United States

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No. 7:10-CR-11-1H (E.D.N.C. Jul. 23, 2018)

No. 7:10-CR-11-1H No. 7:15-CV-133-H




This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate filed on June 12, 2015 [DE #123]. The Government has moved to dismiss [DE #128] for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6), and Petitioner has responded [DE #132]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons stated herein, it is recommended that the Government's motion be granted and Petitioner's claims be dismissed for failure to state a claim.


On December 10, 2010, Petitioner, with counsel, pleaded not guilty to all counts of a seven-count indictment [DE #47]. The jury trial commenced on February 28, 2011, and on March 2, 2011, the jury returned a verdict of guilty on all seven counts of the indictment. Petitioner was initially sentenced on June 15, 2011; he was resentenced on May 8, 2012, to a total imprisonment term of 384 months after his sentence was vacated in part on direct appeal [DE #104]. On June 12, 2015, Petitioner filed the instant Motion to Vacate, alleging that his trial attorney was constitutionally ineffective in four ways. On January 22, 2018, the court granted the Government's motion to dismiss regarding two of Petitioner's ineffective assistance claims and referred the matter to the undersigned for an evidentiary hearing and memorandum and recommendation regarding Petitioner's remaining ineffective assistance claims. Specifically, Petitioner's remaining ineffective assistance claims involve (i) whether trial counsel advised Petitioner he would be unable to receive a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 if he proceeded to trial and (ii) whether trial counsel advised Petitioner he could enter a guilty plea without a plea agreement.


At the evidentiary hearing, Petitioner testified in support of his motion and presented no additional evidence. The Government called Petitioner's two trial attorneys, Mr. James Walen and Ms. Sue Berry, as witnesses and introduced documentary evidence through Mr. Walen. Based on the testimony and documentary evidence received at the evidentiary hearing, and based on the records in the docket, the undersigned finds the following as facts.

Attorney Berry testified via telephone. However, she had no recollection of the case aside from Petitioner's name.

Attorney James M. Walen, now retired, practiced law in North Carolina for twenty-nine-and-a-half years, beginning in 1987. He practiced criminal defense in state and federal court. For the last ten years of his practice, he practiced almost exclusively in federal court. For approximately five to six years of his career, he practiced almost exclusively as a capital defense attorney.

In January 2010, the Federal Public Defender assigned Attorney Sue Berry to represent Petitioner in the above-captioned criminal matter. At some point during this representation, Special Assistant United States Attorney (SAUSA) Timothy Severo made a plea offer to Petitioner, which was communicated to Petitioner and which Petitioner rejected. (Hr'g Tr. [DE #149] at 79-80.) At Petitioner's request, Attorney Berry moved to withdraw and the court granted the motion [DE ##39, 42]. The Federal Public Defender then assigned Attorney Walen to represent Petitioner.

At his arraignment, Petitioner was placed under oath and answered the court's questions during the Rule 11 colloquy. (Arr. Tr. [DE #127] at 8-22.) Petitioner acknowledged that Attorney Walen had answered all of his questions about his charges; that he understood the maximum penalties he could face if found guilty of any or all of the charges against him; and that he was satisfied with Attorney Walen's representation. (Id.) Petitioner pleaded not guilty to all seven counts of the indictment. (Id. at 19-21.)

Attorney Walen testified that it was his habit and practice to review with each client three options at arraignment: pleading guilty pursuant to a plea agreement with the Government, pleading guilty without a plea agreement, or pleading not guilty and requesting a trial. (Hr'g Tr. 80.) It was also his habit and practice to provide a client with his professional estimation regarding each of the aforementioned plea options. (Id.) Regarding his federal court practice, Attorney Walen testified that he would, based on his knowledge and experience, explain to a client his estimation of what the sentencing guidelines range would be for each type of plea. In calculating this guidelines estimate, Attorney Walen testified that he would take into consideration the likelihood that a client would receive any offense-level reduction for acceptance of responsibility. (Id. at 80-81.) Attorney Walen advised his clients that they could receive the acceptance-of-responsibility reduction so long as a guilty plea was entered, regardless of whether the guilty plea was entered pursuant to a plea agreement or without such an agreement. (Id. at 82.)

