Fleming v. USA

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE 12 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND OVERRULING THE PETITIONER'S OBJECTIONS. The petitioners motion under § 2255 ECF No. 1 is DENIED. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/16/15. (copy to Pro Se Petitioner via CM/rrr; counsel via CM/ECF)(lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT FLEMING,
Petitioner,
v.

Civil Action No. 5:13CV48
(Criminal Action No. 5:09CR21-07)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
I.

Background

The pro se1 petitioner, a federal inmate, filed a motion under
28 U.S.C. § 2255 (“§ 2255”).

In that motion, the petitioner

asserts the following claims: (1) he involuntarily and unknowingly
entered into his plea agreement; (2) he received ineffective
assistance

of

counsel

regarding

his

sentence;

and

(3)

the

Government breached his plea agreement. Previously, the petitioner
pleaded guilty to aiding and abetting in the distribution of
cocaine

base

within

1,000

feet

of

a

protected

location,

in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 860, and 18
U.S.C. § 2. The plea agreement contained a waiver of his appellate
rights and a waiver as to collaterally attacking his sentence.
Ultimately, the petitioner received a 121-month sentence.
1

Later,

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

the

petitioner

appealed

his

sentence.

In

that

appeal,

the

petitioner claimed that he entered into his plea both involuntarily
and

unknowingly,

that

he

received

ineffective

assistance

counsel, and that the Government breached his plea agreement.

of
The

United States Court of Appeals for the Fourth Circuit affirmed his
conviction and sentence.
United States Magistrate Judge Robert W. Trumble filed a
report

and

recommendation,

wherein

he

recommends

petitioner’s petition be dismissed for two reasons.

that

the

ECF No. 12.

First, the magistrate judge points out that the Fourth Circuit
previously affirmed that the petitioner knowingly and voluntarily
entered into his plea, and that the Government did not breach the
plea agreement.
claims,

the

Because the Fourth Circuit already ruled on those

petitioner

should

be

barred

from

attempting

relitigate those claims under the “mandate rule.”

to

Second, as to

his claim of ineffective assistance of counsel, the petitioner
failed to satisfy the standard under Strickland v. Washington, 466
U.S. 668 (1984).

Therefore, the magistrate judge recommended that

the petitioner’s petition be dismissed.
The petitioner timely filed objections.
petitioner

claims

that

the

government

ECF No. 15.

promised

him

The

future

reductions in his sentence, and under that promise, he entered into
his plea agreement. In particular, the petitioner believes that he
was

promised

a

one-level

reduction

2

for

timely

acceptance

of

responsibility, pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 3E1.1(b).

Further, the petitioner claims that his

counsel was ineffective for letting him enter into his plea
agreement. For those reasons, the petitioner objects to the report
and recommendation of the magistrate judge.
For the reasons set forth below, the report and recommendation
of the magistrate judge is affirmed and adopted.

Accordingly, the

petitioner’s objections are OVERRULED.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo.
III.

Discussion

As stated above, the petitioner asserts three grounds for
relief.

The first and third ground are that he unknowingly and

involuntarily entered into his guilty plea and that the Government
breached his plea agreement.

The second ground for relief is a

claim of ineffective assistance of counsel.

Those arguments will

be discussed below in the order presented.
A. Grounds One and Three Are Barred by the Mandate Rule
The “mandate rule” provides that the “mandate of a higher
court is ‘controlling as to matters within its compass.’”

3

United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting Sprague v.
Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)).

It acts to “compel

compliance on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly decided by
the appellate court.”

Bell, 5 F.3d at 66 (emphasis added).

Therefore, any issues raised and rejected on direct appeal are
barred from further review by this Court.

See, e.g., Boeckenhaupt

v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (per curiam);
see also Herman v. United States, 227 F.2d 332 (4th Cir. 1955) (per
curiam).
On

direct

appeal,

the

petitioner

first

argued

that

he

unknowingly and involuntarily entered into his plea agreement.
Criminal Action No. 5:09CR21-07, ECF No. 460.

The Fourth Circuit

assessed the petitioner’s plea hearing, wherein the petitioner
affirmed his understanding of the terms and conditions of his plea
agreement.

The Fourth Circuit found that the petitioner did not

“offer a credible basis on which to doubt” the veracity of his
statements about knowingly and voluntarily entering into his plea
agreement.

Id.

The petitioner also argued on direct appeal that

the government breached his plea agreement.
however,

stated

that

the

court

reviewed

The Fourth Circuit,
the

record

and

the

petitioner’s claims, and “found no meritorious issues for appeal.”
Id.

