United States v. Schenk

• Decision Date: 14 August 2012
• Docket Number: Case No. 3:07cr90/LC/CJK,Case No. 3:09cv342/LC/CJK
• Parties: UNITED STATES OF AMERICA, v. LEONARD ALLEN SCHENK, Defendant.
• Court: U.S. District Court — Northern District of Florida

UNITED STATES OF AMERICA, v.LEONARD ALLEN SCHENK, Defendant.

Case No. 3:07cr90/LC/CJK

Case No. 3:09cv342/LC/CJK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Dated: August 14, 2012

REPORT AND RECOMMENDATION

This matter is before the court upon defendant's motion to vacate, set aside, or correct sentence(doc. 120), filed pursuant to 28 U.S.C. § 2255.The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636, andNORTHERN DISTRICT OF FLORIDA LOCAL RULE72.2(B).Having conducted a careful review of the record and the arguments presented, the undersigned concludes that the motion should be denied.

BACKGROUND AND PROCEDURAL HISTORY

The defendant, Leonard Allen Schenk, was charged on August 21, 2007, by superseding indictment with conspiracy to defraud the United States of property exceeding $1,000.00 in value (count I), in violation of 18 U.S.C. §§ 641and371, nine counts of theft of government property (counts II, VI, VIII, IX, XII, XIV, XV, XVII, and XIX), in violation of 18 U.S.C. §§ 641and2, eight counts of exportation of stolen property (counts VII, X, XI, XIII, XVI, XVIII, XX, and XXI), in violation of 22 U.S.C. § 2778(b)(2) and (c), and22 C.F.R. §§ 121.1,123.1,127.1(a),127.1(c), and127.3, solicitation to commit murder (count III), in violation of 18 U.S.C. § 373,travel in interstate commerce in the commission of murder for hire (count IV), in violation of 18 U.S.C. § 1958, and attempt to kill a witness of the United States (count V), in violation of 18 U.S.C. § 1512(a)(1)(A).(Doc. 21, pp. 6-7, 18-30).The same superseding indictment also charged a coconspirator, the defendant's mother, Jerri C. Stringer("Stringer"), with the same offenses, except that Stringer was not charged under either count III (solicitation to commit murder), count IV (travel in interstate commerce in the commission of murder for hire), or count V (attempt to kill a witness of the United States).(Doc. 21, pp. 6-7, 18-30).

On September 18, 2007, defendant executed a written plea agreement, filed with the district court, whereby Schenk agreed to plead guilty to all twenty-one counts of the superseding indictment in exchange for the government's promise to forebear from bringing further criminal charges arising out of the same transactions or occurrences to which defendant was pleading.(Doc. 43, pp. 2, 7).Schenk agreed that he was pleading guilty "because he is in fact guilty" of the offenses charged, admitting that were the case to go to trial, "the government could present evidence to support [the] charges beyond a reasonable doubt."(Doc. 43, p. 7).Defendant acknowledged his understanding that "any prediction of the sentence which may be imposed is not a guarantee or binding promise."(Doc. 43, p. 11).To that end, the agreement also noted that "[b]ecause of the variety and complexity of issues which may arise at sentencing, the sentence is not subject to accurate prediction."(Doc. 43, p. 11).In concluding the plea agreement, defendant assured the court that "[t]here [were] no other agreements" between himself and the United States Attorney, and that he was entering the agreement "knowingly, voluntarily and upon advice of counsel."(Doc. 43, p. 14).The written plea agreement was signed by Schenk, his appointedcounsel, Assistant Federal Public DefenderRobert A. Dennis("Dennis"), and Assistant U.S. Attorney Stephen P. Preisser.¹(Doc. 43, p. 14).

On the same day, defendant appeared before Senior U.S. District JudgeLacey A. Collier for a plea colloquy.(Doc. 84).Schenk swore to tell the truth, affirming his understanding that a plea of guilty admits the truth of the offenses charged.(Doc. 84, pp. 3-4, 7).Defendant confirmed that he had read the superseding indictment, reviewed it thoroughly with his attorney, and understood the charges.(Doc. 84, 10-11).Schenk told the court that he had discussed with his attorney how the sentencing guidelines might apply, and swore to his understanding that counsel could not tell him or predict his actual sentence.(Doc. 84, p. 20).Further, defendant assured the courthe understood that in the event the sentence imposed was greater than he had hoped for or expected, he would remain bound by the plea of guilty and would not be permitted to withdraw it.(Doc. 84, p. 21).

