Maines v. USA

Filing 30

ORDER ACCEPTING MAGISTRATE JUDGES REPORT, IN PART, and PARTIALLY DENYING MOTION UNDER 28 U.S.C. § 2255, SETTING REMAINING CLAIMS UNDER 28 U.S.C. § 2255 FOR HEARING granting in part RE: 23 Findings and Recommendations on Case. (Ordered by Judge Jane J Boyle on 2/9/2016) (mem)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAMUEL WILLIAM MAINES,
ID # 44442-177,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:13-CV-4631-B
(3:12-CR-0151-B)

ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT, IN PART, and
PARTIALLY DENYING MOTION UNDER 28 U.S.C. § 2255,
SETTING REMAINING CLAIMS UNDER 28 U.S.C. § 2255 FOR HEARING
Now pending before the Court is defendant/movant Samuel William Maines’s motion under
28 U.S.C. § 2255 to vacate, set aside or correct sentence, accompanied by a memorandum in
support. After a response filed by the government, amended pleadings, an additional response, and
a reply, the magistrate judge filed a findings, conclusions, and recommendation. Movant Maines filed
written objections, and as directed by a Court order, the government provided a response to Maines’s
written objections.
After reviewing all relevant matters of record in this case, including the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge, Movant Samuel William
Maines’s objections thereto, and the government’s response to Maines’s written objections, in
accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the opinion that several
of Maines’s grounds for relief should be denied. As to the remaining grounds for relief, the Court will
schedule a hearing on those grounds only and, pursuant to Rule 8 of the Rules Governing Section
2255 Proceedings in the District Courts, the Court will appoint counsel for Maines for that hearing.
The Court will also ask for additional briefing.

Grounds for Relief
The identification of the exact grounds for relief pending before the Court is complicated by
the manner and timing of how the claims were raised. In the 28 U.S.C. § 2255 motion filed in this
case Movant Maines raised the following claims:
(1) Ground One: [Movant’s first attorney] rendered ineffective assistance at the
initial appearance stage of the proceedings (a) by failing to challenge the validity of
Movant’s arrest and advising Movant to waive a probable cause hearing, (b) by failing
to object to errors in the government’s motion for detention which led to a
presumption against Movant’s release on bail (c) by failing to object to false and
prejudicial statements made by government witnesses in support of Movant’s pretrial
detention, (d) by failing to argue facts in support of Movant’s release on bail, and (e)
by failing to advise Movant of his right to testify at the detention hearing.
(2) Ground Two: [Movant’s second attorney] rendered ineffective assistance at the
pre-trial stage of the proceedings by failing to move to suppress the evidence on the
grounds (a) that Movant’s statements to law enforcement officials were compelled in
violation of Movant’s right against self incrimination, (b) that the initial search of a
certain computer, via the internet, purportedly belonging to Movant, was illegal, (c)
that the affidavit in support of the search warrant contained materially false
statements and omissions, and failed to establish probable cause, (d) that the search
warrant for Movant’s residence was overly broad and lacked particularity, and (e)
that the search was unreasonable and that the “good faith” exception did not apply.
(3) Ground Three: [Movant’s second attorney] rendered ineffective assistance at the
signing of the guilty plea stage of the proceedings by advising, urging, and inducing
Movant into signing the government’s plea agreement involuntarily (a) without
conducting any investigations [sic] into the facts of the case and the law in relation
to the facts, (b) by advising and urging Movant to plead guilty to a non-existent
offense, (c) by erroneously advising Movant that his maximum sentence exposure at
trial was 30 years, (d) without disclosing to Movant, prior to seeking Movant’s
signature on the plea agreement, the government’s version of the facts, which [the
second attorney] knew or should have known were materially untrue, or explaining
that Movant would be required to admit as true those same untrue facts, and (e) by
improperly and unethically advising Movant that in order to not plead guilty Movant
would have to implicate and accuse his father in the indicted offense.
(4) Ground Four: [Movant’s third attorney] rendered ineffective assistance at the
entry of the guilty plea stage of the proceedings (a) by, notwithstanding that Movant
adamantly asserted his innocence, insisting and persisting that Movant appear before
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the Court and enter his guilty plea, (b) by threatening that if Movant did not plead
guilty Movant would be charged and convicted of “Obstruction of Justice,”
whereupon, Movant would receive an additional 20 years consecutive to the 30 years
for the underlying offense, and (c) by instructing Movant to answer affirmative “Yes”
and “No” answers only to the Court’s questions at the colloquy in order to falsely
indicate that Movant was guilty of the indicted offense, had not been threatened by
counsel, had been properly advised by counsel, and was satisfied with counsel.
(5) Ground Five: [Movant’s third attorney] rendered ineffective assistance at
sentencing by failing to object to (a) the 5 level increase for distribution with the
expectation or receipt of a thing of value per § 2G2.2(b)(3)(B), (b) the 2 level
increase for the use of a computer per § 2G2.2(b)(6), (c) the 5 level increase for
possessing over 600 images per § 2G2.2(b)(7)(D), and (d) the 2 level increase for
obstruction of justice per § 3C1.1 and the subsequent denial of a 3 level reduction for
acceptance of responsibility per § 3E1.1.
(See doc. 1 at 2-3.)
Defendant Maines also raised in his Memorandum in Support of the original § 2255 motion
the claim that his third counsel was ineffective for “misadvising him that he was, in fact guilty of the
indicted offense as long as [he] was actually in possession of the child porn, and that it was irrelevant
whether or not [he] knew that he possessed it, and irrelevant that [he] never viewed or intended to
view it.” Memorandum in Support, doc. 2 at 25. Then, as a result of subsequent documents filed by
Maines that were construed by the magistrate judge as motions for leave to amend, Maines was
allowed to add as a supplemental ground a direct challenge to the voluntariness of his plea on the
basis that his guilty plea was involuntary because he did not understand the consequences of his plea,
i.e., that he was “waiving all nonjurisdictional defects,” and that the Government breached the plea
agreement by making that allegation. (doc. 19 at 6.)1 After the government filed a response to these

