Reichert v. United States, CASE NO. 2:13-CV-1275
| Decision Date | 23 October 2014 |
| Docket Number | CASE NO. 2:13-CV-1275 |
| Parties | ANTHONY M. REICHERT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Petitioner, a federal prisoner, has filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255. This matter is before the Court on petitioner's motion, the response, petitioner's traverse and the record in the underlying criminal case. For the following reasons, the Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED.
On May 17, 2012, while represented by counsel, and pursuant to the terms of a plea agreement signed on May 1, 2012, petitioner pleaded guilty to a Bill of Information charging petitioner with one count of Coercion and Enticement of a Minor in violation of 18 U.S.C. 2422(b) and a separate forfeiture relating to the computer and instrumentalities used to commit the offense. On December 13, 2012, the Court sentenced petitioner to 148 months of incarceration followed by ten years of supervised release.
On December 30, 2013, petitioner file a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255. In the petition, he raises a claim of ineffectiveassistance of counsel based on the following allegations:
1) Counsel threatened as a form of coercion the Movant into signing a Plea Agreement. Movant questioned Counsel about Defense of Entrapment. Counsel refused to follow Movant's wishes and advised Movant not to tell the Court anything more than acceptance of the Plea Agreement.
2) Counsel also failed to argue at Sentencing the issues regarding the PreSentence Investigation Report which were in error, thus lowering the recommended sentencing guideline calculation due to the increases being elements of the crime charged.
3) Counsel also failed to argue that the Court lacked jurisdiction under the provisions of the Tenth Amendment after consideration that the Necessary and Proper Clause to the Constitution was properly used to advise the State of Ohio that the crime charged was illegal and then the State of Ohio criminalized the Movant's actions; but then after the State arrested the movant, they forum shopped the punishment to the Feds.
It is the United States' position that this claim is without merit. For the following reasons, it will be recommended that the motion to vacate be DENIED.
I. LEGAL STANDARD
A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two-part test of effective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In order to obtain relief, a prisoner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59.
The second, or "prejudice" requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59.
It is with this standard in mind that the Court will examine petitioner's claim of ineffective assistance of counsel.
Petitioner argues that he was coerced into signing the plea agreement by his counsel with the threat of facing additional criminal charges. Because a criminal defendant waives numerous constitutional rights when he enters a plea of guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969); see also United States v. Webb, 403 F.3d 373 (6th Cir. 2005). "'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" North Carolina v. Alford, 400 U.S. 25, 31 (1970). In applying this standard, a court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637 (1976).
Criminal defendants are entitled to constitutionally effective assistance of counsel during the plea negotiation phase. Missouri v. Frye, -U.S. -, 132 S.Ct. 1399, 1407 (2012). ("In today's criminal justice system, ... the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant."). See also Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 1386 (2012); Humphress v. United States, 398 F.3d 855, 859 (6thCir. 2005), citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
The decision to plead guilty - first, last and always - rests with the defendant, not his lawyer. Although the attorney may provide an opinion on the strength of the government's case, the likelihood of a successful defense, and the wisdom of a chosen course of action, the ultimate decision of whether to go to trial must be made by the person who will bear the ultimate consequence of a conviction.
Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003).
Here, pursuant to the terms of petitioner's negotiated pre-indictment plea agreement, the government agreed that, in exchange for the petitioner's plea of guilty to the Information, it would not pursue any additional charges against petitioner. During the plea hearing, the Court asked several questions to ensure that petitioner was voluntarily and knowingly entering a guilty plea. For example, the Court asked whether petitioner was satisfied with his counsel and petitioner responded that he was. The Court informed petitioner of the Constitutional rights he was waiving by pleading guilty and the government presented the essential terms of the plea agreement signed by petitioner. The Court engaged petitioner in the following colloquy:
[Petitioner]: No, Your Honor.
Consequently, the record refutes petitioner's claim. That is, the record demonstrates that petitioner was competent, understood his plea agreement, and was not coerced into signing it. Petitioner's sworn statements were "[s]olemn declarations in open court" and, therefore, "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). This means, as a practical matter, that a defendant may not simply claim later that his answers were untrue and expect to receive relief. Petitioner makes no specific assertion of coercion and his conclusory assertion is insufficient to support his claim. In view of this record, petitioner's unsupported allegation that his guilty plea was coerced and not knowing or intelligent carries no weight. See Jackson v. United States, 2010 WL 1741340 (S.D. Ohio Apr. 28, 2010) adopted and affirmed 2010 WL 2545184 (S.D. Ohio June 16, 2010). As a result, petitioner's claim that his counsel rendered ineffective assistance by coercing his guilty plea is without merit.
Petitioner also asserts, within the first prong of his claim, that his counsel was ineffective for failing to advise him regarding, or to pursue, an entrapment defense. As petitioner explains in his brief in support of his motion, "he was not predisposed to his actions, but due to his many years of alcohol abuse before becoming an active member of AA and going through detox, his inhibitions were lessened, thus lowering the threshhold of his reluctance to commit the crime that he was enticed and induced by State Government agents deception which actually implanted the criminal design in themind of the Defendant/Movant in this case."
Entrapment is a complete defense to a criminal charge, on the theory that, "[g]overnment agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." " Joiner v. United States, 2010 WL 2643421, *2 (N.D. Ohio June 30, 2010), quoting Jacobson v. United States, 503 U.S. 540, 548 (1992). The defense of entrapment has two elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Id., citing Mathews v. United States, 485 U.S. 58, 63 (1988); see also United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). Of these two elements, predisposition is the more important. Id.
The statement of facts, read into the record at the plea hearing by HSI Task Force Officer Detective Marcus Penwell of the Franklin County Internet Crimes Against Children Task Force, reads as follows:
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