Testifying under oath, defendant certified that he had reviewed the written plea agreement thoroughly and with the assistance of counsel, that he had no questions regarding its contents, and that the written agreement was inclusive of all the promises made to induce his guilty plea.(Doc. 84, pp. 21-22).In addition, Schenk attested that he had not been "threatened or coerced or pressured or intimidated in any way" to cause him to accede to the plea agreement.(Doc. 84, p. 24).Defendant swore that he was satisfied with the representation afforded by Mr. Dennis and that he had no complaint about his treatment by anyone at the offices of the Federal Public Defender.Schenk declined the opportunity to modify or supplement any of theanswers or testimony he had provided theretofore, and assured the court that he had no questions about anything discussed during the proceedings.(Doc. 84, p. 25).

In light of the foregoing exchange, the court found that defendant was alert and intelligent, and appreciated the nature of the charges against him, as well as the consequences of entering a guilty plea.(Doc. 84, p. 25).The court also found that Schenk was aware of the advisory sentencing guidelines, how they operate, and how their application might affect his sentence.(Doc. 84, p. 26).Finding defendant's decision to plead guilty to be "freely, voluntarily and understandably made . . . with the advice and counsel of a competent attorney" with whose representation he was satisfied, the court accepted Schenk's plea of guilty to all twenty-one counts of the superseding indictment.(Doc. 84, p. 26).

On December 6, 2007, Judge Collier presided over defendant's sentencing hearing.(Doc. 85).Apologizing for his actions, Schenk addressed the district court before his sentenced was imposed:

I would like to apologize to . . . anybody that may have been offended by my actions . . . .And . . . just to let you know that I made a mistake.And if you look back in my history, I'm not a violent person, never have been.All I've ever tried to do is take care of my family.I know I'm looking at time, and I just want to go down the road, get myself together so I can come back out and be productive and help my mother out and take care of her.That's all I have ever wanted to do.I got involved with some bad people in some bad things and made some mistakes.

(Doc. 85, p. 24).The court sentenced defendant to a term of 235 months' imprisonment on counts III and V, 120 months on counts II, IV, and VI through XXI, and a 60-month term on counts III and V, the terms to run concurrently one with the other.(Doc. 60, p. 3).

Schenk appealed his sentence to the U.S. Court of Appeals for the Eleventh Circuit("Eleventh Circuit"), where he was represented by Robert A. Harper, Jr.("Harper").(Doc. 127, pp. 34-43).On March 6, 2008, Harper furnished to defendant copies of his plea and cooperation agreement, plea colloquy transcript, and sentencing hearing transcript.(Doc. 127, p. 34).Having independently examined the record in its entirety, Harper moved to withdraw as defendant's counsel and filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), concluding that "no meritorious argument was preserved for review."(Doc. 127, p. 35).Nonetheless, Harper asked the Eleventh Circuit to permit Schenk to file a pro se brief raising any issue he believed to be of merit.(Doc. 127, p. 35).On March 17, 2008, the Eleventh Circuit authorized defendant to file a response to appellate counsel's Andersbrief, inviting defendant to raise all factual and legal grounds justifying reversal of his conviction and sentence.(Doc. 127, p. 43).Having received no response, the Eleventh Circuit issued a mandate on August 12, 2008, affirming defendant's sentence and concluding that its own independent review of the record revealed "no arguable issues of merit."(Doc. 105, p. 2).

DEFENDANT'S CLAIMS

Pursuant to 28 U.S.C. § 2255, defendant timely filed the instant motion to vacate, set aside, or correct sentence(doc. 120), asserting four grounds on which he believes he is being held in violation of the Constitution, laws, or treaties of the United States.Schenk contends in ground one that the government pressured, intimidated, and coerced him to plead guilty by threatening to indict his "totally innocent" younger brother.(Doc. 120, p. 4).In grounds two through four, defendant submits that trial counsel rendered ineffective assistance by (1)"incorrectly"informing him, inter alia, that he would receive no more than a ten-year sentence, thereby coercing his guilty plea, (2) failing to object when the sentencing court allegedly miscalculated his guideline range and failed to apply U.S. SENTENCING GUIDELINES MANUAL § 2X1.1(b)(3)(A), and (3) failing to object when the sentencing court allegedly miscalculated his criminal history points.(Doc. 120, pp. 5, 7, 8).

ANALYSIS

As a preliminary matter, the court notes certain general rules applicable in § 2255 proceedings following direct appeals, as well as the distinction between review under § 2255 and direct appeal."Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding."Mills v. United States, 36 F.3d 1052, 1055(11th Cir.1994)."A ground of error is usually 'available' on direct appeal when its merits can be reviewed without further factual development."Id."A claim not raised on direct appeal is procedurally defaulted unless the petitioner can establish cause and prejudice for his failure...