United States v. Jones, Criminal No. 0:13–480–CMC.

• Decision Date: 14 July 2015
• Docket Number: Criminal No. 0:13–480–CMC.
• Parties: UNITED STATES of America, v. William Lee JONES, Defendant.
• Court: U.S. District Court — District of South Carolina

114 F.Supp.3d 310

UNITED STATES of America,

v.William Lee JONES, Defendant.

Criminal No. 0:13–480–CMC.

United States District Court, D. South Carolina, Rock Hill Division.

Signed July 14, 2015.

Stacey Denise Haynes, U.S. Attorney's Office, Columbia, SC, for Plaintiff.

James P. Rogers, Federal Public Defender's Office, Columbia, SC, for Defendant.

OPINION and ORDER

CAMERON McGOWAN CURRIE, Senior District Judge.

Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 56. The Government filed a motion to dismiss or for summary judgment. ECF No. 60. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond.

On August 15, 2014, Defendant replied to the Government's motion, arguing that "[six] months after I was sentenced to 188 months my lawyer [James] Rogers wrote [two] letters saying I wasn't qualified for [the Armed Career Criminal enhancement] and I was falsely sentenced...." Reply at 1, ECF No. 63. Defendant posits, "What kind of stuff is this, to wait [six] month[s] to tell me I am falsely sentenced, on his own." Id.

Out of an abundance of caution, the court notified the parties that it was considering Defendant's reply as an amendment to the § 2255 motion, asserting a claim of ineffective assistance of counsel. The court appointed counsel under 18 U.S.C. § 3006A(a)(2)(B) and directed supplemental briefing regarding the claim of ineffective assistance of counsel and related issues concerning Defendant's sentence as an armed career criminal. See Order, ECF No. 70.

On December 29, 2014, the Government responded to the court's briefing order. ECF No. 77. On January 23, 2015, Defendant, through counsel, replied.

On January 9, 2015, the United States Supreme Court ordered the parties in United States v. Johnson, 526 Fed.Appx. 708 (8th Cir.2013), cert. granted, ––– U.S. ––––, 134 S.Ct. 1871, 188 L.Ed.2d 910 (2014), to brief "whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague." 574 U.S. ––––, 135 S.Ct. 939, 190 L.Ed.2d 718 (2015) (order restoring case to argument calendar for reargument and ordering supplemental briefing). This court determined the matter should be held in abeyance pending the decision in Johnson. On June 26, 2015, the Supreme Court held the "residual clause" of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutionally vague. 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

For reasons more fully explained below, the court finds counsel was ineffective at sentencing, that Defendant was prejudiced by counsel's ineffectiveness, that the sentence imposed January 8, 2014, should be vacated, and this matter should be set for resentencing.

I. BACKGROUND

In early June 2013, Defendant was indicted in this District for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). On June 19, 2013, the Government filed an Information notifying Defendant that based upon his prior criminal record, he was subject to the enhanced penalties provided for in 18 U.S.C. § 924(e). ECF No. 23.¹

On September 25, 2013, Defendant entered into a written plea agreement to plead to felon in possession. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. On September 26, 2013, Defendant appeared before the court and after a thorough Rule 11 hearing (which Defendant does not challenge), entered a guilty plea to felon in possession.

A Pre–Sentence Report (PSR) concluded Defendant was an armed career criminal under the ACCA and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's four prior convictions for South Carolina burglary third degree, as well as his convictions for assault on a correctional officer and taking of hostage by inmate, all qualified as "violent felonies" under the ACCA. See PSR ¶¶ 22, 24, 25, ECF No. 41.

No objections to the PSR were filed by either the Government or Defendant. On January 8, 2014, Defendant appeared for sentencing. The court denied Defendant's motion for downward variance and sentenced him to 188 months' imprisonment.² Defendant did not file a direct appeal.

II. ORIGINAL MOTION

On July 1, 2014, the Clerk of Court received Defendant's motion for relief under 28 U.S.C. § 2255 which he had mailed June 27, 2014. Defendant's motion presents two grounds for relief: Defendant argues he was incorrectly found to be an armed career criminal (Ground One) and there was insufficient evidence of his guilt (Ground Two).

