Cary v. USA

Filing 13

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Michael G Cary, Sr. It is accordingly recommended that the motion to vacate, set aside or correct Cary's sentence pursuant to 28 U.S.C. § 2255 be denied and the case be dismissed with prejudice. A certificate of appealability should be denied. Signed by Magistrate Judge Don D. Bush on 10/22/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MICHAEL G. CARY, SR., #15321-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:09cv561
CRIM. NO. 4:08CR00093-001

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Michael G. Cary, Sr., an inmate confined at F.C.I. Big Spring, filed the above-styled
and numbered motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The
cause of action was referred for findings of fact, conclusions of law and recommendations for the
disposition of the motion.
Facts of the Case
On December 3, 2008, Cary was sentenced to 60 months of imprisonment after a plea of guilty
to conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i). He was also ordered to pay restitution in the amount of
$4,948,930.64. He did not appeal the conviction.
The present § 2255 motion was filed on November 16, 2009. Cary argued that he is entitled to
relief because the restitution order was improper, the wrong standard of proof for restitution was used,
the Court failed to consider his ability to pay restitution, and the alleged losses should have been

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computed as net proceeds as opposed to gross receipts. The Government filed a response (docket entry
#10) on March 13, 2012. Cary filed a reply to the response (docket entry #11) on May 18, 2012.
Discussion and Analysis
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a §
2255 proceeding may not bring a broad based attack challenging the legality of the conviction. The
range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be drawn
between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.”
United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th Cir. 1992) (citations omitted). A collateral
attack is limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991).
Paragraph 9 of the plea agreement contains the following waiver provision:
9.
Waiver of Right to Appeal or Otherwise Challenge Sentence: Except as otherwise
provided herein, Defendant expressly waives the right to appeal his conviction and sentence on
all grounds. Defendant further agrees not to contest his sentence in any post conviction
proceeding, including, but not limited to a proceeding under 28 U.S.C. § 2255. Defendant,
however, reserves the right to appeal the following: (a) any punishment imposed in excess of
the statutory maximum, and (b) a claim of ineffective assistance of counsel that affects the
validity of this waiver itself.
The terms of the waiver specifically addressed the types of issues that may be raised on direct appeal,
and Cary agreed not to contest his sentence in a § 2255 proceeding. Cary’s sentence was in accordance
with the plea agreement.
The Fifth Circuit has upheld the informed and voluntary waiver of post-conviction relief in
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d 463,
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465 (5th Cir. 1995), the Fifth Circuit held that a waiver may not be enforced against a § 2255 movant
who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary. In
United States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an ineffective assistance
of counsel claim raised in a § 2255 proceeding survives a waiver only when the claimed assistance
directly affected the validity of that waiver or the plea itself. More recently, the Fifth Circuit reiterated
that it has upheld § 2255 waivers except for when there is an ineffective assistance of counsel claim that
affects the validity of that waiver or the plea itself or when the sentence exceeds the statutory
maximum. United States v. Hollins, 97 Fed. Appx. 477, 479 (5th Cir. 2004). The Court recently
reaffirmed the basic principle that the waiver of collateral relief should be enforced if it was knowingly
and voluntarily entered. United States v. Ramirez, 416 Fed. Appx. 450, 452-53 (5th Cir. 2011).
In the present case, Cary asserted in his reply to the answer that his plea agreement was not
intelligently entered because counsel misinformed him about the exposure he faced and the waiver of
his appellate rights. Despite the appearance of being voluntary, he allegedly did not voluntarily and
knowingly waive his right to appeal.
The plea agreement in this case advised Cary that the maximum sentence he faced was not more
than 20 years for both counts of the information. The plea agreement set forth an agreed upon sentence
of 60 months of imprisonment and forfeiture in the amount of $6,172,901.25, at a minimum, or the
amount of restitution calculated by probation services, pursuant to Fed. R. Crim. P. 11(c)(1)(C). In the
plea agreement, Cary waived his rights (1) to plead not guilty, (2) to be tried by a jury, (3) to have his
guilt proved beyond a reasonable doubt, (4) to confront and cross-examine witnesses, (5) to call
witnesses in his defense, and (6) to not be compelled to testify against himself. Cary stipulated that the
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plea of guilty was freely and voluntarily given and was not the result of force, threats, or promises other
than those set forth in the plea agreement. He made the following stipulation concerning the
representation of counsel:
Defendant has thoroughly reviewed all legal and factual aspects of this case with his lawyer and
is fully satisfied with the lawyer’s legal representation. Defendant has received satisfactory
explanations from his lawyer concerning each paragraph of this plea agreement, each of his
rights affected thereby, and the alternatives to entering a plea. After conferring with counsel,
Defendant concedes that he is guilty and has concluded that it is in his best interest to enter this
agreement rather than proceeding to trial.
At the change of plea hearing, Cary specified that he understood the charges and the elements
of the charges against him. He testified that he understood the range of punishment, including the
forfeiture of property and restitution. He stated that he understood that he would forfeit $6,172,901.25,
at a minimum, or the amount of restitution calculated by pretrial. He testified that he was pleading
freely and voluntarily. He added that no one forced him or threatened him or made any promises other
than those contained in the agreement. He told the Court that he was competent to make the plea of
guilty. He asserted that he was giving up the right to appeal and to contest his sentence in a § 2255
proceeding.
At sentencing, the Court discussed the amount of restitution. The losses were over $6 million
and Cary still owed about $5 million. See TR, page 18. The Court ordered Cary to pay restitution
totaling $4,948,930.64. The amounts involved were fully discussed in the plea agreement, at the change
of plea hearing and at sentencing.
“Solemn declarations in open court carry a strong presumption of verity. United States v.
Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74

