George v. United States of America
MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 32 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 3/18/2014. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LEE AARON GEORGE, JR.
UNITED STATES OF AMERICA
CIVIL ACTION NO. 1:11-CV-120
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant, Lee Aaron George, a federal prisoner, filed this motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court. The
Magistrate Judge recommends the motion be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Movant filed
objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and applicable law. See FED . R. CIV . P. 72(b). After
careful consideration, the Court finds the objections lacking in merit.
As to the voluntariness of the plea, movant first testified at the evidentiary hearing that Mr.
Hamm did, in fact, read the plea agreement after movant made the decision along with his family to
sign the agreement knowing he was facing the potential of a life sentence. Movant later testified,
however, that Mr. Hamm only spent six to seven minutes going over the agreement with him and then
did not go over it completely. Even discounting these inconsistencies in movant’s testimony, the
record reveals that after two recesses, movant informed this Court he was ready to enter his plea and
that both this Court and the AUSA reviewed the charges and the plea agreement with movant on the
record. As stated by the Magistrate Judge:
Movant was advised of the mandatory minimum penalty of 10 years, without
the enhancements, and the maximum possible penalty of life, a fine not to
exceed $4 million, a term of supervised release of not less than five years and
not more than life, and a mandatory special assessment of $100 due and
payable before sentencing. With respect to the 11(C)(1)(c) agreement, the
record reveals that movant affirmed the parties had gone over the agreement
and that the parties stipulated that movant had one prior felony drug
conviction which would allow for a mandatory minimum sentence of 20 years.
Movant affirmed that his plea was voluntary and that no one had forced,
threatened or coerced him in any way to enter the plea. Finally, movant
affirmed that his decision to plead guilty and to enter the plea agreement was
based on discussion he had with his attorney, that he specifically reviewed the
plea agreement with Mr. Hamm, that he read the plea agreement personally,
and he understood the terms of the plea agreement. Movant also affirmed that
he understood the plea agreement before he signed it. Finally, after the AUSA
reviewed the terms of the plea agreement on the record, movant stated
affirmatively that he understood he was waiving all his rights to appeal the
conviction and sentence on all grounds, also including any post-conviction
proceedings such as a writ of habeas corpus, except for a claim that the
punishment imposed was in excess of the statutory maximum, a claim of
ineffective assistance of counsel that affects the validity of the waiver of the
plea and any challenge to the general jurisdiction of the court.
Reviewing courts give great weight to the defendant’s statements at the plea colloquy. See Blackledge
v. Allison, 431 U.S. 63, 73, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (stating that solemn declarations
in open court carry a strong presumption of veracity); see also United States v. Cothran, 302 F.3d
279, 283-84 (5th Cir. 2001); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting
district court’s determination, made during the plea colloquy, that the defendant had not been
pressured, rather than the defendant’s later self-serving statements); United States v. Abreo, 30 F.3d
29, 31 (5th Cir. 1994) (placing great weight on defendant’s statements during plea colloquy). A plea
is not involuntary solely because a defendant pleads guilty out of a desire to limit the possible penalty.
Jones v. Estelle, 584 F.2d 687, 689-90 (5th Cir. 1978) (citing North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“That he would not have pleaded except for the opportunity to
limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product
of a free and rational choice, especially where defendant was represented by competent counsel whose
advice was that the plea would be to defendant’s advantage.)). Based on the foregoing, the Court
finds counsel was not ineffective in communicating the plea offer to movant and movant’s plea was
voluntary. As a result, movant’s other claims of ineffective assistance of counsel that pertained to
actions prior to the entry of the plea agreement are barred by the waiver.1
As to movant’s claim that Mr. Fong was ineffective for failing to file a notice of appeal, the
Magistrate Judge found that movant failed to show by a preponderance of the evidence that movant
actually made the initial request to counsel to file an appeal. In his objections, movant references a
letter he sent to Mr. Fong in February of 2010 that was allegedly notice to him that he wanted to file
an appeal. The letter states the following:
I would just like to inform you of a motion that I had previously filed before
you were retained as my attorney. Which was motion to the clerk to forward
to the (5th Cir.), for Abuse of Discretion by the Courts on Oct. 19 and Oct. 20.
