C O U R T : Is that right, Mr. Edwards, you want to go ahead and plead g u ilty ? E D W A R D S : Yes. C O U R T : Do you believe you're guilty of this crime? E D W A R D S : Yes. C O U R T : And understand you have to be pleading guilty because yo u 're guilty of this crime, not for any other reason or to get any o th er benefit for yourself or anybody else. Do you understand that? E D W A R D S : Yes.

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In response to my questioning, Edwards also assured me that he was satisfied with h is legal representation, that he was not being forced to plead guilty, and that he u n d ersto o d the rights he was giving up by pleading guilty. Based on Edwards' s ta te m e n ts made to me, I accepted his guilty plea. A presentence investigation report (PSR) was then prepared. The PSR d e te rm in e d that Edwards' total offense level was 14 with the recommended g u id elin es range of imprisonment between 21 to 27 months. At the sentencing h e a rin g on July 6, 2007, Edwards told me that he had the following unresolved o b jectio n to the PSR: D E F E N D A N T : The one was a conviction in 1981. C O U R T : Okay. D E F E N D A N T : That was dismissed after appeal, and they didn't ch arg e me any points for it, but they put it in my PSR. M R . CURRAN: I should have mentioned it. I talked to Probation. Their records show differently, and we have yet to find anything that co n trad icts it, but it doesn't count. *** C O U R T : December 4th, 1981, possessing a narcotic controlled su b stan ce for sale. Is that what we're talking about? M R . CURRAN: Yes. It didn't count for any criminal history points b ecau se of his age. Mr. Edwards' recollection is it was appealed and d ism issed . Los Angeles, California records are very difficult to get. Probation had what they put in there, and we have yet to find any
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reco rd s of anything different. C O U R T : Okay. It does not -- so Mr. Edwards, what do you think h ap p en ed with that conviction? E D W A R D S : It was appealed and it was later dismissed. C O U R T : Why was it dismissed? E D W A R D S : They sent it back to the Superior Court to retry me, and th e y dismissed it. They didn't retry me on it. This was in 1981 that it occurred. C O U R T : So the probation office records show what is shown in the P r es en te n c e Report. Well, it does not have any effect on the criminal h is to r y here, so I will simply note it for the record and make an a d d itio n that the defendant contends that this was dismissed and that th e r ef o r e it's not a conviction, but given that it assigns zero criminal h isto ry points, it won't make any difference, but I'll put that into the s ta te m e n t of reasons page to indicate that you believe this was set a sid e . E D W A R D S : Yes . C O U R T : Okay. What else? E D W A R D S : That's it. C O U R T : Okay. All right. Well, I will adopt the Presentence Report as my findings of fact, and I will additionally make that one notation in the statement of reasons. A fter hearing argument from defense counsel, I varied from the guideline range of p u n ish m en t and instead sentenced Edwards to 12 months and one day of im p riso n m en t. Edwards did not appeal.

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I I.

G r o u n d s for Relief E d w a rd s ' §2255 motion alleges the following six grounds for relief: 1 ) ineffective assistance of counsel for failing to file a motion to d ism iss the extortion count in the indictment; 2 ) the Court violated Edwards' Rule 11 rights to enter a guilty plea w ith o u t coercion; 3 ) ineffective assistance of counsel in advising him "that the Parole C o m m issio n would not violate his parole, but would only reinstate it u p o n completion of any sentence the court would impose;" 4 ) Edwards' PSR contained incorrect information that had an adverse e ff ec t on him, and counsel refused to attempt to correct when it was b ro u g h t to his attention; 5 ) ineffective assistance of counsel in advising him to enter into a g u ilty plea knowing that he was not guilty; and 6) Edwards "Sixth Amendment right was blatantly violated by ap p o in ted counsel from the threshold of his appointment."

III.

