Hall v. USA
MEMORANDUM DECISION and Order-For the reasons in the Order, Petitioner Paul R. Halls Motion to Vacate, Set Aside, orCorrect Sentence pursuant to 28 U.S.C. § 2255 is DENIED because the motion is untimely and Mr.Hall expressly waived his right to appeal. 1 . denying 3 Motion ; denying 5 Motion ; denying 6 Motion to Appoint Counsel. See Order for details. Signed by Judge Clark Waddoups on 8/19/13. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
PAUL R. HALL,
UNITED STATES OF AMERICA,
Case No. 1:12-cv-243
Related to Case No.: 1:08-cr-141
Judge Clark Waddoups
This matter is before the court on multiple motions that Petitioner Paul R. Hall (“Mr. Hall”)
filed pro se on November 13, 2012. The motions before the court include a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Dkt. No. 1), a Motion for Downward Departure
(Dkt. No. 3), a Motion for Mental Health Examination (Dkt. No. 5), and a Motion to Appoint
Counsel (Dkt. No. 6).
The court DENIES all claims in Mr. Hall’s § 2255 Motion because the motion is untimely
and he expressly waived his right to appeal. (Dkt. No. 1). The court also DENIES Mr. Hall’s
Motion to Appoint Counsel because it is moot in light of the untimeliness of his § 2255 Motion and
DENIES his Motion for Mental Health Examination based on the fact that he has already received
multiple mental health examinations and been found competent. (Dkt. Nos. 5, 6). Mr. Hall’s
Motion for Downward Departure is DENIED because the court lacks jurisdiction over the matter.
(Dkt. No. 3).
Mr. Hall was arrested on December 18, 2008 and charged with multiple criminal offenses.
On April 6, 2011, Mr. Hall pled guilty and was sentenced on two counts of Carjacking under 18
U.S.C. § 2119 and one count of Brandishing a Firearm During and in Relation to a Crime of
Violence pursuant to 18 U.S.C. § 924(c). The court sentenced Mr. Hall to 130 months on the
Carjacking counts and to 84 months on the Brandishing a Firearm count for a total amount of 214
months in the custody of the Bureau of Prisons. The court also sentenced Mr. Hall to 60 months
Supervised Release with standard and special conditions following his prison sentence. Mr. Hall did
Mr. Hall, a federal prisoner in the custody of the Bureau of Prisons, now seeks habeas relief
pursuant to 28 U.S.C. § 2255 on grounds of ineffective assistance of counsel, prosecutorial
misconduct and insufficient evidence. He also asks the court for a downward departure in his
sentencing, for a thorough mental health examination due to his alleged incompetency, and moves
for the court to appoint an attorney to assist him with his habeas corpus case under § 2255.
Several other important facts concerning this case include that Mr. Hall had a psychiatric
examination during the pendency of the case which was considered by the court at sentencing. Mr.
Hall made a motion for an examination during his criminal proceedings which the court granted and
sentencing was delayed twice to allow the examination to be conducted, the records gathered, and
a report prepared. Dr. Nancy Cohn completed a mental health examination report on Mr. Hall that
was submitted to the court in conjunction with Mr. Hall’s sentencing memorandum. Mr. Hall
additionally had two prior mental health examinations which were discussed in the Presentence
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (28 U.S.C. § 2255)
Title 28 U.S.C. § 2255(a) states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States . . . or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or correct
Because Mr. Hall is proceeding pro se, the court must construe his pleadings liberally. Allred
v. United States, Case No. 2009 U.S. Dist. LEXIS 112542, *2 (D. Utah Dec. 3, 2009) (quoting Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). However, Mr. Hall still has the burden to allege
“sufficient facts on which a recognized legal claim could be based,” and it is not proper for the
“court to assume the role of advocate for the pro se litigant.” Id. “The court need not accept as true
a pro se plaintiff’s ‘conclusory allegations.’” Flynn v. United States, 2011 U.S. Dist. LEXIS 146522,
*5 (D. Utah Dec. 16, 2011) (quoting Hall, 935 F.2d at 1110). “[C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be based.” Allred,
2009 U.S. Dist. LEXIS 112542 at *2 (citations omitted).
First, Mr. Hall asserts he had ineffective assistance of counsel. At the outset of his
arguments, Mr. Hall asserts that he asked his attorney David W. Brown (“Mr. Brown”) to file an
appeal but that Mr. Brown denied his request. Mr. Hall argues that the statute of limitations should
be waived and the court should freely accept his § 2255 Motion. The court disagrees. Congress
specified that “[a] 1-year period of limitation shall apply to a motion under this section. 28 U.S.C.
§ 2255(f)(1). The limitation period shall run from the latest of . . . . (1) the date on which the
judgment of conviction becomes final.” Thus, Mr. Hall’s Motion is untimely because he filed it after
the 1-year limitation period had expired. Mr. Hall’s judgment was entered on April 8, 2011. He did
not file a direct appeal from his conviction and his judgment then became final when his opportunity
to file a certiorari petition passed after 90 days. United States v. Burch, 202 F.3d 1274, 1279 (10th
Cir. 2000). Therefore, when Mr. Hall filed his § 2255 Motion on November 13, 2012, it was filed
over four months past the deadline and is deemed untimely.
