Pugh v. United States of America
ORDER...defendant's motion to vacate sentence pursuant to § 2255 is denied...an evidentiary hearing is unnecessary to the determination of issues; a certificate of appealability also is denied. Signed by Honorable Joe Heaton on 02/10/2012. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
JOE EDDIE PUGH, JR.,
NO. CR-09-0232-HE (01)
Defendant Joe Eddie Pugh, Jr. pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The court sentenced defendant to a term of
imprisonment of 84 months followed by three years of supervised release. Defendant
appealed the conviction and sentence to the Tenth Circuit, which affirmed the judgment.
After the Supreme Court denied certiorari, defendant filed a motion challenging his
conviction pursuant to 28 U.S.C. § 2255.
Defendant asserts two grounds of relief in support of his motion based on ineffective
assistance of trial and appellate counsel. Defendant claims his trial attorney failed to advise
him that he had the right to retract his plea after the government sought the imposition of a
sentence that was outside the advisory Guidelines sentencing range calculated in the
Presentence Investigation Report. He also asserts that his attorney failed at his sentencing
hearing to object to the testimony of Detective Jeff Reed on the grounds of prejudice and
hearsay and to the court’s use of the preponderance of the evidence standard. Defendant
argues that his appellate counsel was ineffective for failing to assert trial counsel’s alleged
errors on appeal and challenge the length of his sentence.
To prevail on an ineffective assistance of counsel claim a defendant must show both
that “counsel’s performance fell below an objective standard of reasonableness” and that
“there is a reasonable probability that, but for counsel’s errors, the outcome of the
proceedings would have been different.” United States v. Tucker, 298 Fed.Appx. 794, 800
(10th Cir. 2008) (unpublished) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Applying this standard, defendant’s motion fails.
Only one of defendant’s claims merits much discussion – that based on his trial
counsel’s alleged conduct with respect to his plea. Defendant asserts his attorney failed to
advise him that the court could depart upwards from the applicable sentencing guideline
range and later failed to advise him of his right to withdraw his plea.
Defendant contends his counsel did not, before he entered his plea hearing, provide
him “with a full understanding as to what he was faced with concerning the court potentially
sentencing him to a higher sentence.” Doc. #2, Memorandum of Law, p. 7. However, in his
petition to enter plea of guilty defendant acknowledged that he understood that the maximum
sentence was ten years imprisonment, that the sentence was solely a matter for the judge to
decide, that the Sentencing Guidelines were only advisory in nature and the judge could
impose a sentence either above or below the Guidelines range, that the judge could consider
relevant conduct in determining defendant’s sentence and that “there [was] no limitation
placed on the information the judge [could] consider at the time of sentencing concerning
[defendant’s] background, character, and conduct so long as the information [was] reliable.”
Doc. #19, ¶¶18, 19(a), 25-27. During the plea hearing the court specifically questioned
defendant about the plea petition. Defendants stated he recalled going over it with his
attorney and said no, when asked whether it included any questions he did not understand or
any issues or questions of any nature he might have about it.1 Defendant was again advised
of the maximum prison term and informed that the Sentencing Guidelines were only advisory
and that the judge could take relevant conduct into account when setting defendant’s
sentence. He also was told that if he disagreed with the Guidelines recommendation once
it was calculated, it was very unlikely he would be permitted, on that basis alone, to withdraw
his guilty plea. At the conclusion of the plea hearing, when asked if he knew of any reason
why the court should not accept his guilty plea, defendant responded “No.” As defendant
was well informed regarding the sentencing possibilities by the plea petition he signed and
by the court at his plea hearing, he cannot show prejudice from his counsel’s claimed failure
to “fully” advise him of the various sentencing possibilities before he pleaded guilty.
Defendant also contends his attorney failed to tell him he “[had] the right to retract
his plea based on the fact the government filed a motion to impose a sentence upward
ranging outside the original guidelines of the Presentence Investigation Report.”
Memorandum, p. 2. Here, again, defendant has failed to state a basis for relief, even
Defendant makes the unsubstantiated assertion that “[i]t was expressed to the court that
the petitioner lacked the sufficient education to understand some of the decision he was making , as
a result of being influenced ....” Memorandum, p. 7.
assuming his counsel did not advise him of the option of moving to withdraw his plea.2
Defendant’s claim is based on a misapprehension of the law. Once he pleaded guilty,
defendant did not have an absolute right to withdraw his plea. Pursuant to Fed.R.Crim.P.
11(d)(1)(B), a defendant may withdraw a guilty plea “after the court accepts the plea, but
before it imposes sentence if ... the defendant can show a fair and just reason for requesting
the withdrawal.” The court assesses whether there is a “fair and just reason for withdrawal”
in light of the following factors:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal
would prejudice the government; (3) whether the defendant delayed in filing
his motion, and if so, the reason for the delay; (4) whether withdrawal would
substantially inconvenience the court; (5) whether close assistance of counsel
was available to the defendant; (6) whether the plea was knowing and
voluntary; and (7) whether the withdrawal would waste judicial resources.
