United States v. Tincher

• Decision Date: 08 July 2013
• Docket Number: Case No. 3:08-cr-036
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KEVIN R. TINCHER Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, Plaintiff,

v.KEVIN R. TINCHER Defendant.

Case No. 3:08-cr-036

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

July 8, 2013

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS ON THE MERITS

This is an action on a Motion to Vacate pursuant to 28 U.S.C. § 2255. As with all § 2255 Motions filed at the Dayton location of court, it was referred to the undersigned on filing, under the Court's General Order of Assignment and Reference.

Defendant pleads the following grounds for relief in his original Motion:

Ground One: Tincher did not willfully engage in the business of dealing firearms.

Ground Two: Defense counsel was constitutionally ineffective for failing to investigate and understand the elements of the charges against Tincher.

Ground Three: Assistant United States Attorney vindictively sought a Superseding Indictment against Tincher for exerting his constitutionally protected rights.

Ground Four: This Court violated Fed. R. Crim P. 11 when it failed to question Tincher about the elements of Count Six, rendering Tincher's plea involuntary.

Ground Five: Tincher's sentence was impermissible due to a double-counting enhancement.

Ground Six: Tincher was subject to sentencing entrapment.

(Amended Motion, Doc. No. 79, PageID 488, incorporating by reference Doc. No. 74, PageID 388-394.)

In the original Report and Recommendations, the Magistrate Judge found Grounds One, Three, Four, Five, and Six procedurally defaulted and Ground Two to be without merit (Report and Recommendations, Doc. No. 75). Rather than file objections, Tincher obtained leave to file an amended motion and the Magistrate Judge withdrew the Report and ordered an answer and a reply (Doc. No. 78). Those have now been filed (Doc. Nos. 87, 88, 89). Tincher has also filed a Motion for Evidentiary Hearing and Appointment of Counsel (Doc. No. 91).

In permitting the Amended Motion, the Court ordered Tincher to file a pleading "setting forth all his claims not later than August 15 [2002]. He must include a specific statement of which claims he contends Ms. Finucane [appellate counsel] was ineffective for failure to include [in the appeal]." (Order, Doc. No. 78, PageID 486-487.) In the Amended Motion, Tincher incorporates the claims from the original Motion and pleads the following additional ground for relief:

Ground Seven: Ineffective Assistance of Appellate Counsel

Sub-claim One: Failure to assert that Tincher was not legally culpable because he did not willfully engage "in the business of dealing firearms due to the scienter requirement."

Sub-claim Two: Failure to assert that the trial court violated Fed. R. Crm. P. 11 when it "failed to insure that Tincher made his plea knowingly and intelligently regarding Count Six of the Indictment."

Sub-claim Three: Failure to include the double-counting issue on appeal.

Sub-claim Four: Failure to raise vindictive prosecution and sentencing entrapment.

(Amended Motion, Doc. No. 79, PageID 490-94, relating to Grounds One, Four, Five, and Six in the original Motion.) The Government's Response (Doc. No. 87) and Tincher's Reply (Doc. No. 88) address the issues in the Amended Motion. Tincher has also filed a Motion for Evidentiary Hearing and Appointment of Counsel (Doc. No. 91).

Procedural History

Mr. Tincher was indicted by the grand jury for this District on March 4, 2008 (Doc. No. 1), and charged in six counts: distribution of oxycodone on December 19, 2007 (Count 1), distribution of cocaine on the same date (Count 2), distribution of oxycodone on January 4, 2008 (Count 3), possessing a firearm (a Wesson .41 magnum CTG) on January 4, 2008, after having been convicted of a felony (Count 4), possessing a firearm (a Wesson .357 magnum revolver) on January 8, 2008, after having been convicted of a felony (Count 5), and willfully engaging in the business of dealing in firearms without a license in January, 2008 (Count 6).

On August 26, 2008, the grand jury returned a superseding indictment (Doc. No. 24), adding charges of attempting to possess in excess of 500 grams of cocaine (Count 7), and using and carrying a firearm during and in relation to a drug trafficking crime (Count 8); the two new charges are alleged to have occurred in February, 2007.