On July 14, 2014, the Government moved to dismiss or, in the alternative, for summary judgment, ECF No. 60, arguing that the grounds presented in Defendant's § 2255 motion are barred by the terms of the plea agreement and, if not, are without merit.³

Defendant filed a pro se response in opposition to the Government's original motion for summary judgment. ECF No. 63.

A. WAIVER—STANDARD

In his plea agreement, Defendant waived his right to challenge his conviction or "the sentence" via direct appeal or by motion for relief pursuant to § 2255 except for claims of ineffective assistance of counsel and/or prosecutorial misconduct. Plea Agreement at ¶ 10, ECF No. 36. The Government contends that Defendant's two grounds for relief fall squarely within this waiver.

"Plea bargains rest on contractual principles, and each party should receive the benefit of its bargain." United States v. Blick, 408 F.3d 162, 173 (4th Cir.2005) (internal quotation marks omitted). As a part of a plea bargain, "a criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary." United States v. Lemaster, 403 F.3d 216, 220 (4th Cir.2005). To determine whether a waiver is knowing and voluntary, courts examine factors such as "the experience and conduct of the accused, as well as the accused's educational background and familiarity with the terms of the plea agreement." United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.2012) (quoting United States v. General, 278 F.3d 389, 399 (4th Cir.2002) ). "Generally, if a district court questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid." Id. However, the issue is ultimately evaluated by reference to the totality of the circumstances. United States v. General, 278 F.3d 389, 400 (4th Cir.2002).

"[A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court." United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Even where an appellate waiver provision is valid, a court will not enforce the waiver to preclude "a few narrowly-construed errors" that fall automatically outside its scope. United States v. Copeland, 707 F.3d 522, 530 (4th Cir.), cert. denied, 571 U.S. ––––, 134 S.Ct. 126, 187 L.Ed.2d 89 (2013) (internal quotation marks omitted). This "narrow class of claims" encompasses errors "the defendant could not have reasonably contemplated when the plea agreement was executed." United States v. Poindexter, 492 F.3d 263, 270 (4th Cir.2007) (internal quotation marks omitted). Types of "illegal" sentences which a defendant can successfully challenge despite an appeal waiver involve fundamental issues, including claims that a district court exceeded its authority, see, e.g., United States v. Broughton–Jones, 71 F.3d 1143, 1147 (4th Cir.1995) (finding district court's imposition of restitution in absence of authority to do so to be "illegal"), or "premised its sentence on a constitutionally impermissible factor such as race, or violated the post-plea right to counsel." Copeland, 707 F.3d at 530 (internal quotation marks and alterations omitted). The Fourth Circuit and other circuit courts have held that if a defendant is informed of the statutory penalties associated with the ACCA, a challenge to a sentencing enhancement based upon being found an armed career criminal falls within the scope of the waiver.See United States v. Haskins, 198 Fed.Appx. 280 (4th Cir.2006) ; United States v. McGee, 516 Fed.Appx. 515 (6th Cir.2013) ; United States v. Adkins, 636 F.3d 432, 434 n. 3 (8th Cir.2011).

B. WAIVER—DISCUSSION

The Government argues that the issues presented in Defendant's original § 2255 motion are barred by Defendant's waiver of post-conviction remedies contained in his plea agreement. Defendant did not respond to this argument in his pro seopposition filed in reply to the Government's dispositive motion.

At Defendant's Rule 11 hearing, the court reviewed the entire plea agreement with Defendant, including the paragraph containing the appellate and post-conviction relief waiver. The court found that Defendant understood the terms of the plea agreement, including the waiver, that Defendant was competent to enter the plea, and that Defendant's plea was knowing and voluntary. Defendant presents no argument that he was not competent to enter the plea or that he did not understand the terms of the waiver. Accordingly, the Government is entitled to summary judgment on Defendant's original grounds raised in his motion under § 2255, as neither ground for relief asserts a claim of ineffective assistance of counsel or prosecutorial misconduct.

III. AMENDMENT—INEFFECTIVE ASSISTANCE OF COUNSEL

A. BACKGROUND

In his reply to the Government's summary judgment motion, Defendant reported that he had received a letter from defense counsel that "I wasn't qualified for [the ACCA enhancement] and I was falsely sentenced...." Reply at 1, ECF No. 63. The court notified the parties...