Cook v. United States

• Decision Date: 01 April 2015
• Docket Number: CASE NO. 14-20827-Civ-MORENO
• Court: U.S. District Court — Southern District of Florida
• Parties: HORACE COOK, Movant, v. UNITED STATES OF AMERICA, Respondent.

HORACE COOK,¹ Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 14-20827-Civ-MORENO

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

April 1, 2015

(12-20716-Cr-MORENO)

MAGISTRATE JUDGE P. A. WHITE

REPORT OF MAGISTRATE JUDGE

I. Introduction

This matter is before this Court on the movant's motion to vacate pursuant to 28 U.S.C. §2255, attacking the constitutionality of his conviction and sentence for Hobbs Act Robbery, entered following a guilty plea in case no. 12-Cr-2 0716-Moreno.

This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Cases in the United States District Courts.

The Court has reviewed the motion (Cv-DE#1), the government's response (Cv-DE#19), movant's reply thereto (Cv-DE#23), the Presentence Investigation Report ("PSI"), the Court's Statement ofReasons ("SOR"), and all pertinent portions of the underlying criminal file.

This Court, recognizing that the movant is pro se, afforded him liberal construction pursuant to Haines v. Kerner, 404 U.S. 419 (1972). The movant raises the following grounds for relief:

1. He was denied effective assistance of counsel when his attorney provided him false information to induce movant to plead guilty. (Cv-DE#1:3).

2. During his first appearance before a United States Magistrate Judge, movant was wrongfully informed that his pending state charges had been dismissed. (Cv-DE#1:4).

3. He has suffered a violation of the Double Jeopardy Clause of the United States Constitution. (Cv-DE#1:5).

On October 14, 2014, movant filed a reply to the government's response to his Section 2255 motion. (Cv-DE#23). Therein, movant appears to raise the following claim for the first time:

4. The PSI wrongfully assessed him two additional levels pursuant to U.S.S.G. §2B3.1(b)(2)(F) as a threat of death was never made in conjunction with the robbery. (Cv-DE#23:11,13).

II. Factual Background and Procedural History

A. Facts of the Offenses

Briefly, the facts as set forth by the government during the change of plea proceedings, which movant acknowledged as true, reveal as follows:

If this matter were to proceed to trial, the Government would prove the stated facts beyond a reasonable doubt: The parties agree that the stated facts, which do notinclude all facts known to the Government, and the defendant, Horace Cook, are sufficient to prove guilty for Count 4; that is, on or about August 17, 2012 in Miami-Dade County in the Southern District of Florida, the defendant violated Title 18, United States Code Section 1951.

More specifically, on August 14, 2012, the defendant entered a Laundromat located at 10396 Northwest 7^thAvenue in Miami, Florida. Upon entering the Laundromat, the defendant approached the front counter where two employees were standing. As the defendant approached, both employees saw the defendant concealing one of his hands under his shorts.

The defendant demanded that employee one open the register and give the defendant the money while making gestures with his concealed hand. Employee two eventually opened the register and gave the defendant all the money. The defendant then turned and walked out of the business.

On August 15, 2012, the defendant entered the same Laundromat located at 10396 Northwest 7^th Avenue in Miami, Florida, and the same two employees were working behind the counter.

Recognizing the defendant from the previous day's robbery, employee one alerted employee two of the defendant's reappearance. At this point, the defendant demanded the money from the register, again concealing his hand under his shorts, and the defendant stole approximately $200.

On August 16, 2012, the defendant went back to the Laundromat located at 10396 Northwest 7^th Avenue in Miami, Florida. However, this time there was a different employee working. The defendant approached with his hand concealed and demanded the money from the cash register. The employee opened the register and gave the defendant the cash from the register.

On August 17, 2012, the defendant entered Forever Young Clothing Boutique located at 10645 Northwest 7^th Avenue in Miami, Florida. The defendant was again concealing his hand under his shirt. Upon entering the boutique, the defendant headed to the employee behind the register and demanded the money in the register. As the employee was attempting to comply with the demand and remove - - excuse me. I'm sorry, Your Honor. As the employee wasattempting to comply with the demand and remove the money from the register, the defendant reached underneath the counter with his free hand and removed the employee's purse valued at approximately $3,000 and contained $600 in cash. The defendant then fled.

All of the victims were shown a six pack of photographs, one of which contained the picture of the defendant. Each of the four victims positively identified the defendant as the assailant from each of the robberies.

