Wartson v. USA
ORDER by Judge Ronald A. White denying petitioner's motion pursuant to 28 USC Section 2255 (Re: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) ) (lal, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
WILLIE LEE WARTSON,
Case No. CIV-15-048-RAW
Before the court is the motion of the petitioner pursuant to 28 U.S.C. §2255.
Defendant waived indictment and pled guilty to a felony information charging one count of
possession of a stolen firearm, in violation of 18 U.S.C. §922(j). Defendant was sentenced
to a term of 120 months, (#46 in 13-CR-61-RAW), a sentence agreed to by the parties
pursuant to Rule 11(c)(1)(C) F.R.Cr.P., as reflected in the plea agreement. (See #37 in 13CR-61-RAW). No direct appeal was taken.1 For his first ground, petitioner contends his trial
counsel was ineffective.
To establish ineffective assistance of counsel, a movant must show (1) deficient
performance that (2) resulted in prejudice by demonstrating “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” United States v. Rubio-Ayala, 596 Fed.Appx. 594, 596 (10 th Cir.2014)(quoting
Strickland v. Washington, 466 U.S. 668 (1984)). A court may address the performance and
In the plea agreement, defendant waived his right to appeal (except from a sentence that exceeds
the statutory maximum) and his right to file a §2255 motion (except for claims based on effective assistance
of counsel which challenge the validity of the guilty plea or the waiver itself).
prejudice prongs in any order, but need not address both if movant fails to make a sufficient
showing of one. United States v. Hall, 620 Fed.Appx. 681 (10th Cir.2015)(quoting Cooks v.
Ward, 165 F.3d 1283, 1292-93 (10 th Cir.1998)).
Deficient performance means that counsel’s representation fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688. When evaluating defense counsel’s
performance, the court must “indulge a ‘strong presumption’ that counsel’s conduct falls
within the wide range of reasonable professional assistance because it is all too easy to
conclude that a particular act or omission of counsel was unreasonable in the harsh light of
hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002)(citing Strickland, 466 U.S. at 689).
Movant’s first ground for relief is that trial counsel was ineffective because (1) he
coerced petitioner to plead guilty and (2) he knew that the firearm in question was not stolen.
Neither claim survives review of the written plea agreement and the plea colloquy. The plea
agreement states that “[t]he defendant agrees to voluntarily plead guilty to and admits being
guilty” of the charge in the information.
(#37 in 13-CR-61-RAW, page 1 of 10).
Defendant’s initials appear at the bottom of the page. The next page of the plea agreement
sets forth the factual basis for the plea, and reflected defendant’s agreement that the
government could prove the facts beyond a reasonable doubt and the facts accurately
represent the defendant’s conduct. Included in those facts are the statements that the
defendant possessed the firearm, that the firearm was stolen, and that defendant “had
reasonable cause to believe the firearm was stolen.”2 Again, defendant’s initials are at the
bottom of the page.
At the change of plea hearing, defendant affirmed that the plea agreement section on
factual basis would stand as defendant’s “version of what happened.” (#51 in 13-CR-61RAW, at 16.15 - 17.1) Absent a believable reason justifying departure from their apparent
truth, the accuracy and truth of an accused’s statements at a Rule 11 proceeding at which his
plea is accepted are conclusively established. See United States v. Glass, 66 Fed.Appx. 808,
810 (10th Cir.2003). The court sees no such reason in this case. Defendant has shown neither
deficient performance nor prejudice as to this ground.3
Defendant’s second ground is that the sentence was miscalculated under the
Sentencing Guidelines. Defendant calculates a sentencing range under his criminal history
for a §922(j) offense and protests that he was sentenced to the statutory maximum. Of
course, that was part of the plea negotiation. A plea to §922(j) would not have been available
had the government not substituted an information for the indictment. Conviction on the
initial charge (§922(g)(1)) would have resulted in a sentence of not less than fifteen years,
pursuant to 18 U.S.C. §924(e). A guilty plea may be involuntary if an attorney misrepresents
This tracks the elements of a §922(j) offense. See United States v. Al-Rekabi, 454 F.3d 1113, 1124
(10th Cir.2006). In the present motion, petitioner also suggests he did not “possess” the firearm because it
was buried in the yard. The court agrees with the government that “Defendant misunderstands the legal
concept of possession.” (#8 at page 12 of 16).
To the contrary, the government’s response (#8) to the present motion establishes that defense
counsel’s negotiation enabled defendant to avoid a mandatory 15 year sentence under the Armed Career
the consequences of the plea, but a court reviewing a claim of ineffective assistance of
counsel may consider the record of the change of plea hearing to evaluate whether defendant
was on notice of the punishment he faced by proceeding with a guilty plea. United States v.
Jordan, 2016 WL 5818562, *5 (N.D.Okla.2016)(citing United States v. Rhodes, 913 F.2d
839 (10th Cir.1990)). The record before the court clearly establishes defendant knew of the
sentence contemplated by the Rule 11(c)(1)(C) agreement and there was no
misrepresentation by counsel.
No evidentiary hearing is required by §2255 if “the motion and files and records of
the case conclusively show that the prisoner is entitled to no relief.” United States v. Clare,
2016 WL 4707908, *4 (10th Cir.2016). The present motion will be denied without a hearing.
It is the order of the court that the petition pursuant to 28 U.S.C. §2255 is hereby
ORDERED THIS 11th DAY OF OCTOBER, 2016.
Dated this 11th day of October, 2016.
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