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Movant also alleged in these amendments that his counsel provided erroneous advice that caused him to decide not
to appeal, but he then expressly withdrew that claim in his reply and elected to challenge only the voluntariness of his
plea. (doc. 22 at 12 (“Movant therefore withdraws his claim that he was misadvised as to the nature of the direct appeal
process, and will instead proceed to challenge the voluntariness of his guilty plea”).) Thus, the Court does not address
any claim of ineffective assistance of counsel related to the lack of direct appeal.

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additional grounds, Maines then filed a reply brief on October 21, 2014, in which he asserted for the
first time additional grounds that directly challenged his plea as involuntary because he was not
informed of and did not understand the true nature of the offense, and because the prosecutor
threatened him and his father with obstruction of justice charges. (doc. 22.) 2 The magistrate judge
also addressed Maines’s factual innocence argument, raised in an Affidavit filed with his
Memorandum, as a claim of actual innocence. See doc. 2, at 36-38; FCR doc. 23 at 37-38.
Therefore, in addition to the original grounds one through five as listed above, Maines also
has pending before the Court the following supplemental grounds for relief:
(A) Supplemental Ground A: Movant’s guilty plea was involuntary because he was
not informed of and did not understand the true nature of the offense;
(B) Supplemental Ground B: Movant’s guilty plea was involuntary because he did not
understand the consequences of his plea, i.e., that he was “waiving all
nonjurisdictional defects,” and the Government breached the plea agreement by
making that allegation;
(C) Supplemental Ground C: Movant’s guilty plea was involuntary because the
prosecutor threatened him and his father with obstruction of justice charges; and
(D) Supplemental Ground D: Movant’s counsel rendered ineffective assistance by
“misadvising him that he was, in fact guilty of the indicted offense as long as [he] was
actually in possession of the child porn, and that it was irrelevant whether or not [he]
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The magistrate judge noted that claims raised in a § 2255 proceeding for the first time in a reply brief need not be
considered by the Court. See United States v. Sangs, 31 F. App’x 152, 2001 WL 1747884, at *1 (5th Cir. Dec. 11, 2001)
(affirming, in § 2255 context, district court’s refusal to consider issue raised for the first time in reply to government’s
answer to habeas petition) (citing Cervantes, 132 F.3d at 1110) (holding that a district court does not abuse its discretion
in refusing to consider new issues in a § 2255 reply brief after the government filed its response)); see also Perez v. United
States, No. 3:12-CV-4144-K, 2013 WL 518660 (N.D. Tex. Feb. 12, 2013); French v. United States, No. 3:10-CV-1129-M,
2010 WL 4052186, at *5 (N.D. Tex. Sept. 10, 2010).
As Movant notes in his objections, and as recited here, he did raise a claim in his memorandum in support of
his § 2255 motion related to counsel’s alleged ineffectiveness as to his understanding of the true nature of the charge.
(doc. 26, at 2; doc. Doc. 2. at 25.) But, Maines did not raise this claim as a direct challenge to the voluntariness of his
plea until he did so in this October 2014 reply. Because the magistrate judge thoroughly analyzed Maines’s direct claim
that his plea was involuntary on the basis that he did not understand the true nature of the charge, and the government
has not objected to these finding and conclusions, the Court will also consider such claim on the merits.