While the motion is untimely and is procedurally deficient, a petitioner can overcome the
procedural deficiency by demonstrating “either cause and prejudice or a fundamental miscarriage
of justice for a federal court to review his claims on habeas.” Romero v. Tansy, 46 F.3d 1024, 1028
(10th Cir. 1995). In Romero, the district court found that because the appellant in the case had
alleged that his attorney was constitutionally ineffective for failing to perfect a direct appeal, the
appellant had demonstrated cause for his procedural default. In the instant case, Mr. Hall has alleged
the same, asserting that his attorney Mr. Brown was constitutionally ineffective for not filing a direct
appeal. The distinguishing factor, however, is that Mr. Hall actually “knowingly, voluntarily, and
expressly” waived his right to appeal and therefore Mr. Brown’s failure to file an appeal was not
ineffective assistance of counsel. (Dkt. No. 62 at 4, ¶ (3)(a) in Case No. 1:08-cr-141).
Morever, the Supreme Court has stated that “a guilty plea represents a break in the chain of
events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267
(1973). In addition to waiving his right to appeal, Mr. Hall pled guilty to the crimes stated in his plea
agreement. When “a criminal defendant has solemly admitted in open court that he is in fact guilty
of the offense which he is charged, he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id.; see also
United States v. Doe, 698 F.3d 1284, 1289 (10th Cir. 2012) (citing this principle). In this case, Mr.
Hall engaged in a Rule 11 colloquy with the court and he made modifications to the plea agreement
as is evidenced by his initials on it. Although Mr. Hall contends he did not enter into the plea
agreement voluntarily due to mental incompetency, he had several mental examinations and was
found competent before entering into his plea. The court therefore concludes that he entered into
his plea freely, voluntarily, and with full knowledge of his rights and the consequences of the plea.
To the extent that Mr. Hall entered his plea freely, voluntarily, and with full knowledge, with
the assistance of counsel, had had multiple mental health examinations, all of which showed him to
be competent to enter such a plea, and then expressly waived his right to appeal, Mr. Hall has not
shown either cause and prejudice nor a fundamental miscarriage of justice which are requisite to
overcome his procedurally deficient filings. The court must therefore deny his § 2255 Motion and
does so accordingly.
MOTION TO APPOINT COUNSEL
Mr. Hall also moves the court to appoint counsel to assist him in his habeas corpus case.
This issue is deemed moot because the court finds that Mr. Hall’s § 2255 Motion is untimely and
therefore denied. Because Mr. Hall’s habeas corpus case is denied, there is no need for the court to
appoint an attorney to represent him in that case.
MOTION FOR DOWNWARD DEPARTURE
Mr. Hall moves the court for a downward departure reducing his sentence to time served or
half of his original sentence. Mr. Hall argues that the court should grant this motion for two reasons:
(1) his incompetency, and (2) his willingess to provide substantial assistance in “an unsolved highprofile murder case” under U.S.S.G. § 5K1.1. Here, the court lacks jurisdiction to modify Mr. Hall’s
sentence. The Director of the Bureau of Prisons must move the court to reduce a term of
imprisonment if it finds special circumstances exist. United States v. Smartt, 129 F.3d 539, 541
(10th Cir. 1997) (citing 18 U.S.C. § 3582(c)(1)(A)(i),(ii). This has not occurred. Thus, the court has
no jurisdiction over the matter. Additionally, § 5K1.1 is available only to address a defendant’s
substantial assistance prior to sentencing. United States v. Quach, 302 F.3d 1096, 1102 (9th Cir.
2002) (quoting United States v. Drown, 942 F.2d 55, 59 & n.7 (1st Cir. 1991). Mr. Hall did not
provide any substantial assistance prior to sentencing and the government did not make a motion
under § 5K1.1 at sentencing, nor was a promise for a § 5K1.1 motion included in the plea agreement.
Thus, the court has no jurisdiction to consider modifications to Mr. Hall’s sentence.
MOTION FOR MENTAL HEALTH EXAMINATION
Mr. Hall additionally moves the court to grant him a mental health examination. Mr. Hall
states that “he has been suffering from mental health issues such as paranoid schizophrenia, bipolar,
[and] post-traumatic stress disorder for 12 years” and argues that this would have affected the
outcome of his criminal case. There is no basis for the court to grant Mr. Hall another mental health
examination. Mr. Hall had previous mental health examinations and each found him to be
competent. Thus, Mr. Hall has failed to provide a factual basis to show why the court should now
grant him another mental health examination.
CERTIFICATE OF APPEALABILITY
When a district court issues a final order in a proceeding under § 2255, the court must
address whether a certificate of appealability should be issued. Rule 11(a) of Rules Governing
Section 2255 Proceedings. “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Hall
has failed to make a substantial showing that he was denied a constitutional right. Accordingly, the
court denies a certificate of appealability for Mr. Hall’s § 2255 Motion.
For the reasons set forth above, Petitioner Paul R. Hall’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED because the motion is untimely and Mr.
Hall expressly waived his right to appeal. (Dkt. No. 1). The court also DENIES Mr. Hall’s Motion
to Appoint Counsel because it is moot due to the untimeliness of his § 2255 Motion and DENIES
Mr. Hall’s Motion for Mental Health Examination based on the fact that he has already received
multiple mental health examinations and been found competent. (Dkt. Nos. 5, 6). Mr. Hall’s Motion
for Downward Departure is DENIED because the court lacks jurisdiction over the matter. (Dkt. No.
3). The court thus DENIES all relief Mr. Hall seeks and closes this case.
SO ORDERED this 19th day of August, 2013.
BY THE COURT:
United States District Judge
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