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(1997)); see also United States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990) (holding that a defendant’s
failure to object at trial is a factor that weighs against his claim of inadequate comprehension). Thus,
a defendant may not ordinarily rebut his sworn testimony while under oath. United States v. Cervantes,
132 F.3d 1106, 1110 (5th Cir. 1998). The Fifth Circuit affords “great weight to the defendant’s
statements at the plea colloquy.” United States v. Cothran, 302 F.3d 279, 282-84 (5th Cir. 2002).
Furthermore, official documents, such as a written plea agreement, “are entitled to a presumption of
regularity and are accorded great evidentiary weight.” Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th
Cir. 1985).
When determining whether a plea is voluntary, a reviewing court considers all relevant
circumstances and examines what conditions are required for a valid plea and whether these conditions
have been met. United States v. Washington, 480 F.3d 309, 315 (5th Cir. 2007). These conditions
include, among other things, that the defendant had notice of the charges against him, understood the
constitutional protections he has waived, and had access to the competent advice of counsel. Id. A
defendant’s statements - that his plea was knowing and voluntary and that he understood the rights he
was waiving - create a presumption that the plea is valid. Id. Because a defendant’s assertion at a plea
colloquy that no one had attempted to force him to plead guilty carries a strong presumption of verity,
the district court does not have a duty to undertake a more searching inquiry into whether a defendant’s
plea was voluntary when the court received no objective information that would have reasonably put
it on notice that further inquiry would be needed. United States v. Abreo, 30 F.3d 29, 31 (1994).
A defendant’s prior attestations of the voluntariness of his plea is not an absolute bar to a
subsequent contention that his plea was involuntary, but it imposes a heavy burden of proof. United
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States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1984). To overcome that burden, the defendant must
show that his plea was so much the product of misunderstanding, duress, or misrepresentation by others
as to make the plea a constitutionally inadequate basis for imprisonment. Id. Once a valid guilty plea
has been entered, all non-jurisdictional defects in the proceedings are waived, including all claims of
ineffective assistance of counsel. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); Lampazianie, 251
F.3d at 526.
The plea agreement and Cary’s testimony gives every indication that the plea of guilty was
entered knowingly and voluntarily and that the waiver of appeal was entered knowingly and voluntarily.
The evidence shows that he understood the amount of restitution involved and his claims to the contrary
are disingenuous. The evidence shows that he was satisfied with his attorney and that his attorney was
effective. In support of the present motion, Cary has offered nothing other than conclusory allegations
and bald assertions, which are insufficient to support a collateral challenge to his conviction. See Miller
v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990);
Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). The Court concludes that Cary has not shown that
his guilty plea and waiver were not entered knowingly or voluntarily or were the product of ineffective
assistance of counsel. The waiver contained in paragraph 9 should be enforced and the present § 2255
motion should be denied.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B).
Although Cary has not yet filed a notice of appeal, it is respectfully recommended that this Court,
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nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of
appealability because “the district court that denies a petitioner relief is in the best position to determine
whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues
before the court. Further briefing and argument on the very issues the court has just ruled on would be
repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

In cases where a district court rejected a petitioner’s

constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell,
327 F.3d 429, 431 (5th Cir. 2003). “When a district court denies a habeas petition on procedural
grounds without reaching the petitioner’s underlying constitutional claim, a COA should issue when
the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Cary’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing

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Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court find that Cary is
not entitled to a certificate of appealability as to his claims.
Recommendation
It is accordingly recommended that the motion to vacate, set aside or correct Cary’s sentence
pursuant to 28 U.S.C. § 2255 be denied and the case be dismissed with prejudice. A certificate of
appealability should be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and
file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
.

de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions
accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430
(5th Cir. 1996) (en banc).
SIGNED this 22nd day of October, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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