Which I mailed on Nov. 2, 2009. Just so you would not be suddenly suprised
[sic]. If you had not already been informed by the courts.
I also would like to thank you for your diligence and effectual assistance that
you’ve shown thus far. I’m so grateful to have you as my attorney, which I
know it’s truly full assurence [sic] for Great Comfort.
May God Bless You and Your’s!
Exhibit E. First, there is no reference in this letter to an actual notice of appeal and the Court is
hard-pressed to find this letter, which was mailed before sentencing, sufficient to give actual notice
that movant wanted to file an appeal after sentencing in April of 2010. Even assuming Mr. Fong
had obtained a copy of the actual Notice of Appeal movant filed prematurely on November 5, 2009,
after he entered into his plea agreement (which movant references in his letter to Mr. Fong as an
“Abuse of Discretion by the Courts”), again, the Court cannot find that this was sufficient notice
to Mr. Fong that movant would want to later appeal even after sentencing in April of 2010. In fact,
there is no correspondence from movant to Mr. Fong that every explicitly mentions a request to file
a notice of appeal or an inquiry into the status of an appeal. The Magistrate Judge did not err in
determining movant failed to meet his burden in establishing with a preponderance of the evidence
that movant made a request to Mr. Fong to file a notice of appeal after his sentencing in April of
As to movant’s claim that Mr. Hamm’s performance somehow prejudiced him because he missed out on the
more favorable 15 year plea offer, the Court notes that this claim is not presently before the Court. Regardless, the record
clearly reflects that movant refused to even consider the offer when Mr. Hamm went to the jail to convey the offer to him.
Missourri v. Frye requires that counsel convey the offer before it expires and movant conceded to as much at the
evidentiary hearing. 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
As to movant’s claim that Mr. Fong failed to consult post sentencing to determine movant’s
intent to appeal, the Court must determine counsel’s failure to consult with the defendant itself
constitutes deficient performance. See Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029,
145 L.Ed.2d 985 (2000). “Consult” in this context means that counsel advised the defendant about
the advantages and disadvantages of an appeal and made a reasonable effort to discover the
defendant’s wishes. Id. That said, failure of counsel to consult his client about appellate rights does
not, in and of itself, establish ineffective assistance of counsel. According to the Supreme Court,
the following test applies to determine whether counsel has a constitutionally imposed duty to
consult with a defendant about a potential appeal: whether there is a reason for counsel to think
either (1) “that a rational defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal)” or (2) “that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.” Id. at 480. In making this determination, the Court
looks at the totality of the circumstances regarding the information counsel knew or should have
known. Id. “Although not determinative, a highly relevant factor in this inquiry will be whether
the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of
potentially appealable issues and because such a plea may indicate that the defendant seeks an end
to judicial proceedings.” Id. In addition, even if counsel violates the duty to consult about an
appeal, a defendant must still demonstrate prejudice, i.e., “had the defendant received reasonable
advice from counsel about the appeal, he would have instructed his counsel to file an appeal.” Id.
The Court has already determined that movant, in the present case, failed to reasonably
demonstrate to Mr. Fong he was interested in appealing. Furthermore, on the present record, the
The Court also notes that the testimony of movant’s aunt, Delores Davis, was not sufficient to find by a
preponderance of the evidence that she asked Mr. Fong to file an appeal. She merely testified that it was her belief
that Mr. Fong was supposed to help her nephew with “a new case” and in her opinion that meant an appeal.
Court also finds that no rational defendant in movant’s position would have wanted to appeal.
Given the potential for a life sentence if he stood trial, and possibly automatic life if the
Government had not agreed to drop one of the enhancements, a 20 year sentence, while lengthy,
presented a far better alternative to spending life in prison. Furthermore, all of movant’s issues he
claims he would have argued on appeal appear to be frivolous.
