Estes v. USA
Filing
10
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S 5 REPORT AND RECOMMENDATION THAT PETITIONER'S 1 28 USC § 2255 PETITION BE DENIED as to Corey Estes (1): The report and recommendation of the magistrate judge is AFFIRMED and ADOPTED in its entirety. The petitioners motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is DENIED. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 9/16/2013. (kac) (Copy to pro se petitioner (via cm/rrr))(kac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COREY ESTES,
Petitioner,
v.
Civil Action No. 5:10CV111
(Criminal Action No. 5:05CR13)
(STAMP)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION THAT PETITIONER’S
28 U.S.C. § 2255 PETITION BE DENIED
The pro se1 petitioner, Corey Estes, filed a motion to vacate,
set aside, or correct his sentence.
Magistrate
Judge
James
E.
Seibert
Thereafter United States
entered
a
report
and
recommendation denying the petitioner’s motion. The petitioner has
not filed objections.
I.
Background
On August 18, 2005, the petitioner entered a plea agreement
wherein he pled guilty to conspiracy to distribute more than 50
grams of cocaine base and five kilograms of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
The plea agreement
stipulated that the petitioner’s total drug relevant conduct was
1.5 kilograms of cocaine base and that he waived his right to
appeal and to collaterally attack his sentence.
1
The petitioner
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
entered his plea of guilty pursuant to this plea agreement on
August 22, 2005 before the undersigned judge.
Petitioner
was
sentenced
to
262
months
imprisonment.
Petitioner filed a § 2255 motion claiming, among other things,
ineffective assistance of counsel because counsel failed to file an
appeal.
This Court granted petitioner’s motion only as to the
issue of ineffective assistance of counsel for failure to file an
appeal, vacated his judgment and reentered it, and thus reinstated
the petitioner’s appellate rights.
As a result of this Court’s granting of the petitioner’s
§ 2255 motion regarding direct appeal, the petitioner filed a
notice of appeal of his conviction and sentence to the United
States Court of Appeals for the Fourth Circuit.
On appeal, the
petitioner questioned whether this Court correctly complied with
Rule 11 in accepting his guilty plea.
The Fourth Circuit denied
the petitioner’s appeal, finding that this Court had complied with
Rule 11.
The petitioner did not file a petition for writ of
certiorari.
Petitioner, through appointed counsel, filed a motion for
reduced sentence pursuant to 18 U.S.C. § 3582(c).
This Court
granted the petitioner’s motion reducing his sentence from 262
months to 210 months.
The petitioner then filed this federal habeas motion pursuant
to 28 U.S.C. § 2255, arguing the legality of his detention because
2
(1) he is actually innocent, (2) he is entitled to sentencing
relief under the Fair Sentencing Act of 2010, and (3) his counsel
was ineffective in negotiating his plea agreement.
The government
responded and contends that (1) the petitioner knowingly and
willfully waived his right to collaterally attack his conviction;
(2)
there
was
more
than
sufficient
evidence
to
convict
the
petitioner, thus he has no claim to actual innocence; (3) the Fair
Sentencing
Act
of
2010
was
not
made
retroactive;
petitioner’s counsel was not ineffective.
and
(4)
The petitioner’s reply
reiterated his claims from his petition.
In accordance with Local Rule of Prisoner Litigation Procedure
2, this case was referred to United States Magistrate Judge James
E. Seibert for initial review and report and recommendation.
Magistrate
Judge
recommending
dismissed.
informed
that
Seibert
issued
petitioner’s
a
§
report
2255
and
motion
recommendation
be
denied
and
In his report and recommendation, the magistrate judge
the
petitioner
of
his
right
to
object
to
the
recommendations therein within fourteen days after being served
with a copy of the report and recommendation. The petitioner filed
a motion for an extension of time in which to file written
objections.
The petitioner’s motion for an extension of time was
granted by this Court and the petitioner was directed to file
3
written objections by September 29, 2011.
The petitioner did not
file objections.2
II.
Applicable Law
As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A).
III.
Discussion
In his § 2255 motion, petitioner claims that he is actually
innocent of the underlying conviction, is entitled to a reduction
in his sentence under the Fair Sentencing Act, and received
ineffective
assistance
during
the
negotiations
for
his
plea
agreement.