The Fourth Circuit affirmed the petitioner’s conviction and

sentence. The petitioner cannot attempt to relitigate those claims
4

now before this Court.

The mandate rule is clear, and this Court

will comply with such rule.

Therefore, the petitioner’s motion as

to claims one and three must be denied.
In

his

objections,

the

petitioner

believes

that

he

was

promised an additional reduction to his sentence under U.S.S.G.
§ 3E1.1(b).

In particular, he contends that the Government

promised to move for the one-level reduction in his sentence.
Under that section of the sentencing guidelines, it states the
following:
b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to the
operation of subsection (a) is level 16 or greater, and
upon motion of the government stating that the defendant
has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying
authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for
trial and permitting the government and the court to
allocate their resources efficiently, decrease the
offense level by 1 additional level.
U.S.S.G. § 3E1.1(b) (emphasis added).

However, the petitioner’s

plea agreement explicitly states that the Government would “not
recommend a third level of reduction under U.S.S.G. 3E1.1” because
“the defendant did not execute the plea agreement until after the
deadline provided for in an earlier plea letter.”
No. 5:09CR21-07, ECF No. 304.

Criminal Action

Moreover, the petitioner’s pre-

sentence report reiterates that the Government would not move for
the

one-level

interpretation

reduction.
of

plea

Id.

agreements,

5

Contract

law

and

“parties

the

guides
to

the
the

agreement should receive the benefit of the bargain.”
States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997).

United

Here, the plea

agreement explicitly states that the Government would not move for
the one-level reduction. In addition to that clear language in the
agreement, it should be noted that a district court cannot grant
the

one-level

Government.
2006).

reduction

in

the

absence

of

a

motion

by

the

United States v. Chase, 466 F.3d 310, 316 (4th Cir.

Based on the record and the law before this Court, it is

clear that the petitioner’s objections lack any merit.

Therefore,

those objections are overruled, and the report and recommendation
of the magistrate judge is affirmed and adopted as to petitioner’s
first and third claims.
B. Petitioner’s Ineffective Assistance of Counsel Claim Lacks Merit
In the petitioner’s second claim, he argues that his counsel
inadequately explained the criminal proceedings he encountered.
More specifically, he contends that his counsel indicated that he
would

receive

a

shorter

sentence,

and

that

his

counsel

insufficiently tried to obtain a sentence similar to those of the
petitioner’s co-defendants in the underlying criminal action.
The record shows that the petitioner has not proffered any
proof that satisfies the standard as set forth in Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The holding in Strickland
requires that the petitioner “demonstrate both that his counsel’s
performance fell below the standard of objective reasonableness and

6

that the deficient performance was prejudicial to his defense.”
United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014) (citing
Strickland, 466 U.S. at 687-88).

During the petitioner’s plea

hearing, this Court asked the petitioner whether he believed his
counsel “adequately and effectively represented” him throughout the
criminal action, to which the petitioner answered, “Yes, sir.”
Criminal Action No. 5:09CR21-07, ECF No. 372.

This Court also

asked the petitioner whether he believed that his counsel “left
anything at all undone that you think he should have done on your
behalf,” to which he responded, “No, sir.”

Id.

Finally, this

Court asked the petitioner whether he believed that he “fully
[understood] the consequences of a guilty plea in this case,” to
which the petitioner answered, “Yes, sir.”

Id.

All of those

statements and responses, as well as other similar exchanges, were
made under oath before this Court.

As the Supreme Court of the

United States has stated, “[s]olemn declarations in open court
carry a strong presumption of verity” in the plea hearing context.
Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Looking at the

under-oath statements by the petitioner at his sentencing, it is
clear that he attested to not only his understanding of the
proceedings,

but

also

to

the

effectiveness

of

his

counsel.

Notwithstanding the petitioner’s clear statements at his plea
hearing, the petitioner’s counsel obtained a lower sentence under
the petitioner’s plea agreement than what would normally be found

7

under the sentencing guidelines.

Such a result does not satisfy

the first or second element of the test set forth in Strickland.
Based on the record, this Court finds that the petitioner’s second
claim lacks merit.

Thus, the report and recommendation of the

magistrate judge must be affirmed and adopted in its entirety.
IV.

Conclusion

For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 12) is AFFIRMED AND ADOPTED.
Further, the petitioner’s objections (ECF No. 15) are OVERRULED.
Accordingly, the petitioner’s motion under § 2255 (ECF No. 1) is
DENIED.

It is ORDERED that this civil action be DISMISSED and

STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal this order of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

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DATED:

October 16, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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