Gresham v. United States of America

Filing 5

Memorandum Opinion and Order denying Motion to Vacate. The Court DENIES a certificate of appealability. (Ordered by Chief Judge Jorge A Solis on 2/2/2015) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ELDON A. GRESHAM, JR.,
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:14-cv-3589-P
(No. 3:10-cr-267-P-1)

MEMORANDUM OPINION AND ORDER
Before the Court is a motion to vacate, set aside, or correct sentence,
pursuant to 28 U.S.C. § 2255 [Dkt. No. 1, No. 3:14-cv-3589 1], filed by Petitioner
Eldon A. Gresham, Jr., a prisoner currently incarcerated in the federal prison
system.

I.

Background

On September 21, 2010, a ten-count indictment, alleging mail fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 1341, and 2, was handled down
against Gresham. See Dkt. No. 1. Gresham was arrested in Georgia on September
23, 2010. See Dkt. No. 6. And he was arraigned and pleaded not guilty to all counts
of the indictment on October 13, 2010. See Dkt. Nos. 3 & 4.
Gresham's case traveled a rather protracted path toward resolution. Along
the way, on December 14, 2011, Gresham was adjudged competent to stand trial

1

All record citations are to the criminal action, No. 3:10-cr-267, unless otherwise

noted.

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and his request to represent himself was granted, but his prior counsel, Assistant
Federal Public Defender Sam Ogan, was appointed to serve as standby counsel. See
Dkt. No. 40. A superseding indictment alleging four counts of mail fraud, aiding and
abetting [Dkt. No. 64] was filed March 6, 2012. On December 3, 2012, a pretrial
conference, at which Gresham did not appear due to health issues, was held. Trial
was then reset to commence January 14, 2013, with a pretrial conference on
January 3, 2013. See Dkt. No. 121. And Gresham's pretrial release was revoked,
and he was arrested on December 13, 2012. See Dkt. Nos. 122 and 125.
On January 3, 2013, Gresham, appearing pro se, entered a plea of guilty to
Count 3 of the superseding indictment. See generally Dkt. Nos. 127 (factual
resume); 128 & 129 (plea agreement and supplement); and 141 (re-arraignment
transcript). The plea agreement was made pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), under which "the parties agree[d] that a maximum prison
term at the bottom end of whatever United States Sentencing Guidelines range is
ultimately determined by the Court is the appropriate custody disposition of the
case." Dkt. No. 128,

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5.

Although Gresham attempted to withdraw his guilty plea, see Dkt. No. 140,
his effort was not successful. And ultimately, on October 3, 2013, Gresham was
sentenced to 168 months' imprisonment- the bottom end of the Guideline range,
assessed $100, and ordered to pay restitution totaling $9,985,403.35. See Dkt. No.
177.
There was no direct appeal, and this petition was timely filed September 29,

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2014. See 28 U.S.C. § 2255(£)(1); FED. R. APP. P. 4(b)(1)(A).

II.

Summary Dismissal

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides for summary dismissal "[i]f it plainly appears ...
that the moving party is not entitled to relief[.]" Id. As explained below, summary
dismissal of Gresham's § 2255 motion - asserting that his standby counsel was
ineffective, a search warrant was lacking, there was prosecutorial misconduct, and
his guilty plea is not valid- is appropriate.

A.

Waiver

A defendant can waive his right to appeal and to seek post-conviction relief as
part of a plea agreement if the waiver is informed and voluntary. See United States

v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (citing United States v. Melancon, 972
F.2d 566, 567 (5th Cir. 1992)); see also United States v. White, 307 F.3d 336, 339
(5th Cir. 2002) ("We will follow this wealth of authority and hold that an ineffective
assistance of counsel argument survives a waiver of appeal only when the claimed
assistance directly affected the validity of that waiver or the plea itself."). '"It is up
to the district court to insure that the defendant fully understands [his] right to
appeal and the consequences of waiving that right."' Wilkes, 20 F.3d at 653 (quoting

United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).
Here, Gresham's plea agreement [Dkt. No. 128] provides
Gresham waives his rights, conferred by 28 U.S.C. § 1291 and 18
U.S.C. § 3742, to appeal his conviction and sentence. He further
waives his right to contest his conviction and sentence in any collateral
proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. Gresham,

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however, reserves the rights (a) to bring a direct appeal of (i) a
sentence exceeding the statutory maximum punishment, or (ii) an
arithmetic error at sentencing, and (b) to challenge the voluntariness
of his guilty plea or this waiver

Id.,

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13.

B.

