Welch v. United States

• Docket Number: 4:20-CV-1045 RLW
• Decision Date: 06 July 2023
• Parties: JERMAYNE WELCH, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

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JERMAYNE WELCH, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 4:20-CV-1045 RLW

United States District Court, E.D. Missouri, Eastern Division

July 6, 2023

MEMORANDUM AND ORDER

RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

This matter is before the Court on Movant Jermayne Welch's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 1). The United States filed a Response in opposition (ECF No. 5) and Movant filed a Reply (ECF No. 7). The Court ordered the United States to file a further response to address Movant's claims of ineffective assistance of counsel and Brady/Giglio prosecutorial misconduct, and it did so on April 20, 2023 (ECF No. 9). Movant was granted until May 11, 2023 to file a reply but he did not file one. This matter is now fully briefed and ready for decision. For the following reasons, Movant's § 2255 Motion will be denied in all respects without an evidentiary hearing.

I. Procedural Background

On August 16, 2017, a federal grand jury in the Eastern District of Missouri charged Jermayne Welch in an indictment with possessing a firearm after having been convicted previously of a felony crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (“Count One”). See United States v Jermayne Welch, Case No. 4:17-CR-374 RLW (“Criminal Case”) (ECF No. 1).^[1] On November 3, 2017, the District Court appointed the Office of the Federal Public Defender for the Eastern District of Missouri to represent Movant. (ECF No. 6). Assistant Federal Public Defender William Marsh entered an appearance for Movant (ECF No. 12). Mr. Marsh filed a Request for Discovery on behalf of Movant (ECF No. 13) and a Motion For Additional Time to Obtain and Review Discovery Materials and to Determine Whether, and/or What Pretrial Motions are to be Filed (ECF No. 16). Subsequently, Mr. Marsh filed four motions to extent the pretrial motions deadline (ECF Nos. 20, 22, 24, 26). On March 20, 2018, Movant filed a written waiver of his right to file pretrial motions (ECF No. 28). On March 29, 2018, Movant appeared before U.S. Magistrate Judge Patricia A. Cohen, was placed under oath, and waived filing of pretrial motions. Judge Cohen accepted the waiver and found it was made voluntarily, knowingly, and with full knowledge of rights regarding pretrial motions.

The case was set for jury trial on May 7, 2018 (ECF No. 30). Movant filed a motion to continue the trial setting for sixty days and a waiver of his Speedy Trial Act rights (ECF Nos. 31, 32) and the Court granted the motion and reset the trial to July 16, 2018 (ECF No. 33). On July 10, 2018, Movant appeared before the Court and pleaded guilty to Count One of the Indictment (ECF No. 35) pursuant to a written Guilty Plea Agreement signed by the parties (ECF No. 36).

The Indictment charged as follows:

COUNT ONE

The Grand Jury charges that:

On or about June 9, 2017, in the City of St. Louis, within the Eastern District of Missouri,

JERMAYNE WELCH,

the Defendant herein, having been convicted previously in a court of law of one or more crimes punishable by a term of imprisonment exceeding one year, did knowingly and intentionally possess a firearm which previously traveled in interstate or foreign commerce during or prior to being in the Defendant's possession.

In violation of Title 18, United States Code, Section 922(g)(1).

(ECF Nos. 1, 2).

Pursuant to the Guilty Plea Agreement (the “Agreement”) between the parties, Movant agreed to plead guilty to Count One of the indictment in exchange for the United States' agreement “that no further federal prosecution would be brought in this District relative to [Welch's] violation of federal law, known to the United States at this time, arising out of the events set forth in the indictment.” (ECF No. 36, ¶ 2a.)

The Agreement set forth, among other things, each of the elements of the offense to which Movant was pleading guilty, the statutory penalties, anticipated guidelines calculations, and the following statement of facts, which Movant agreed the United States could prove “beyond a reasonable doubt if the case were to go to trial” and “may be considered as relevant conduct pursuant to [U.S.S.G.] Section 1B1.3:”

On June 9, 2017, while patrolling the 4300 block of Kennerly, located in the City of St. Louis, Missouri, within the Eastern District of Missouri, St. Louis Metropolitan Police officers observed Defendant walking in the middle of the street clenching something in his right hand. Officers drove next to Defendant and asked him to move onto the sidewalk. Defendant appeared startled, dropped a clear plastic baggie containing .16 grams of methadone, 2.22 grams of heroin and .84 grams of cocaine, and ran. The officers chased Defendant giving multiple commands for the defendant to stop running. The defendant failed to comply. Officers tased Defendant causing him to fall and drop the crown royal bag in his hand. Inside the crown royal bag, officers observed a 9-millimeter Smith and Wesson semi-automatic pistol loaded with eight rounds of ammunition.

