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United States v. Rogers

United States District Court, Sixth Circuit

May 1, 2013

UNITED STATES OF AMERICA Plaintiff,
v.
CHRISTOPHER GUY ROGERS, Defendant. Civil Action No. 13-7277-KSF-JGW.

REPORT AND RECOMMENDATION

J. GREGORY WEHRMAN, Magistrate Judge.

On April 22, 2013, defendant Christopher Guy Rogers filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his federal conviction and sentence. Doc. 84. Having conducted a preliminary review of the motion, the Court concludes that defendant's claims are foreclosed by the waiver provision contained in his plea agreement and that the § 2255 motion was not timely filed. Accordingly, the motion should be denied without the United States being required to file a response.

I. Factual and Procedural History

Pursuant to the plea agreement in this case, defendant admitted the following relevant facts:

On June 27, 2008 Rogers and Jamel White tried to rob drug dealers in Madison County[, Kentucky] of drugs and[/]or drug money. White and Rogers each had a firearm. Rogers and White went there for drugs and drug money however they could not find any so according to White, they stole Abram's cell phone and $10.00. According to White, as they were leaving White shot Abrams in the buttocks. Rogers does not deny being involved in this robbery, however due to his use of drugs that day, claims he does not remember the robbery. Rogers has reviewed the evidence including the proposed testimony of Jamel White and telephone records and believes the evidence is sufficient to convict him at trial. Rogers was arrested on September 7, 2008 several weeks after he and Adrian Greer robbed the Florence Market in Lexington[, Kentucky] on July 18, 2008. Rogers brandished a firearm during the robbery and Greer brandished a machete. The owner of the store knew Rogers for years and recognized Rogers.

Doc. 34, p. 2.

On November 24, 2009, pursuant to a plea agreement, defendant pleaded guilty to two counts of interfering with commerce by threats or violence and aiding and abetting same, one count of carrying a firearm in drug and in relation to a crime of violence and aiding and abetting same and one count of carrying a firearm in drug and in relation to a crime of violence. Doc. 33. Section eleven of the plea agreement, which defendant signed, provides that "[t]he Defendant waives the right to appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of restitution, however the Defendant may appeal his sentence if it is greater than 20 years." Doc. 33, p. 6.[1]

During defendant's rearraignment, the United States orally summarized section eleven of the plea agreement by stating that defendant "has waived his right to appeal and the right to attack collaterally his guilty plea and sentence, including any order of restitution, and in this case there could be some restitution. However, he has reserved [the right] to appeal this sentence if it is greater than 20 years." Doc. 36, p. 6. Following the oral summary by the United States, Judge Forester asked defendant if he understood that in section eleven of the plea agreement that defendant had "waived your right to appeal and your right to collaterally attack your guilty plea, conviction, and sentence, including any order of restitution." Id. at p. 8. Defendant responded "[y]es, sir." Id. at p. 9. Defendant also responded "[y]es, sir" when Judge Forester asked defendant if he (defendant) believed that the United States would be able to prove the facts contained in the plea agreement which had just been orally summarized by the United States. Id. at p. 15. At the close of the rearraignment Judge Forester accepted and approved the plea agreement. Id. at p. 18.

After delays engendered by defendant's motion to withdraw his guilty plea and subsequent competency evaluation, [2] in September 2010 defendant was sentenced to a total of 360 months' imprisonment. Doc. 62.[3] In March 2011 defendant filed a pro se notice of appeal [Doc. 64] but the Sixth Circuit dismissed the appeal as having been untimely filed in April 2011. Doc. 67.[4]

In January 2012 petitioner's previously appointed counsel filed a motion for appointment of post-conviction counsel. Doc. 73. The motion stated that the officer who investigated the Florence Avenue robbery, William Persley, had been "suspended without pay for eighty (80) hours for Unsatisfactory Performance and [Dis]Honesty in another case.... In the other case, part for [sic] the reason for the suspension of Detective Persley was as follows: (1) he failed to accurately describe and formally document his actions regarding a lineup presentation to back [sic] tellers and (2) his sworn oral testimony during a preliminary hearing on 3/13/2009 differed significantly from his written documentation in areas material to the probable cause for the search warrant and arrest warrant obtained.... In this case, Detective Persley showed a photo lineup to the owner of the Florence Avenue market after it was robbed. This Defendant is now concerned as to whether Detective Persley did something inappropriate in this case...." Doc. 73, p. 1-2.

In March 2012 Judge Forester denied the motion for appointment of post-conviction counsel. Doc. 75. Judge Forester noted that the original and amended plea agreements contained language that the owner of the store in question knew and recognized defendant and that defendant's accomplice had told the police that defendant had helped rob the store and had used a firearm during that robbery. Id. at p. 1-2. Accordingly, Judge Forester held that there was "no question" of defendant's identity in this case. Id. at p. 1. In addition, Judge Forester reminded defendant that he had waived his right to collaterally attack his convictions and that the motion for appointment of post-conviction counsel was encompassed within that waiver. Id. at p. 3.

In May 2012 defendant filed a pro se motion for extension of time to file a motion pursuant to "60.02." Doc. 76.[5] In the motion defendant asks the Court to extend the time for him to file a post-conviction motion because he has "a state case that is going on that involes [sic] a detective that has been charge[d] administratively by the Lexington Division of Police... [w]ith a violation of honesty and with unsatisfactory performance. I would like to find out the out come [sic] of this case, [sic] before I pursue filing a 60.02 on my federal case. Dealing with the same issue. [sic] I did not know the detective was or could of [sic] been an issue in any of my cases. I know my case situation would of [sic] been a different outcome." Id.

In September 2012, Judge Forester denied the motion for extension of time. Doc. 79. Judge Forester held that the motion "is closely related to a motion filed by Rogers' former counsel for an order of post[-]conviction CJA Appointment... because a police officer, who investigated the robbery in which Rogers was involved, engaged in improper conduct in another case with regard to a photo lineup." Id. at p. 1. Judge Forester then concluded that "[r]egardless of any new information that might be disclosed, Rogers waived his right to collaterally attack his conviction and received a reduced sentence as part of the bargain. Accordingly, any motion for an extension of time to collaterally attack his conviction must be denied." Id.

In January 2013 defendant filed a pro se motion to be provided with a copy of the transcript from the grand jury proceedings which led to his indictment. Doc. 81. In February 2013, Judge Forester denied the motion because defendant had "failed to show any compelling necessity that would be sufficient to ...


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