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knew that he possessed it, and irrelevant that [he] never viewed or intended to view
it.”
(E) Movant is actually innocent.
(See docs. 2, 19, and 22.)
Partial Denial of § 2255 Motion
After de novo review of all matters before the Court in accordance with 28 U.S.C. §
636(b)(1), the Court finds and determines that as to Ground Three, Ground Four, Ground Five and
Supplemental Ground C, movant Maines’s objections are overruled, and the Findings, Conclusions,
and Recommendation of the United States Magistrate Judge as to these grounds for relief are correct
and they are accepted as the Findings and Conclusions of the Court. For the reasons stated in the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge, these grounds
for relief (Grounds Three, Four, Five and Supplemental Ground C) will be denied with prejudice.
Hearing and Additional Briefing on Remaining Grounds
The remaining grounds for relief, that is Supplemental Ground A, Supplemental Ground B
(along with any ineffective assistance claims brought within Grounds One and Two that may be
determined to have not been waived), Supplemental Ground D, and Supplemental Ground E will
be set for a hearing before the Court. The Court will, by separate order, appoint counsel for Maines.
Appointed counsel and the government will be given the opportunity to file hearing briefs on these
supplemental grounds only. The Court has already given Maines numerous opportunities to amend
and supplement his grounds for relief, and the Court will not accept or consider any motions to
further amend or supplement the remaining grounds for relief.

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Within the remaining grounds for relief, the Court in particular seeks additional briefing on
Supplemental Grounds A and D, focusing on Maines’s third counsel’s advice related to the elements
of the offense of possession of child pornography in violation of 18 U.S.C. § 2252A, and Maines’s
understanding of those elements in relation to the voluntary nature of his plea. The Court also seeks
additional briefing on Supplemental Ground B, and in particular whether the government’s entry
into a plea agreement with Maines which expressly reserved to him the unlimited right “to bring a
claim of ineffective assistance of counsel,” bars the government from relying upon the doctrine stated
in United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) that “a voluntary guilty plea waives all
nonjurisdictional defects in the proceedings against [a] defendant [including] claims of ineffective
assistance of counsel, except insofar as the ineffectiveness is alleged to have rendered the guilty plea
involuntary.” Id. at 392 (citing United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). In
this regard the Court notes that in United States v. Westry, 2007 WL 3287371, at *6 (S. D. Al. Nov.
2, 2007) the Court rejected the government’s argument that a similarly worded waiver of postconviction relief barred a defendant’s ineffective assistance claims:
Review of the Plea Agreement reveals that the enumerated exceptions to the appeal
waiver specifically include claims of ineffective assistance of counsel. Indeed, the Plea
Agreement provides that [defendant] Westry “reserves the right to contest in an
appeal or post-conviction proceeding any of the following: . . . A claim of ineffective
assistance of counsel.” (Doc. 454, ¶ 19(c).) This language expressly carves out and
authorizes Westry to bring the very ineffective assistance claims he is pursuing in this
§ 2255 action; therefore, it is quite plain from the face of the Plea Agreement that
Westry has not waived, and is in no way contractually precluded from, collaterally
attacking his sentence on the ground that [counsel] rendered ineffective assistance
of counsel in connection with sentencing.
Westry, 2007 WL 328731, at *6.

Also, to the extent the Court may determine that the

unconditional reservation of Maines’s right to bring “a claim of ineffective assistance of counsel”
means that the government cannot rely on the plea agreement waiver or the doctrine set out in
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Glinsey to bar the claims of ineffective assistance of counsel raised as Grounds One and Two, further
briefing on the merits of Grounds One and Two will assist the Court. The court also seeks
clarification from appointed counsel as to whether Maines seeks to maintain a claim of actual
innocence. If so, the Court also seeks additional briefing on this Supplemental Ground E.
Order
It is therefore ORDERED that the motion for relief under 28 U.S.C. § 2255 Grounds Three,
Four, Five, and Supplemental Ground C, is DENIED with prejudice.3
A hearing on Maines’s remaining claims – Supplemental Ground A, Supplemental Ground
B (and ineffective assistance claims brought within Grounds One and Two that may be determined
to have not been waived), Supplemental Ground D, and Supplemental Ground E – and a briefing
schedule will be set by separate order once Maines has been returned to the Northern District of
Texas. An order to return Maines to this district is being filed simultaneously herewith.
SO ORDERED.
SIGNED February 9, 2016.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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A judgment and order related to the issuance of a certificate of appealability on these grounds for relief will
issue at the time of the Court’s resolution of the remaining grounds for relief after the hearing.

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