A n a ly s is A. A n Evidentiary Hearing is not Warranted

I will not hold an evidentiary hearing on this matter. "A petitioner is en titled to an evidentiary hearing on a section 2255 motion unless the motion and th e files and records of the case conclusively show that he is entitled to no relief." Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal q u o tatio n marks omitted). An evidentiary hearing need not be held if Edwards'

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"alleg atio n s cannot be accepted as true because they are contradicted by the r ec o r d , inherently incredible or conclusions rather than statements of fact." Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998); see also AnjuloL o p ez, 541 F.3d at 817 (no hearing required where claim is "inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is b ased .") (internal quotation marks and citation omitted). Because the records c o n c lu s iv e ly show that Edwards is not entitled to relief as a matter of law, I need n o t hold a hearing. B. G r o u n d s 2 and 4 Are Waived

T o the extent Edwards is attempting to challenge the taking of his plea and an y alleged factual errors in his PSR in Grounds 2 and 4 of his motion, Edwards w aiv ed his right to bring these claims.1 Paragraph 2C(2) of Edwards' plea

These arguments are also procedurally defaulted because Edwards did not file a direct appeal. "A collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). "[N]ormally a collateral attack should not be entertained if defendant failed, for no good reason, to use another available avenue of relief." Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987) (internal citation omitted). Grounds 2 and 4 were not raised on direct appeal. If a claim could have been raised on direct appeal but was not, it cannot be raised in a § 2255 motion unless the movant can show both (1) a "cause" that excuses the default, and (2) "actual prejudice" resulting from the errors of which he complains. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993); Mathews v. United States, 114 F.3d 112, 113 (8th Cir. 1997). Here, Edwards has made no showing of cause and prejudice sufficient to overcome the procedural bar. A movant can also avoid procedural default by demonstrating actual innocence. Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) ("In order to obtain collateral review of a procedurally defaulted issue, a § 2255 movant must show either cause and actual prejudice, or that he is actually innocent.") (internal quotation marks and citations omitted). Although Edwards claims he is "innocent," this argument is -9-

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ag reem en t states as follows: T h e defendant acknowledges being guilty of the crime(s) to which a p le a is being entered, and further states that neither defense counsel n o r the government has made representations which are not included in this document as to the sentence to be imposed. The defendant f u r th e r agrees to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 2 8 , United States Code, Section 2255, except for claims of p ro secu to rial misconduct or ineffective assistance of counsel. A defendant may knowingly waive his right to bring § 2255 claims in a plea ag reem en t, and the waiver will be enforced unless the plea agreement was not en tered into knowingly and voluntarily. See DeRoo v. United States, 223 F.3d 9 1 9 , 923 (8th Cir. 2003). To the extent Edwards' Rule 11 argument is an attempt to argue that his g u ilty plea and waiver of rights were unknowing or involuntary because they were co erced , that claim is conclusively refuted by the record. See United States v. A n d is, 333 F.3d 886, 891 (8th Cir. 2003) (knowing and voluntary waiver would n o t be enforced if to do so would result in a miscarriage of justice). "While a g u ilty plea taken in open court is not invulnerable to collateral attack in a post co n v ictio n proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a formidable barrier in any

foreclosed to him since he admitted he was guilty. - 10 -

su b seq u en t collateral proceedings." Nguyen v. United States, 114 F.3d 699, 703 (8 th Cir. 1997) (internal citations omitted). Edwards "must overcome strong p resu m p tio n s . . . of the voluntariness of his guilty plea based on his rep resen tatio n s at the plea hearing." Ramey v. United States, 8 F.3d 1313, 1314 (8 th Cir. 1993); see also Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) ( "[ s]o le m n declarations in open court carry a strong presumption of verity.") (in tern al quotation marks and citation omitted). "To be constitutionally valid, a g u ilty plea must be knowing, voluntary, and intelligent," United States v. M artin ez-C ru z, 186 F.3d 1102, 1104 (8th Cir. 1999), which means it must be m ad e "with sufficient awareness of the relevant circumstances and likely c o n s e q u e n c e s ." Id. (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). H ere, I discussed the voluntary nature of Edwards' plea with him at length an d instructed him that I could only take his guilty plea if he was pleading guilty b ecau se he was guilty, and not to secure some sort of deal for his daughter. I r ec es se d the proceedings so Edwards could decide if he wanted to go forward w ith his change of plea hearing, and when he informed me that he did I had the fo llo w in g exchange with Edwards: COURT: Do you believe you're guilty of this crime? E D W A R D S : Yes.

