Varner v. United States

• Docket Number: Cv. 2:15-cv-02797-MSN-tmp,Cr. 2:13-cr-20173-JTF-1
• Decision Date: 30 June 2023
• Parties: DARRELL JAMES VARNER, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

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DARRELL JAMES VARNER, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. Cv. 2:15-cv-02797-MSN-tmp, Cr. No. 2:13-cr-20173-JTF-1

United States District Court, W.D. Tennessee, Western Division

June 30, 2023

ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255;

ORDER GRANTING A LIMITED CERTIFICATE OF APPEALABILITY;

ORDER CERTIFYING LIMITED APPEAL WOULD BE TAKEN IN GOOD FAITH;

AND

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

MARK S. NORRIS, UNITED STATES DISTRICT JUDGE

Before the Court are the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion,” ECF No. 1) filed by Darrell James Varner, Bureau of Prisons (“BOP”) register number 25922-076; the Response of the United States in Opposition to Defendant's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 7); Varner's Reply to the Response of the United States (ECF No. 9); Varner's Rebuttal Affidavit (ECF No. 10); the parties' briefs addressing United States v. Taylor, 142 S.Ct. 2015 (2022) (ECF Nos. 43 & 44); the evidence presented at the evidentiary hearing on October 6, 2022 (see ECF No. 50); and the parties' post-hearing briefs (ECF Nos. 51 & 55). For the reasons stated below, Varner's § 2255 Motion is DENIED.

I. CRIMINAL CASE NO. 13-20173-JTF-1

On May 21, 2013, a federal grand jury returned an indictment charging Varner with one count of aiding and abetting in the attempt of a robbery affecting commerce (“Hobbs Act robbery”), in violation of 18 U.S.C. §§ 1951 & 2 (Count 1); one count of aiding and abetting Hobbs Act robbery (Count 3), and two counts of the use and carry of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 2 and 4). (See Cr. No. 13-20173, ECF No. 1.) Joseph Lamon Fuller was Varner's co-defendant.

Mary Jermann-Robinson was appointed and represented Varner in the trial court. On September 18, 2013, Varner pled guilty, pursuant to a plea agreement, to the two Hobbs Act robbery counts (Counts 1 and 3) and to the firearm count predicated on attempted Hobbs Act robbery (Count 2). (See ECF No. 51; see also ECF No. 53.) The second firearm count (Count 4) was dismissed at sentencing. (ECF No. 91.) The plea agreement states,

The defendant understands he has been charged with 4 felony counts in the above referenced criminal indictment. Counts 1 and 3 charge violations of Title 18, United States Code, Section 1951, which carries a maximum penalty of 20 years, up to a $250,000 fine, and up to 3 years supervised release. Counts 2 and 4 charge violations of Title 18, United State Code, Section 924(c), which carries a minimum penalty of 5 years and a maximum penalty of life (in the case of a second or subsequent conviction the minimum sentence is 25 years), up to a $250,000 fine and up to 5 years supervised release. There is a $100 dollar special assessment for each felony count of conviction. Additional fees may be imposed to pay for incarceration or supervised release.

(ECF No. 53 at PagelD 60-61.)

Varner agreed that he was “pleading guilty because he is guilty” and that “no threats have been made to induce him to plead guilty.” (Id. at PageID 62.) He acknowledged that there was “no agreement between the parties as to the appropriate length of any term of incarceration.” (Id. at PageID 61.) Varner knowingly and voluntarily waived his right to appeal any sentence imposed by the Court and the manner in which the sentence is determined so long as the sentence is within the specified statutory maximum stated in the plea agreement. (Id. at PageID 6162.) The waiver was “made in exchange for concessions made by the United States.” (Id. at PageID 62.) Varner “knowingly and voluntarily” waived his right to file an action pursuant to Section 2255. (Id.) However, the waiver does not apply to claims of prosecutorial misconduct and/or ineffective assistance of counsel. (Id.)

At the change of plea hearing, the Government summarized the terms of the plea agreement, including:

• the maximum penalties for each count charged in the indictment,

• the counts on which Varner had agreed to plead guilty,

• that there was no agreement as to the appropriate term of imprisonment,

• the dismissal of Count 4,

• the agreement as to acceptance of responsibility under U.S.S.G. § 3E1.1,

• that acceptance of responsibility is a determination for the Court,

• the waivers of the right to appeal and collateral relief under § 2255,

• that Varner was pleading because he was in fact guilty, and

• that no threats induced him to plead guilty.

(ECF No. 75 at PagelD 123-26.)