Regarding Petitioner's case in particular, Attorney Walen recollected that he met with Petitioner a "number of times" after being appointed and had "some extensive talks" with Petitioner about his charges. (Hr'g Tr. 79-80.) Attorney Walen testified that he negotiated with SAUSA Severo for a renewed plea agreement offer, which SAUSA Severo extended. (Hr'g Tr. at 79-80, 83; Gov't Ex. 1.) Attorney Walen testified that he reviewed this plea offer "line by line" with Petitioner. (Hr'g Tr. at 83.) Regarding Petitioner's plea options, Attorney Walen testified that he specifically remembered reviewing these options with Petitioner because Attorney Berry had advised him that Petitioner was "adamant about going to trial." (Hr'g Tr. at 79.) Ultimately, Petitioner entered his not guilty plea against the advice of Attorney Walen. (Hr'g Tr. at 83-88.)

Petitioner testified that neither Attorney Berry nor Attorney Walen ever reviewed a proposed plea agreement with him. (Hr'g Tr. at 23, 30, 69.) Petitioner stated that, at the time Attorney Walen was appointed to represent him, he was willing to plead guilty to four counts of the indictment, but would not plead guilty to the conspiracy count, the count alleging possession of a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C. § 924(c), or the money laundering count. (Hr'g Tr. at 28.) Attorney Walen also testified that this was, roughly, Petitioner's position during the course of his representation. (Hr'g Tr. at 83-84, 86-87.) Petitioner also testified that neither of his attorneys ever advised him about the maximum punishment he could face if found guilty of all seven counts of the indictment. (Hr'g Tr. at 32.)

The evidence regarding the discussions between Petitioner and Attorney Walen being controverted, the court must make a factual finding as to whether Attorney Walen failed to discuss the various plea options with Petitioner, specifically including the possibility of pleading guilty without a plea agreement and the likelihood that no sentencing guidelines reduction for acceptance of responsibility would be available if Petitioner proceeded to trial. In making this finding, the court must assess the credibility of the witnesses, considering such factors as the variations in their demeanor and tone of voice, as well as the witnesses' motives, the level of detail in their testimony, and the existence or lack thereof of any documents or objective evidence corroborating or contradicting the testimony. Rahman v. United States, No. 7:08-CR-126-D, 2013 WL 5222160, at *5 (E.D.N.C. Aug. 27, 2013) (citing Supreme Court, Third Circuit, and Fourth Circuit case law).

Having had the opportunity to observe the witnesses and listen to their testimony, the undersigned credits Attorney Walen's testimony that his representation of Petitioner conformed with his normal practice in criminal defense cases of reviewing proposed plea agreements with clients, calculating estimates of various sentencing guidelines ranges based on plea type, and reviewing a client's plea options, namely, pleading guilty with an agreement, pleading guilty without an agreement, and pleading not guilty. The undersigned does not credit Petitioner's testimony that neither of his attorneys ever reviewed proposed plea agreements with him and that Attorney Walen did not review the various plea options relevant to his case.

Attorney Walen's practice of discussing various plea options and potential sentencing outcomes is consistent with that of an experienced criminal defense attorney. Furthermore, the Government introduced into evidence a proposed written plea agreement that SAUSA Severo extended after Attorney Walen undertook representation of Petitioner. (Gov't Ex. 1.) It strains credulity to think that Attorney Walen would have negotiated for a renewed plea agreement offer, and then failed to review it with Petitioner. Moreover, Petitioner was advised at his Rule 11 hearing of the charges against him and the maximum penalties that he faced if convicted of those offenses. Petitioner stated under oath that he understood the charges against him and the potential consequences if found guilty. He also confirmed that Attorney Walen had answered all of his questions concerning his case and his plea and that he was satisfied with the representation provided by Attorney Walen. That further undermines his testimony about the representation and advice provided to him by Attorney Walen. See United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).