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C O U R T : And understand you have to be pleading guilty because yo u 're guilty of this crime, not for any other reason or to get any o th er benefit for yourself or anybody else. Do you understand that? E D W A R D S : Yes. I then asked him if he was being forced to plead guilty, and he answered, "No." E d w a rd s ' sworn statements to me during the plea hearing establish that his plea ag reem en t and guilty plea were entered into knowingly and voluntarily, and he can n o t disavow that testimony now. I will therefore enforce the valid waiver in h is plea agreement. Grounds 2 and 4 of Edwards' § 2255 motion are denied. To th e extent that Ground 4 also raises an ineffective assistance of counsel claim, that claim is denied for the reasons discussed below. C. In effective Assistance of Counsel Claims

T h e remaining grounds for relief in Edwards' § 2255 motion are ineffective assistan ce of counsel claims. Edwards argues that his attorney was ineffective for failin g to move for dismissal of the extortion charge (Ground 1), for failing to a d v is e him that his guilty plea might have an adverse effect upon his federal p a r o le status (Ground 3), for failing to object to, or have corrected, factual errors in his PSR (Ground 4), for advising him to plead guilty even though Edwards was n o t guilty (Ground 5), and for "blatantly violating" his sixth amendment rights ( G r o u n d 6). The Sixth Amendment establishes the right of the criminally accused

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to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 6 8 6 (1984). To state a claim for ineffective assistance of counsel, Edwards must p r o v e two elements of the claim. First, he "must show that counsel's performance w a s deficient. This requires showing that counsel made errors so serious that co u n sel was not functioning as the counsel guaranteed the defendant by the Sixth A m e n d m e n t." Id. at 687. In considering whether this showing has been acco m p lish ed , "judicial scrutiny of counsel's performance must be highly d eferen tial." Id. at 689. The courts seek to "eliminate the distorting effects of h in d sig h t" by examining counsel's performance from counsel's perspective at the tim e of the alleged error. Id. Second, Edwards "must show that the deficient p erfo rm an ce prejudiced the defense." Id. at 687. This requires him to d e m o n s tr ate "a reasonable probability that, but for counsel's unprofessional erro rs, the result of the proceeding would have been different." Id. at 694. In the co n tex t of guilty pleas, a movant must show that "there is a reasonable probability th at, but for counsel's errors, he would not have pleaded guilty and would have in sisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); Matthews v. U n ited States, 114 F.3d 112, 114 (8th Cir. 1997). The court need not address both co m p o n en ts if the movant makes an insufficient showing on one of the prongs. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).

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Because the government dismissed the extortion count in exchange for E d w a rd s ' guilty plea to the wire fraud charge, Edwards cannot demonstrate that h e was prejudiced by any alleged failure to move for dismissal of the extortion ch arg e. Ground 1 therefore fails. Ground 3 is also conclusively refuted by the reco rd . In response to Edwards' allegations that he was ineffective for failing to a d v is e him of the consequences that a guilty plea might have on Edwards' parole, d efen se counsel testified by affidavit2 as follows: C o n trary to Mr. Edwards' allegations in the petition in this case, we d iscu ssed that he was on federal parole. I made extensive efforts to o b tain an opinion from the United States Parole Commission reg ard in g what, if anything, would happen to his parole status upon a g u ilty plea in the criminal case. The Parole Commission would not c o m m it to any such position and I shared that response with Mr. E d w ard s. Ultimately, before the guilty plea, I advised Mr. Edwards th at the Parole Commission may or may not seek to revoke his parole u p o n his guilty plea. I also advised Mr. Edwards that, should the P aro le Commission seek to revoke him, his admissions at the time of th e guilty plea would be used against him and, of course, would be s u f fic ie n t to establish he had violated his parole. Specifically, Mr. E d w ard s' assertion that I advised him there would be no revocation o f his parole should he plead guilty is completely false. A t the plea hearing, Edwards told me under oath that he was satisfied with his atto rn ey's representation of him, and this statement carries a strong presumption o f verity. Lockhart, 921 F.2d at 157. Additionally, at the sentencing hearing