The Government stated the facts it would be able to prove at trial, as follows:

On March the 13th, 2013, the defendant, and his codefendant, Mr. Fuller, entered a T-Mobile store located at 1425 North Germantown in Memphis, Tennessee at approximately ten a.m.

They were the first customers in the store and the lone clerk had to unlock the door to let them in.

The defendant had on a fur cap with ear flaps, a gray sweatshirt and blueframed sunglasses.

His codefendant, Mr. Fuller, was shorter and heavier than Mr. Varner and was wearing a skull cap, black sunglasses and a black sweatshirt with the writing And, A-n-d, One, O-n-e on the front.

Once they were inside the defendant produced a handgun and demanded cell phones. The clerk advised him that she [di]d not have the key to open the door to the back area where the phones were located.

Mr. Fuller, the codefendant, then took the clerk to the back of the store and tried to open the door to the manager's office in order to get the cell phones but was unsuccessful.

Both defendants then -- or Mr. Fuller and the defendant then left the store without getting any cell phones.

Around 1:30 p.m. of that same day, which was March the 13th, 2013, the codefendant Mr. Fuller entered another T-Mobile store located at 8385 Highway 64, Memphis, Tennessee wearing the same clothing.

He produced a -- he produced a firearm and demanded cell phones. He forced employees to the back of the store . . . and ordered the employees to . . . put cell phones into T-Mobile bags.

He left the store with four T-Mobile bags loaded with cell phones.

Another employee saw the codefendant Fuller get into a [C]hevy Impala on the passenger's side. The employee was able to get the license plate number of the car which was being driven by the defendant Mr. Varner.

The Memphis Police Department saw the car a few minutes later and began to chase the car through Memphis into Arkansas and into Missouri. The Impala was finally stopped after spike strips were deployed by troopers of the Missouri Highway Patrol.

Officers recovered three bags of the stolen cell phones taken from the T-Mobile located at 8385 Highway 64 store. They also recovered the items of clothing worn by the defendant and his codefendant, including the fur hat with the ear flaps and the sweatshirt with A-N-D O-N-E written on the front.

The government would have been able to show that the serial numbers of the cell phones recovered matched the inventory list from the T-Mobile store at 8385 Highway 64.

The evidence would also have included videos from both T-Mobile stores.

In addition the codefendant, Mr. Fuller, was positively identified by employees of the T-Mobile located at 8385 Highway 64 store.

The government would also have been able to show and prove that the cell phones at both T-Mobile stores are produced outside the state of Tennessee.

(Id. at PagelD 126-29.)

Jermann-Robinson did not stipulate to the facts. (Id. at PageID 129.) She agreed that Varner was guilty of the essential elements that he aided and abetted or did otherwise obstruct, delay or affect commerce by robbery on those two occasions. (Id. at 129-30.) Varner did “not necessarily agree with the other facts and those might be appropriate for sentencing.” (Id. at PageID 130.)

The Court established that Varner was competent, that he read the plea agreement, discussed it thoroughly with his lawyer, and understood the terms of the agreement and the consequences of pleading guilty. (Id. at PageID 132-33.) Varner again admitted his guilt. (Id. at PageID 135.) The Court addressed the right to trial; the waiver of Varner's rights to trial, appeal, and collateral review; that he decided to plead guilty freely and voluntarily; and that he was satisfied with his lawyer's representation. (Id. at PageID 135-40, 147-48.) The Court explained the sentencing process, the Presentence Investigation Report (“PSR”) and the Sentencing Guidelines, the statutory range of punishment for the counts to which Varner was pleading guilty, and advised Varner that he could be sentenced within, above, or below the guideline range for these offenses. (Id. at PageID 140-46.)The Court noted that the plea agreement states that there is no agreement about the specific sentence Varner would receive and that the dismissal of Count 4 “is a big factor in your favor.” (Id. at PageID 146.) Varner agreed that the plea agreement was the entire agreement between himself and the Government and that no other promises had been made for the guilty plea. (Id. at PageID 148.)

Varner wrote the Court about Jermann-Robinson, and the Court shared the letter with the parties. (See ECF No. 101 at PagelD 655-56.) Jermann-Robinson then requested a hearing on the record. (Id. at PageID 656.) On January 9, 2014 the Court held a status conference to address Varner's concerns about his counsel and the plea. Jermann-Robinson noted that there is an “issue with his trust in my representation”; that “I don't feel like I coerced anyone” and tried to do a good job, but “there are some issues that I was incorrect about, that I advised him about, and I might understand where he . . . may have lost some...