An examination of the 9-millimeter Smith and Wesson handgun, bearing serial number HUT1039, was conducted. It was determined that each firearm was manufactured outside the State of Missouri, and, therefore, had been transported across state lines and in interstate commerce prior to or during Defendant's possession of it. Each handgun is a “firearm” as defined under federal law. Prior to June 9, 2017, Defendant was convicted of at least one felony crime punishable by imprisonment for a term exceeding one year under the laws of the State of Missouri. The aforementioned controlled substances were submitted to and analyzed by an expert criminalist with the SLMPD Crime Laboratory. The controlled substances were confirmed to be methadone, a Schedule II controlled substance; heroin a Schedule I controlled substance, and cocaine base a Schedule II controlled substance.

(ECF No. 36 at 3-4).

Pursuant to the Agreement, Movant and the Government each retained the right to appeal all sentencing issues. (Id. ¶ 7(a)(2)). The parties waived all rights to appeal all non-jurisdictional, non-sentencing issues, including but not limited to any issues relating to pretrial motions, discovery, and the guilty plea. (Id. ¶ 7(a)(1). Movant agreed to “waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.” (Id. ¶ 7(b)).

Movant, who was under oath, confirmed that he had had enough time to discuss his case with Mr. Marsh, was satisfied with the representation he received from defense counsel, and there was nothing Movant felt that counsel should have done but did not do in representing him. (Plea Tr. 4:23-5:6.) The Court asked Movant questions about the Agreement, and Movant responded that he had signed it, read and discussed it with Mr. Marsh before he signed it, everything in it was true to the best of his knowledge and understanding, and there was nothing in the Agreement he disagreed with or did not understand. (Id. 7:3-22).

The Court reviewed the elements of the charge and Movant stated he understood the elements of the charges against him. (Id. 8:14-9:1) The Court asked the Government's attorney to state what facts the Government would prove beyond a reasonable doubt if the case were to go to trial. The Assistant U.S. Attorney recited the facts, essentially as set forth in the Agreement and quoted above. (Id. 9:9-10:15). When she concluded, the Court asked:

Q Mr. Welch, did you go over those facts carefully with Mr. Marsh?

A Yes, Your Honor.

Q Is there any disagreement about them?

A No, sir.

Q Did you do the things that were just stated?

A Yes, Your Honor.

(Id. 10:16-23.)

The Court directed Movant's attention to the Statutory Penalties portion of the Agreement, which stated

The Defendant fully understands that the maximum possible penalty provided by law for the crime to which the Defendant is pleading "guilty" is imprisonment of not more than ten years, a fine of not more than $250,000, or both such imprisonment and fine. The Court may also impose a period of supervised release of not more than three years.

In certain situations under Title 18, United States Code, Section 924(e), Armed Career Criminal, Defendant may be subject to a mandatory minimum sentence of imprisonment of 15 years and a maximum of life, a fine of not more than $250,000, or both such imprisonment and fine, and a term of supervised release of not more than five years. The Defendant is pleading guilty with full knowledge of these possibilities, has discussed these possibilities with counsel and will not be able to withdraw the "guilty" plea if the Court determines the foregoing statute applies to the Defendant's sentence.

(Id. 10:23-11:15.) The Court asked, “Do you understand, Mr. Welch, these are the statutory penalties you're exposed to for this charge?” Movant responded, “Yes, Your Honor.” (Id. 11:1618.)

The Court then discussed the sentencing guidelines generally, and explained that the guidelines were advisory such that a judge does not always have to sentence a defendant within their recommendation. (Id. 11:19-12:9). The Court asked defense counsel to outline the parties' agreement as to the sentencing guidelines:

MR. MARSH: Yes, Your Honor. The parties agree that the Base Offense Level is going to be found in Section 2K2.1(a) of the Guidelines. And based on the nature of that guideline, the offense level will depend, among other things, on the nature of the Defendant's criminal history and the characteristics of the firearm. The Base

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