As to the petitioner’s first two claims of actual innocence
and relief under the Fair Sentencing Act of 2010, the magistrate
judge found that he waived these claims during the plea hearing
held by this Court.
5:05CR13-01, ECF No. 233 *15, 19.
During the
petitioner’s plea hearing, this Court read paragraph 11 of the
petitioner’s plea agreement, containing the waiver of his appellate
rights.
After this Court read that paragraph, the petitioner
2
This Court notes that in the petitioner’s corresponding
criminal action, 5:05CR13-01, this Court entered an order reducing
the petitioner’s sentence of imprisonment from 210 months to 168
months under 18 U.S.C. 3582(c)(2) for retroactive application of
the sentencing guidelines to his crack cocaine offense. ECF No.
371.
4
answered in the affirmative that he understood the waiver of his
appellate and post-conviction relief rights.
“A waiver-of-appeal-
rights provision in a valid plea agreement is enforceable against
the defendant so long as it is the result of a knowing and
intelligent decision to forgo the right to appeal.”
v. Attar, 38 F.3d 727, 731 (4th Cir. 1994).
United States
Further, whether a
waiver is knowing and intelligent “depends upon the particular
facts and circumstances surrounding [its making], including the
background, experience, and conduct of the accused.” Id. Based on
this standard and the facts underlying the plea agreement, this
Court agrees with the magistrate judge that the petitioner’s claim
of actual innocence was waived under his plea agreement and
pursuant to his acknowledgment of that waiver during his plea
hearing.
Petitioner’s
final
contention,
that
his
counsel
was
ineffective during the plea agreement negotiations, was not waived
pursuant to the plea agreement.
The magistrate judge found,
however, that the petitioner knowingly and voluntarily entered into
his
plea
agreement
because
he
was
made
fully
aware
of
the
consequences of his plea and the petitioner has been unable to
produce evidence to suggest that his plea was induced by his
counsel misadvising him.
“Waivers of constitutional rights not only must be voluntary
but
must
be
knowing,
intelligent
5
acts
done
with
sufficient
awareness of the relevant circumstances and likely consequences.”
Brady v. United States, 397 U.S. 742, 748 (1970). “A voluntary and
intelligent plea of guilty by an accused person who has been
advised by competent counsel, may not be collaterally attacked.”
Mabry v. Johnson, 467 U.S. 504, 508 (1984).
“Absent clear and
convincing evidence to the contrary, a defendant is bound by the
representations he makes under oath during a plea colloquy.”
Fields v. Attorney General of State of Md., 956 F.2d 1290, 1299
(4th Cir. 1992); see also Blackledge v. Allison, 431 U.S. 63, 74
(1977)
(“Solemn
declarations
in
open
court
carry
a
strong
presumption of verity”).
During the petitioner’s plea hearing, this Court gave a
detailed description of the plea agreement and addressed the
petitioner throughout the description.
5:05CR13-01, ECF No. 233
*13. Petitioner affirmatively responded when periodically asked if
he
understood
reviewing.
understood
the
Id.
the
terms
and
provisions
that
this
Court
was
The petitioner further represented that he
consequences
of
pleading
guilty,
forfeiting his constitutional right to trial by jury.
including
Id. at 20-
22. The petitioner had several opportunities to challenge the plea
agreement at the plea hearing, but failed to do so.
Finally, the
petitioner was asked if he was pleased with counsel’s performance
up to the plea hearing, to which the petitioner stated that counsel
Id. at 32.
had effectively represented him.
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The petitioner has not produced any evidence contrary to his
statements and averments at his plea hearing and would not meet the
clear and convincing evidence standard required of him. Thus, this
Court finds that the magistrate judge’s report was not clearly
erroneous or contrary to law as to the petitioner’s claim of
ineffective assistance of counsel.
For the reasons stated above, this Court adopts the magistrate
judge’s findings.
IV.
Conclusion
Accordingly, after a review for clear error, the report and
recommendation of the magistrate judge is AFFIRMED and ADOPTED in
its entirety.
The petitioner’s motion for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255 is DENIED.
It is further ORDERED that
this case be DISMISSED WITH PREJUDICE and STRICKEN from the active
docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the petitioner has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner and to counsel of record
herein.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
DATED:
September 16, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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