United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005) (quoting United States v.
Sandoval, 390 F.3d 1294, 1298 (10th Cir.2004)). Here, there is no reason to believe the court
would have granted the motion. Defendant has never asserted his innocence. Statements
such as “[t]here are a number of things that could have taken place, to prevent the petitioner
from being found guilty, based on the representation of counsel. The exclusionary rule may
have prevented the government from putting on evidence, due to the fact that it could be
considered prejudicial,” Memorandum, p. 8, are not assertions of innocence. Defendant even
states at one point in his brief: “let the record reflect, petitioner did in fact get caught with
Because of the unlikelihood of success of a motion to withdraw, counsel was not deficient
for failing to advise defendant that he could move under Rule 11 to withdraw his plea.
a Ruger P-95 9mm handgun.” Memorandum, p. 3. Defendant admitted his guilt during the
plea colloquy and the court finds no basis to conclude that his plea was other than voluntary
Defendant has not offered a “fair and just reason for withdrawal.” There was no plea
agreement in this case and therefore is no basis for arguing the government acted
inappropriately or unexpectedly in arguing for a particular sentence. Defendant had been
informed that the court could deviate from the advisory Guidelines recommendation and he
knew that he could be sentenced up to ten years in prison. The lack of a valid reason to
withdraw, coupled with defendant’s acknowledgment of guilt at the plea hearing and his
failure to assert his innocence, would have doomed any motion to withdraw he might have
filed. The lack of probability of success of such a motion bars defendant’s claim that his
counsel was deficient for not advising him he could seek relief from his plea under Rule 11.
As for defendant’s claim that his appellate counsel was ineffective, the court has
considered the merits of the issues defendant asserts appellate counsel omitted from the
appeal. As they lack merit, appellate counsel did not perform deficiently by failing to raise
them. Defendant’s assertion that his appellate counsel failed to argue that his sentence was
excessive also fails as counsel did argue on appeal that defendant’s “sentence [was]
substantively and procedurally unreasonable.” United State v. Pugh, 380 Fed.Appx. 776,
777 (10th Cir. 2010) (unpublished), cert. denied, ___ U.S. ___ (2010).
Defendant includes other arguments in his Memorandum that essentially challenge
his sentence. He asserts the court failed to give him notice that it was contemplating a
departure, though notice had been provided. See Doc. # 26.3 He also contends the court
abused its discretion by “considering factors outside of the record pursuant to section
3553(a),” Memorandum, p. 5, and did not adequately explain the reason for the departure.
He claims the government failed to demonstrate “by a clear preponderance of the evidence,
that the enhancement was appropriate.” Id at 6. These alleged errors, which defendant does
not attribute to his counsel,4 either were asserted and rejected by the Tenth Circuit in
defendant’s direct appeal or could have been raised on direct appeal. Therefore they are
barred.5 Tucker, 298 Fed.Appx. at 801 (“In sum, the district court properly denied Tucker's
§ 2255 motion because his claims were either rejected on direct appeal, or should have been
raised on direct appeal and are not saved by ineffective assistance of appellate counsel.”).
Accordingly, defendant’s § 2255 motion is DENIED. An evidentiary hearing is
unnecessary to the determination of these issues. See 28 U.S.C. § 2255(b) (prompt hearing
Defendant states in the affidavit attached to his § 2255 motion, that he did “not recall
Attorney William P. Early expressing to me about the upward departure filed by the government.”
That bare allegation is insufficient to demonstrate lack of notice.
Defendant does make the additional arguments that his trial attorney was ineffective
because he failed to object on the grounds of hearsay and prejudice to the testimony of Detective
Jeff Reed, who testified at his sentencing, and failed to object to the court’s use of the
preponderance of the evidence standard during the hearing. Defendant has not shown his counsel’s
performance was deficient. The court applied the correct standard of proof, United States v.
Magallanes-Torres, 386 Fed.Appx. 766, 771 (10th Cir. 2010) (unpublished) and “[a] sentencing
judge may properly consider hearsay evidence as long as such evidence is sufficiently reliable.”
United States v. Ferguson, 2012 WL 29047, at *2 (10th Cir. 2012) (unpublished). Contrary to
defendant’s assertion, his attorney did object to the court’s consideration of other uncharged or
unconvicted conduct in determining the sentence that was imposed.
As defendant did not show both good cause and actual prejudice, or that failure to consider
these arguments would result in a fundamental miscarriage of justice, his procedural default is not
excused. Tucker, 298 Fed.Appx. at 798.
required “[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief”). A certificate of appealability also is DENIED. See 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Dated this 10th day of February, 2012.
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