(Cr-DE#42:4-6).

B. Indictment, Pre-trial Proceedings, Conviction,Sentencing, and Direct Appeal

On September 27, 2012, a 4-count Indictment was returned against movant, charging him with four counts of Hobbs Act robbery, which occurred on August 14, 15, 16, and 17, 2012, in violation of 18 U.S.C. §1951. (Cr-DE#1).

On December 20, 2012, movant entered into a negotiated, written plea agreement with the government, agreeing to plead guilty to Count 4 of the Indictment, in exchange for dismissal of the remaining counts after sentencing. (Cr-DE#20:1). Pursuant to the specific terms of the plea agreement, movant acknowledged and understood the sentence would be imposed by the Court after considering the Federal Sentencing Guidelines and Policy Statements. (Id.). He further acknowledged and understood that the Court would compute an advisory sentence under the Sentencing Guidelines and that the applicable guidelines will be determined by the Court relying in part on the results of a PSI, with the full understanding the Court may depart from the advisory sentencing guideline range computed. (Id. :1-2). Aware of the foregoing, movant acknowledged the Court had the authority to impose any sentence within and up to the statutory maximum authorized by law for theoffense for which he was pleading guilty and that he may not withdraw his plea solely as a result of the sentence imposed. (Id.:2).

Moreover, movant understood and acknowledged the Court may impose a term of imprisonment of up to 20 years, followed by a term of supervised release of up to 3 years. (Cr-DE#20:2).

Next, movant also acknowledged that in exchange for the undertakings made by the government as part of the plea agreement, he waived his right to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, except under limited circumstances. (Cr-DE#20:3).

Finally, movant agreed that the plea agreement was the entire agreement and understanding between himself and the government, with no other agreements, promises, representations or understandings. (Cr-DE#20:4).

On the same day, movant appeared before the District Court for a plea colloquy conducted pursuant to Fed.R.Civ.P. 11. (Cr-DE#42). At the time, after movant was given the oath, he agreed with the factual basis proffered by the government stating his involvement in the robberies. (Cr-DE#42:3-6). When asked whether he did in fact commit the offenses set forth by the government, movant responded in the affirmative. (Id.:6). Then, when the Court asked movant how he wished plead as to the August 17, 2012 robbery at Forever Young Boutique, he responded, "[g]uilty, Judge." (Id.).

Next, movant acknowledged having signed the plea agreement after having read it. (Cr-DE#42:7). Movant also understood and acknowledged that by entering into a plea, he was giving up certain constitutional rights, including the right to a trial by jury, toa trial before a judge, to file a direct appeal, to remain silent, to confront and cross-examine government witnesses, to call witnesses to testify on his behalf, etc. (Id.). Likewise, he understood that by entering into a guilty plea, he also forfeited various civil rights, including the right to vote, to carry a firearm, to hold office, etc. (Id.). He also acknowledged that if he were not a United States citizen, his guilty plea would result in removal or deportation to his home country and that he would be precluded from re-entering the United States. (Id.). Notwithstanding the foregoing, movant nonetheless insisted he wanted to enter a guilty plea. (Id.).

When asked whether he had an opportunity to discuss with counsel any possible defenses, the consequences of his guilty plea and the sentencing guidelines, movant responded in the affirmative. (Cr-DE#42:8). Movant also indicated he was satisfied with counsel's representation and denied needing more time to discuss the proceedings with counsel. (Id.).

Next, when discussing whether movant has ever been to a psychiatrist or a mental institution, he responded in the affirmative and explained he suffered from "mental psychology episodes" ever since 1993, having been in and out of facilities and mental hospitals. (Cr-DE#42:8). Movant further elaborated he suffers from audio command hallucinations and schizophrenia. (Id.). However, when asked whether he understood the proceedings before him, movant responded, "yes." (Id.:8-9). Specifically, he explained he was present before the court for his guilty plea and denied anyone forcing him to plead guilty. (Id.:9). Moreover, movant indicated he took medication twice a day that calms him down. (Id.). Notwithstanding his mental condition and medication, movant understood the proceedings and that he could be sentenced up to 20 years in prison for the robbery committed. (Id.:9-10). He furtheracknowledged a period of up to 3 years of supervised release could be imposed, along with a fine of up to $1,000,000.00 and a $100.00 special assessment. (Id.:10). Despite the...