Opinion
CRIMINAL ACTION NO. 00-119
July 16, 2002
Before the Court is a Motion for post conviction relief filed by Giles McGee. Having considered the record, the law, the motion submitted by the Petitioner, and the United States' opposition to the motion, the Court hereby DENIES the Petitioner's request.
ORDER AND REASONS
I. Background
Petitioner Giles McGee is a prisoner currently incarcerated at the Federal Correctional Institutiion (FCI) at El Reno, Oklahoma. McGee (hereafter "petitioner") was indicted on April 25, 2000, for being a convicted felon unlawfully in possession of a firearm under Title 18 U.S.C. § 922(g)(1) and 924(a)(2). Petitioner entered a plea of guilty pursuant to a plea agreement on June 12, 2000.
During the re-arraignment, the district court thoroughly questioned petitioner to determine if he understood the offense he was pleading guilty to, any rights he was waving by entering such a plea. whether his plea was voluntarily, and if there was a factual basis to convict him of the crime against him. The district court found that the plea was knowledgeable, voluntary and had a factual basis that contained all elements of the crime charged to petitioner. The district court accepted the guilty plea, plea agreement, and written factual basis signed by petitioner and his counsel.
On October 18, 2000, the district court sentenced petitioner to a term of 84 months, the minimum suggested by the applicable Guidelines. Petitioner did not submit a timely Notice of Appeal and did not proceed with a direct appeal in this matter. Petitioner has filed a timely motion for post conviction relief pursuant to 28 U.S.C. § 2255, to which the Government filed an opposition.
LEGAL ANALYSIS
The petitioner presents one issue in this instant motion: whether his counsel was ineffective, thereby causing his plea agreement to be entered into involuntarily and unknowingly.
I. Procedural Bar
The petitioner is procedurally barred from appealing his sentence as per his plea agreement. (Ex "A." p. 2.) The petitioner reserved his right to appeal only in the case of "any punishment imposed in excess of the statutory maximum" and "any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court." (Ex. "A," p. 2.) Neither form of punishment is the case here. The petitioner has therefore waived his right to bring this habeas corpus motion.
A plea agreement, if informed and voluntary, is an effective bar to appeal. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The Fifth Circuit regards a defendant's signature on a plea agreement as prima facie proof of the validity of the plea. Rupert v. Johnson, 79 F. Supp.2d 680, 704 (W.D. Texas 1999). The defendant has not presented any evidence suggesting that his agreement was unknown or involuntary. The re-arraignment transcript shows that the petitioner understood his plea agreement. Nothing in the record indicates that the defendant was confused by Judge Sears questions or that he failed to comprehend the waiver of appellate rights.
II. Ineffective Counsel
Sixth Amendment claims of ineffective assistance of counsel, however, are not subject to the procedural bar in all cases. US. v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). In Henderson, the court held that the dismissal of an appeal based upon a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the waiver was tainted by ineffective assistance of counsel. This holding was limited by the court in U.S. v. Price, 95 F.3d 364, 369 (5th Cir. 1996). Under Price, the defendant must have made a motion to either withdraw his plea or invalidate a portion of it in order to nullify his earlier waiver.
In the instant case, petitioner does not satisfy the Price criteria. The defendant did not bring a motion to invalidate or withdraw his guilty plea. He is barred, therefore, from this appeal.
III. Voluntary and Knowledgeable
Even if the petitioner's motion was not barred by his plea agreement, he would be unable to show that his plea was involuntary due to ineffective assistance of counsel. At the rearraingment. the petitioner never indicated that he was disappointed with his counsel or that he failed to understand the plea agreement. In fact, he admitted guilt to the charges against him, stated that he plead guilty of his own free will, and stated that he was satisfied with the representation of counsel. Judge Sear questioned petitioner as such: "Have you been influenced, induced or persuaded in any manner to plead guilty because of threats made by anyone ?" The defendant answered, "no sir." Judge Sear continued, "has anyone, including your attorney, Mr. Craft., told you what sentence you might receive if I accept your plea of guilty ?" Again, the petitioner replied "no sir." Judge Sear then inquired whether petitioner was satisfied with counsel, saying: "Are you entirely satisfied with the advice and services that have been rendered by Mr. Craft. The petitioner responded, "yes sir."
In order to contradict his representations at the re-arraignment hearing and demonstrate ineffective assistance of counsel, the petitioner must satisfy the two-prong test put forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984). The Strickland test requires the petitioner to show that 1) his counsel's performance fell below an objective standard of reasonable competence, and 2) the petitioner was prejudiced by his counsel's deficient performance.
The petitioner claims that his counsel "led him to believe" that he would receive a lesser sentence by pleading guilty. Not only has petitioner failed to show any evidence to support his claim, he, in fact, received the minimum sentence allowed under the Guidelines. In order to be entitled to an evidentiary hearing on the issue of the voluntariness of a guilty plea based on alleged promises inconsistent with the habeas petitioner's own representations in open court, a petitioner must present the court with "independent indicia of the likely merit of his allegations," Rupert v. Johnson, 79 F. Supp.2d 680, 704 (5th Cir. 1999), such as specific factual allegations supported by the affidavit of a reliable third party. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). In Davis, the petitioner's allegations gave the date, time, and witnesses to his attorney's improper promise of a shorter sentence. Davis at 894. In the instant case, however, the petitioner makes broad generalizations. He does not allege that his attorney promised him a lesser sentence, just that he was "led to believe" he would receive it. A petitioner's "mere understanding" that he would receive a lesser sentence is not enough to support an evidentiary hearing. DeVille v. Whitey, 21 F.3d 654, 658 (5th Cir. 1994).
The record does not reflect that the petitioner's counsel was ineffective nor that the petitioner was prejudiced in any way. The re-arraignment transcript shows that the petitioner's counsel did not fall below the objective standard of reasonable competence. As a result, even if the petitioner's motion survived the procedural bar, he is unable to show that his agreement to the plea was unknowing and involuntary.
CONCLUSION
The Court, having considered the record, the applicable law, the motion by petitioner and the opposition to such motion by the Government, hereby DENIES the Motion for Post-Conviction Relief, pursuant to 28 U.S.C. § 2255.
Accordingly,
IT IS ORDERED that the petition for issuance of a Writ of Habeas Corpus be DISMISSED WITHOUT PREJUDICE.