Voluntariness of the Guilty Plea (and Waiver therein) and
Ineffective Assistance and Prosecutorial Misconduct Claims

Gresham asserts that his "guilty plea was done at the last minute," that his
attorney - then only his standby counsel - "did not discuss the plea agreement"
(presumably) with him, and that he "did not understand the charges against himD
or the consequences [of pleading guilty]." Dkt. No. 1 at 12. Gresham then claims
that his related claim of ineffective assistance of counsel affects the validity of his
guilty plea and that that plea "was induced by threats and promises." Id.
Relatedly, he asserts a claim of ineffective assistance of standby counsel. See

id. at 5 ("In the instant case[,] the defendant fired his court appointed attorney
because of ineffectiveness[, and] ... and the court ordered the attorney to be an
advisor to the defendant which in turn the attorney was very influential on the case
and continued to be ineffective . . . [and] caused the defendant to plea guilty even
though the defendant continued to claim his innocence."). And he also asserts that
prosecutorial misconduct taints the guilty plea he entered: "the defendant asserts
that his waiver of rights was involuntary as a result of Government coercion." Id. at
10.
A guilty plea is valid only if entered voluntarily, knowingly, and intelligently,
"with sufficient awareness of the relevant circumstances and likely consequences."

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing Brady v. United States, 397
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U.S. 742, 748 (1970)). A plea is intelligently made when the defendant has "real
notice of the true nature of the charge against him," Bousley v. United States, 523
U.S. 614, 618 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)), and a
plea is "voluntary" if it does not result from force, threats, improper promises,
misrepresentations, or coercion, see United States v. Amaya, 111 F.3d 386, 389 (5th
Cir. 1997).
The Fifth Circuit has identified three core concerns in a guilty plea
proceeding: (1) the absence of coercion; (2) a full understanding of the charges; and
(3) a realistic appreciation of the consequences of the plea. See United States v.

Gratia, 983 F.2d 625, 627-28 (5th Cir. 1993). Compliance with the admonishments
required under Rule 11 of the Federal Rules of Criminal Procedure provides
"prophylactic protection for the constitutional rights involved in the entry of guilty
pleas." See id. at 627.
Gresham's conclusory attacks as to validity of his guilty plea are belied by the
transcript of Gresham's January 3, 2013 re-arraignment. See, e.g., Dkt. No. 141 at
3:8-4:7 (acknowledging he had seen the superseding indictment, understood the
charges in that indictment, understood that Count 3 of that indictment charged him
with mail fraud, and had discussed that indictment with Mr. Ogan); 6:9-12:7
(Gresham acknowledged that he understood all of the information in the plea
agreement, the AUSA summarized the agreement in open court, and then Gresham
acknowledged that he had read the agreement in its entirety and had reviewed it
with Mr. Ogan before signing it); 13:17-17-1 (the Court discussed, and Gresham

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acknowledged he understood, "the entire range of punishment that applies here to
Count 3 of the indictment"); 21:8-24:16 (the factual resume, which Gresham had
already signed, was read into the record and Gresham acknowledged that he had
reviewed the factual resume with Mr. Ogan and the United States Attorney's Office,
then confirmed the stipulated facts were true and correct, and pleaded guilty to
Count 3 of the superseding indictment).
And, as the following exchange shows, the Court specifically discussed the
waiver provision of the plea agreement with Gresham:
THE COURT: And that is what you want to do as part of your
agreement with the Government is limit your right of appeal as you
have done so here. Is that correct?
THE DEFENDANT: Yes, sir. Since I was asked to do this as
part of the agreement, yes, sir.
THE COURT: Right. The Government typically conditions plea
agreements on the waiver of the right of appeal, so this is something
they typically do.
Of course, you understand you don't have to enter into this plea
agreement?
THE DEFENDANT: Yes, sir. I have known that for some time.
Yes, sir.
THE COURT: All right. But as part of entering it, then by
agreeing to enter it then you are agreeing to limit your right of appeal
as explained. Is that correct?
THE DEFENDANT: Yes, sir.

Id. at 13:1-16.
This sworn testimony carries a strong presumption of verity in this - a
subsequent post-conviction- proceeding. See Blackledge v. Allison, 431 U.S. 63, 7374 (1977); United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002). And
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"[n]othing in the record supports [Gresham's] conclusory and self-serving assertion
that his plea was improperly induced, involuntary, or made without understanding
of its consequences." United States v. Presley, Nos. 3:12-CV-0978-P, 3:07-CR0338-P(01), 2012 WL 3184467, at *2 (N.D. Tex. Aug. 6, 2012) (citing Salazar v.

United States, No. 3:08-CV-1799-L, 2008 WL 4791461 at *3 (N.D. Tex., Oct. 31,
2008) (conclusory assertions in section 2255 motion do not overcome presumption of
verity attached to prior testimony that guilty plea was knowing and voluntary). The
Court therefore finds no merit to Gresham's claims that his plea of guilty was not
voluntary, knowing, and intelligent.
While, a guilty plea is also open to attack on the ground that counsel did not
provide the defendant with reasonably competent advice, see, e.g., Cuyler v.