On February 26, 2009, Mr. Tincher entered into a Plea Agreement with the United States under which he agreed to plead guilty to Counts One, Two, Three, Five, and Six of theSuperseding Indictment (Doc. No. 47). On the same date, he in fact pled guilty as agreed after a plea colloquy in open court (Minute Entry, Doc. No. 46). After a presentence investigation, Mr. Tincher was sentenced to 108 months imprisonment on each count of conviction except Count 6, on which he received a 60 month sentence, with all sentences running concurrently (Doc. Nos. 57, 59). He appealed, raising claims that the sentence was procedurally and substantively unreasonable. The Court of Appeals affirmed on June 13, 2011. United States v. Tincher, Case No. 09-4189, 425 Fed. Appx. 507, 2011 U.S. App. LEXIS 12014 (copy at Doc. No. 72). The original Motion to Vacate followed on June 28, 2102, within the statute of limitations.

Tincher focuses the arguments in his original and amended § 2255 Motions on Count 6, willfully engaging in the business of dealing in firearms without a license. He raises no claims whatsoever regarding his conviction on three counts of drug trafficking (Counts 1, 2, and 3) and one count of being a convicted felon in possession of a firearm (Count 5). Thus if the Court were to grant the relief sought, only the 60-month sentence on Count Six would be affected; Tincher would remain incarcerated for 108 months on each of the other five counts of conviction.

Tincher seems to believe that the effect of granting his Motion would be resentencing on all counts of conviction, but that is not so. If the conviction on Ground 6 were vacated, Tincher would be subject to trial on that charge and on the dismissed counts of the Superseding Indictment, to wit, Counts 4, 7, and 8. If convicted, he would be subject to sentencing on all three of those counts, even if he were acquitted on the selling firearms count and the Court would be under no duty to run those new sentences concurrent with the present sentence. Finally, because he would have successfully set aside his guilty plea to Count 6, the provisions of the Plea Agreement would permit the United States Attorney to read to the jury all of the admissionshe made in the plea colloquy and in any negotiations leading up to the Plea Agreement (Doc. No. 47, ¶ 5(d)). In other words, Tincher cannot have the benefit of the Plea Agreement - dismissal of the three other counts - while repudiating part of his obligation under the Plea Agreement - to plead guilty to Count 6.

Generally Applicable Law

A motion to vacate under § 2255 is not a substitute for direct appeal. United States v. Duhart, 511 F.2d 7 (6th Cir. 1975); DiPiazza v. United States, 471 F.2d 719 (6th Cir. 1973). Absent manifest injustice or special circumstances such as a change in the law, § 2255 motions will be dismissed summarily if they raise claims that were or might have been asserted on direct review. Hertz & Liebman, Federal Habeas Corpus Practice and Procedure 5th, §41.7(e)(2005), citing, Reed v. Farley, 512 U.S. 339, 358 (1994); Withrow v. Williams, 507 U.S. 680, 721 (1993); Davis v. United States, 417 U.S. 333, 342 (1974); Kaufman v. United States, 394 U.S. 217, 227 n. 8 (1969); Yackle, POSTCONVICTION REMEDIES, §108 (1981), citing Mars v. United States, 615 F.2d 704 (6th Cir. 1980); Mathews v. United States, 11 F.3d 583 (6th Cir. 1993).

Tincher attacks a conviction arising out of his negotiated plea of guilty. A plea of guilty or no contest is valid if it is entered voluntarily and intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151 (6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made depends upon the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S. 458, 463 (1938); Garcia v. Johnson,991 F.2d 324, 326 (6th Cir. 1993).

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e. g. bribes).

Brady v. United States, 397 U.S. 742, 755 (1970).

By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime. United States v. Broce, 488 U.S. 563, 570 (1989); McCarthy v. United States, 394 U.S. 459, 466 (1969). In fact in this case Tincher said he was pleading guilty to the five charges because he felt he was guilty of them (Plea Tr., Doc. No. 69, PageID 313). Where a district court has scrupulously followed the required procedure under Fed. R. Crim. P. 11, "the defendant is bound by his statements in response to that court's inquiry." Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986), quoting Moore v. Estelle, 526 F.2d 690 (5th Cir. 1976). A guilty plea bars a defendant from raising in federal habeas corpus such claims as the defendant's right to trial and the right to test the state's case against him. McMann v. Richardson, 397 U.S. 759 (1970); McCarthy, 394 U.S. at 466. "[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge...