Dees v. United States, 5:15-CR-227-FL-1
| Decision Date | 14 November 2018 |
| Docket Number | 5:17-CV-420-FL,5:15-CR-227-FL-1 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | JAMES FORRESTER DEES, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This case comes before the court, in part, on: (1) the pro se motion (or petition)1 (D.E. 82) by petitioner James Forrester Dees ("petitioner" or, in context, "defendant") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255") filed on 16 August 20172; (2) the government's motion (D.E. 88) to dismiss the petition filed on 27 September 2017, to which petitioner responded (D.E. 91) on 18 October 20173; and (3) petitioner's amended motion (D.E. 99) to vacate, set aside, or correct his sentence pursuant to § 2255 on 18 May 2018.4 Also before the court is petitioner's motion (D.E. 94), filed on 14 February 2018, to unseal his plea agreement.
Petitioner's motion to unseal his plea agreement was referred to the undersigned magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A). See 1 Mar. 2018 2nd Non-Public D.E. The other motions were referred to the undersigned magistrate judge for a memorandum andrecommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings ("§ 2255 Rules"). 17 Nov. 2017 Public D.E.; 13 June 2018 Public D.E.
On 11 August 2015, petitioner was charged in a two-count indictment with one count of possession of a firearm by a convicted felon and aiding and abetting the same, in violation of 18 U.S.C. §§ 922(g)(1), 924, and 2 (Count One); and one count of possession of a stolen firearm and aiding and abetting the same, in violation of 18 U.S.C. §§ 922(j), 924(a)(2), and 2 (Count Two). Indict. (D.E. 1) 1-2.
On 2 September 2015, attorney Rudolf A. Ashton ("Ashton") entered a notice of appearance on petitioner's behalf. Ashton's Appear. Notice (D.E. 26). On 17 December 2015, pursuant to a plea agreement, dated 11 November 2015, petitioner pleaded guilty before a magistrate judge to the charge in Count One of the indictment with the remaining count to be dismissed at sentencing. See Minute Entry dated 17 Dec. 2015; Plea Agmnt. (D.E. 40). Petitioner's plea agreement contained an appeal waiver stating that petitioner agreed:
To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.
Plea Agmnt. ¶ 2.c.
The presentence investigation report ("PSR") determined petitioner's guideline range to be 78 to 97 months' imprisonment on Count One, based on a total offense level of 27 and criminal history category II.5 PSR (D.E. 54) ¶ 68. In computing petitioner's base offense level, it was determined that petitioner had a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because petitioner had committed the instant offense subsequent to sustaining one felony conviction for either a crime of violence or a controlled substance offense. PSR ¶ 55. In computing petitioner's total offense level, the following three enhancements were included: (1) a 4-level increase because the offense involved between 8 and 24 firearms, pursuant to U.S.S.G. § 2K2.1(b)(1)(B) (see PSR ¶ 56); (2) a 2-level increase because the firearms were stolen, pursuant to U.S.S.G. § 2K2.1(b)(4)(A) (see PSR ¶ 57); and (3) a 4-level increase for using or possessing the firearms in connection with another felony offense, pursuant to U.S.S.G. § 2K2.1(b)(6)(B) (see PSR ¶ 58).
At sentencing on 5 May 2016 (Minute Entry dated 5 May 2016 (D.E. 58)), the court adopted the PSR (Statement of Reasons (D.E. 64) 1) and sentenced petitioner to a term of 86 months' imprisonment and 3 years' supervised release (J. (D.E. 63) 1-2, 4) on Count One. Count Two was dismissed. J. 1.
On 12 May 2016, petitioner filed a notice of appeal. D.E. 65. On 21 December 2016, the Fourth Circuit granted the government's motion to dismiss the appeal on the ground that "the issues [petitioner sought] to raise on appeal [fell] squarely within the compass of his waiver of appellate rights." 21 May 2016 Ord. (D.E. 74) 1.
On 17 March 2017, petitioner filed a petition for writ of certiorari (Appeal Remark dated 22 Mar. 2017 (D.E. 77)), which was denied on 24 April 2017 (Appeal Remark dated 24 Apr. 2017 (D.E. 78)).