Edwards received a copy of defense counsel's affidavit at his current address [Doc. # 10], but he did not file an opposition to the testimony. - 14 -

2

co u n sel stated that Edwards "still faces potential parole revocation, and not any a ctio n has been taken on that, but there is a hold on him because of this charge." Edwards was present and heard this statement, yet he now makes contradictory statem en ts to the Court. Nothing in the record agrees with, supports, or co rro b o rates Edwards' allegation in any way. The record of the sentencing, E d w ard s' statements under oath and at the plea, and defense counsel's testimony a ll contradict Edwards' self-serving allegation and demonstrate that he is entitled to no relief on Ground 3 of his motion. In Ground 4, Edwards alleges that his attorney was ineffective for "refusing to correct" errors in Edwards' PSR. This claim fails because Edwards can d e m o n s tr ate no prejudice under Strickland that resulted from counsel's alleged erro r. As defense counsel and the Court correctly noted, Edwards' 1981 co n v ictio n did not affect his guidelines calculation so its inclusion in the PSR did n o t increase his guidelines range. Moreover, I sentenced Edwards to 12 months an d one day, which was below the guidelines range of imprisonment between 21 to 27 months. Edwards has also failed to demonstrate that counsel's performance w a s deficient. After Edwards told me that he believed his 1981 conviction had b een reversed, I adopted the PSR but included a notation in the statement of reaso n s page indicating that Edwards believed his 1981 conviction was set aside.

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T h e r ef o r e, the information that Edwards believes should have been in his file was actu ally included. Under these circumstances, Edwards' ineffective assistance of co u n sel claim fails. Ground 4 of Edwards' § 2255 motion will be denied. In Ground 5 of his motion, Edwards claims that his attorney coerced him in to pleading guilty. This allegation is conclusively refuted by the record. As set o u t above, I explained to Edwards that I could only accept his guilty plea if he w a s actually guilty of the crime, not to secure a better deal for his daughter. After b ein g given the opportunity during his plea colloquy to decide whether he really w an ted to plead guilty, Edwards told me that he was pleading guilty because he w as guilty. Edwards also testified under oath that no one coerced him into p lead in g guilty. Edwards cannot contradict these sworn statements now. Edwards' ineffective assistance of counsel claim fails, and Ground 5 of his § 2255 m o tio n will be denied. F in a lly , Edwards' "catch-all" ineffective assistance of counsel claim, which m erely restates the other ineffective assistance of counsel claims and then asserts th at his sixth amendment rights were "blatantly" violated, will be denied for the sam e reasons set out above. Ground 6 of Edwards' § 2255 motion will be d e n ie d . D. C ertifica te of Appealability

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A s Edwards has not made a substantial showing of the denial of a federal c o n s titu tio n a l right, this Court will not issue a certificate of appealability. See C o x v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 8 7 8 , 882-83 (8th Cir. 1994)) (substantial showing must be debatable among reaso n ab le jurists, reasonably subject to a different outcome on appeal or o th erw ise deserving of further proceedings). Accordingly, IT IS HEREBY ORDERED that the motion of George H. Edwards. Jr. to v acate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [#1] is d e n ie d . IT IS FURTHER ORDERED that this Court will not issue a certificate of a p p e a la b ility , as Edwards has not made a substantial showing of the denial of a fed eral constitutional right. IT IS FURTHER ORDERED that respondent's motion to dismiss [#3] is d en ied as moot. A separate Judgment in accordance with this Memorandum and Order is e n te re d this same date.

C A T H E R IN E D. PERRY U N IT E D STATES DISTRICT JUDGE Dated this 19th day of May, 2010.
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