Sullivan, 446 U.S. 335, 344 (1980) (citing cases), here, Gresham was proceeding pro
se, and because Gresham "represented himself, he cannot claim that his own efforts
amounted to ineffective assistance of counsel." United States v. Hoenig, No. CRIM
402-CR-035-Y, CIV 404-CV-770-Y, 2006 WL 2993262, at *2 (N.D. Tex. Oct. 18,
2006) (further acknowledging that, like Gresham here, the defendant there was
proceeding pro se with stand-by counsel but, "because Hoenig was not entitled to
stand-by counsel, he [was] not entitled to relief for any alleged ineffectiveness of
such counsel") (footnotes omitted); see Faretta v. California, 422 U.S. 806, 834 n.46
(1975) ("[A] defendant who elects to represent himself cannot thereafter complain
that the quality of his own defense amounted to a denial of 'effective assistance of
counsel."').

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In Hoenig, this Court relied on Second Circuit precedent and Fifth Circuit
dicta to support the stand-by counsel point. See 2006 WL 2993262, at *2 n.13 (citing

United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998); United States v.
Mikolajczyk, 137 F.3d 237, 246 (5th Cir. 1998)). Subsequently, the Fifth Circuit
explicitly relied on Morrison in a published opinion for the position that because
there is not "a constitutional right to standby counsel, a defendant is not entitled to
relief for the ineffectiveness of standby counsel." United States v. Oliver, 630 F.3d
397, 414 (5th Cir. 2011) (quoting 153 F.3d at 55); see United States v. Dorsey, Nos.
4:13-CV-013-A, 4:10-CR-190-A, 2013 WL 1804027, at *5 (N.D. Tex. Apr. 29, 2013)
("While the court may appoint standby counsel to assist a criminal defendant
appearmg pro se, and the court in fact appointed Fleury as movant's standby
counsel at movant's sentencing hearing, there is no constitutional right to the
appointment of standby counsel. Accordingly, without a constitutional right to
standby counsel, movant had no right to effective assistance of such counsel." (citing

Oliver, 630 F.3d at 414; Morrison, 153 F.3d at 55; Simpson v. Battaglia, 458 F.3d
585, 597 (7th Cir. 2006)).

C.

Search Warrant Claim

Gresham also claims that there was no search warrant for either his
residence or office. See Dkt. No. 1 at 7. Quite simply, to the extent this conclusory
Fourth Amendment claim has any merit, which does not appear to be the case, it
has been waived by Gresham's knowing and voluntary guilty plea and by the waiver
in the plea agreement itself.
The Fifth Circuit has held that a defendant's "voluntary guilty plea waives all
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non-jurisdictional defects in the proceedings against the defendant[,]" United States

v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000), including putatively unreasonable
searches and seizures, see Norman v. McCotter, 765 F.2d 504, 511 (5th Cir. 1985)
(holding that searches and seizures alleged to run afoul of the Fourth Amendment
are defects that defendant "waived his right to challenge when, as found above, he
entered a knowing and voluntary guilty plea"); see also Balleza v. United States,
Nos. 3:11-CV-0505-K, 3:08-CR-079-K, 2012 WL 1859872, at *3 (N.D. Tex. May
17, 2012) ("A plea of guilty admits all the elements of a formal criminal charge and
waives all non-jurisdictional defects in the proceedings leading to conviction,"
including "objections to searches and seizures that violate the Fourth Amendment."
(quoting United States v. Cothran, 302 F.3d 279, 285-86 (5th Cir. 2002)); United

States v. Sublet, 211 F. App'x 301, 302 (5th Cir. Dec. 27, 2006) (per curiam) ("With
respect to his guilty-plea convictions, Sublet has waived all non-jurisdictional
defects in the proceedings before the district court by entering a valid, unconditional
guilty plea. United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999). That waiver
includes the right to appeal any Fourth Amendment claims. United States v. Diaz,
733 F.2d 371, 376 n.2 (5th Cir. 1984).").

III.

Evidentiary Hearing

Upon review of the motion to vacate and the files and records of this case, an
evidentiary hearing appears unnecessary. No evidentiary hearing is required if "the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b). In this instance, the matters reviewed by

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the Court conclusively show that movant is entitled to no relief.

IV.

Certificate of Appealability

Considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings,
and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability. Gresham
has failed to show (1) that reasonable jurists would find this Court's "assessment of
the constitutional claims debatable or wrong," or (2) that reasonable jurists would
find "it debatable whether the petition states a valid claim of the denial of a
constitutional right" and "debatable whether [this Court] was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S. 473, 48 (2000).
In the event Gresham elects to file a notice of appeal, the Court notes that
Gresham will need to pay the appellate filing fee or submit a motion to proceed in

forma pauperis ..

V.

Conclusion

For the foregoing reasons, the Court summarily DENIES Gresham' motion to
vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
SO ORDERED.
Signed this 2nd day of February, 2015.

UNITED STATES DISTRICT JUDGE

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