In his original motion, executed under penalty of perjury, petitioner asserts the following seven claims: (1) the six-level increase petitioner received to his base offense level at sentencing for committing the instant offense subsequent to sustaining a felony conviction for a crime of violence was unconstitutional pursuant to United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) ("Claim One"); (2) the two-level enhancement for the possession of stolen firearms and the four-level enhancement for possessing the firearms in connection with another felony offense were attributed to petitioner in error ("Claim Two"); (3) petitioner's attorney was ineffective for failing to inform petitioner of his right to pursue pretrial motions, specifically, a motion to suppress ("Claim Three"); (4) petitioner's attorney was ineffective for failing to inform petitioner that by signing the plea agreement, petitioner was waiving his right to appeal as well as other rights he was entitled to receive, and thus, petitioner did not enter into the plea agreement knowingly, voluntarily, or intelligently ("Claim Four"); (5) petitioner's attorney was ineffective for failing to inform petitioner of the elements of the charge to which he was pleading guilty ("Claim Five"); (6) the presiding district judge committed four felonies when she failed to inform petitioner of the court's jurisdiction at sentencing in violation of 18 U.S.C. §§ 1001, 2505, 2331 and Section 800 of the Patriot Act ("Claim Six"); and (7) the presiding district judge and petitioner's attorney committed fraud regarding payment the attorney received for representing petitioner on appeal ("Claim Seven").
In his response to the government's motion to dismiss the motion, petitioner raised the additional claim that the magistrate judge lacked jurisdiction to take petitioner's guilty plea ("Claim Eight").
The claims in petitioner's amended motion, also executed under penalty of perjury, are largely addressed in petitioner's original motion except for the following two unique claims: (1) petitioner's attorney was ineffective for failing to understand that the appeal waiver in petitioner's plea agreement would prejudice petitioner by preventing review of his illegal sentence ("Claim Nine"); and (2) the government engaged in prosecutorial misconduct when it included an appeal waiver in petitioner's plea agreement knowing that the Fourth Circuit in Gardner would reach a decision that would have purportedly reduced the sentence he would otherwise receive under the plea agreement ("Claim Ten"). He also asserts that he is entitled to appointment of counsel and a hearing.
In his motion to unseal his plea agreement, petitioner requests that the court unseal his plea agreement and order the Clerk of Court to provide petitioner with a copy. Pet'r's Mot. to Unseal 1. Petitioner asserts that he needs a copy of his plea agreement in order to file his motion pursuant to § 2255, namely, to address his contention that his attorney was ineffective for failing to inform him of the ramifications of the appeal waiver in the plea agreement. Id. ¶ 5. Petitioner further maintains that "a copy of the plea agreement is necessary in order to evaluate exactly what was agreed to by [petitioner's] attorney and the Assistant United States Attorney." Id. ¶ 7.
Petitioner has not demonstrated a particularized need for the document. See, e.g., United States v. Butler, 178 F. App'x 327, 327 (4th Cir. 2006) (); Morgan v. United States, No. 2:01-CR-1-1BO, 2011 WL 1792555, at *1 (E.D.N.C. 10 May 2011) ( petitioner's motion to unseal the Statement of Reasons because petitioner failed to show a particularized need for the document).
Petitioner merely makes general assertions of need. Moreover, while petitioner contends that he requires a copy of the plea agreement to address the ramifications of the appeal waiver, petitioner's motion and amended motion clearly demonstrate that he is knowledgeable of the plea waiver and its terms. Additionally, petitioner stated under oath at his arraignment that his attorney read him the plea agreement and that he understood everything in his plea agreement, including the appeal waiver. Arraign. Tr. 20:2-4; 20:17 to 21:3. Therefore, petitioner was aware of and understood the terms that were agreed upon in the plea agreement.
Accordingly, petitioner's motion (D.E. 94) to unseal the plea agreement and his request for copies is DENIED. See Hands v. United States, No. 7:11-CR-98-FL-1, 2016 WL 4995074, at *3 (E.D.N.C. 19 Sept. 2016) (denying pet...
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