To establish ineffective assistance of counsel, a petitioner must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The reasonableness of counsel's performance must be judged according to the specific facts of the case at the time of counsel's conduct. Id. at 690. Additionally, a petitioner must show he was prejudiced by his attorney's ineffectiveness. Id. at 694. There is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance, and the petitioner bears the burden of demonstrating that counsel's assistance was neither reasonable nor the product of sound strategy. Strickland, 466 U.S. at 689. This presumption is "even stronger" when evaluating the conduct of an experienced trial attorney. Chandler v. United States, 218 F.3d 1305, 1316 (4th Cir. 2000). And where a defendant claims counsel was ineffective in rejecting or allowing a plea offer to lapse, he "must demonstrate a reasonable probability [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel." Missouri v. Frye, 566 U.S. 134, 147 (2012).

Here, Petitioner alleges Attorney Walen was ineffective for failing to inform him that he could plead guilty without a plea agreement, a type of guilty plea commonly known as an "open plea." See United States v. Fitzgerald, 830 F.3d 107, 108 (4th Cir. 2016) (defining "open plea"). Relatedly, Petitioner alleges that his trial attorney was ineffective for failing to advise him that he could, in all practical likelihood, still receive a three-level reduction in his offense-level calculation under the federal sentencing guidelines for acceptance of responsibility if he entered an open plea to all of the charges against him.

This type of guilty plea is also commonly referred to as a "straight plea" or "pleading straight up." See Murphy v. United States, Nos. 5:13-CV-32-FL & 5:11-CR-86-1FL, 2013 WL 3288312, at *4 (E.D.N.C. June 28, 2013). --------

Regarding the deficiency prong of the Strickland test, Petitioner has failed to carry his burden to show that Attorney Walen's performance was deficient. Attorney Walen met with Petitioner a number of times, negotiated for a renewed plea agreement from the Government after Petitioner had previously rejected such an agreement, and reviewed this agreement with Petitioner. Attorney Walen's normal habit and practice, developed over the course of a nearly thirty-year career spent exclusively defending persons accused of crimes, was to discuss with clients their three core plea options: guilty plea with an agreement, guilty plea without an agreement, or a plea of not guilty and proceed to trial. The evidence establishes that he employed that normal habit and practice in Petitioner's case. Furthermore, Attorney Walen gave Petitioner his estimation of potential outcomes for each of those latter options, including a sentencing guidelines estimate which necessarily addressed the acceptance of responsibility reduction. This representation, specifically the advice and counsel regarding plea options and the associated guidelines estimates, was not unreasonable.

Petitioner has presented insufficient evidence to overcome the presumption of reasonableness that attaches to Attorney Walen's conduct. Petitioner's claim that Attorney Walen failed to properly advise him of his rights and the consequences of his plea is belied by Petitioner's statements at the Rule 11 hearing. The truth of sworn statements made at a Rule 11 hearing is conclusively established, absent extraordinary circumstances. Lemaster, 403 F.3d at 221-22. Therefore, Petitioner has not carried his burden to show that Attorney Walen's representation fell below an objective standard of reasonableness.

Although unnecessary to reach given the foregoing analysis of the deficiency prong of Strickland, Petitioner's claim would also fail under the prejudice prong of Strickland. Petitioner testified that he would still plead not guilty to three of the seven counts of the indictment (Hr'g Tr. at 61-62), thus forcing the Government to prove his guilt at trial. And, of course, a jury found Petitioner guilty beyond a reasonable doubt of the three counts for which he continues to deny responsibility. In light of Petitioner's continued denial of these charges, there is no reasonable probability that Petitioner would have received an acceptance-of-responsibility reduction in his sentencing guidelines offense-level calculation.


For the foregoing reasons, it is RECOMMENDED that the Government's Motion to Dismiss [DE #128] be GRANTED and Petitioner's Motion to Vacate [DE#123] be DISMISSED for failure to state a claim upon which relief can be granted.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. The parties are hereby advised as follows:

You shall have until August 6, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2017). If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

This 23rd day of July 2018.



United States Magistrate Judge

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