First, as to movant’s claims of ineffective assistance of counsel, in most cases a motion
brought under § 2255 is preferable to direct appeal for deciding these types of claims. When an
ineffective assistance claim is brought on direct appeal, appellate counsel and the court must
proceed on a trial record not developed precisely for the object of litigating or preserving the claim
and thus often incomplete or inadequate for this purpose. See Massaro v. United States, 538 U.S.
500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). Given these obstacles, it is unlikely a rational
defendant would pursue such claims on direct appeal.3 As to movant’s claim that this Court abused
its discretion in denying him a continuance and the opportunity to retain counsel after eleven
separate trial settings and three prior appointments of counsel, it is also likely that no rational
defendant would pursue this claim either. This Court found that there was no conflict sufficient to
warrant a continuance given movant appeared to simply disagree with Mr. Hamm’s strategy and
tactics. The Sixth Amendment does not guarantee a defendant the absolute right to the counsel of
his choice. See United States v. Loving, 254 F.3d 71, 2001 WL 502803 (5th Cir. 2001) (not
designated for publication). Furthermore, granting the motion for continuance on the morning of
pre-trial, after eleven prior trial settings, would have resulted in further significant delays given Mr.
At the evidentiary hearing, the Government provided a computer copy of a letter M r. Hamm found in his file
that he believed was sent to movant documenting the problems he was having in making contact with movant’s witnesses
in order to obtain further discovery. In addition, the Government provided a computer copy of another letter M r. Hamm
found in his file that memorialized the Government’s offer of 15 years and M r. Hamm’s belief that this was a good offer
given the notice of enhancement of prior convictions that could not be challenged and would ultimately expose movant
automatically to a life term. In addition, with respect to the motions movant wanted M r. H amm to file, Mr. Hamm
testified that he did not have a complete memory of the case. He stated, however, that he always reviews the discovery
he has and if there is a valid basis to file a motion to suppress, he will always pursue that avenue but obviously found
no basis to do so in this case. As to movant’s claim that M r. Hamm should have filed a motion stating that the federal
district court lacked jurisdiction, Mr. Hamm testified that it would have been a frivolous motion as there was no
foundation in the law to support such an argument. Finally, Mr. Hamm testified that with respect to requesting a
detention hearing, he would never have recommended that strategy as movant would not have received credit for his
federal time if he was on a state parole.
Fong’s statement that he would need at least two weeks to prepare. The Fifth Circuit has found
under similar circumstances that a trial court did not abuse its discretion in denying a motion to
withdraw along with a motion for continuance under similar circumstances. Id. at *4. Finally, to
the extent movant argues he would have appealed Mr. Fong’s failure to obtain a downward
departure, the Court notes that the Government retains sole discretion over its decision whether or
not to make a § 5K1.1 motion and a defendant cannot challenge the government’s refusal to seek
a downward departure unless the refusal as based on an unconstitutional motive. See United States
v. Solis, 169 F.3d 224, 226-227 (5th Cir. 1999); see also United States v. Washington, 53 F.3d 1282,
1995 WL 295975 (5th Cir. 1995) (not designated for publication). Movant has made no such
argument that the refusal of the Government to seek a downward departure was based on an
Based on the foregoing, the Court rejects movant’s claim that Mr. Fong performed
deficiently in not pursuing an appeal on his behalf. Because movant must satisfy both prongs of
the Strickland test, his failure to establish deficient performance makes it unnecessary to examine
the prejudice prong. Movant is not entitled to the relief that he seeks.
Accordingly, the objections of petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate
Furthermore, the court is of the opinion movant is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed
unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a
certificate of appealability requires the movant to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the movant need not
establish that he would prevail on the merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could resolve the issues in a different manner,
or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S.
at 483-84. Any doubt regarding whether to grant a certificate of appealability should be resolved
in favor of the movant, and the severity of the penalty may be considered in making this
determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849
In this case, movant has not shown that the issue would be subject to debate among jurists
of reason. The questions presented are not worthy of encouragement to proceed further. Therefore,
the movant has failed to make a sufficient showing to merit the issuance of certificate of
appealability. Accordingly, a certificate of appealability will not be issued.
SIGNED this the 18 day of March, 2014.
United States District Judge
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