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White v. United States

United States District Court, Sixth Circuit

May 14, 2013

MICHAEL TROY WHITE Movant/Defendant,
v.
UNITED STATES OF AMERICA Respondent/Plaintiff. Criminal Action No. 1:09CR-00026-TBR.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

H. BRENT BRENNENSTUHL, Magistrate Judge.

BACKGROUND

The movant/defendant, Michael Troy White ("White"), proceeding pro se , filed a motion to vacate, set aside or correct sentence ("motion to vacate"), pursuant to 28 U.S.C. § 2255 (DN 1197, 1206, 1210). The respondent/plaintiff, United States of America ("United States"), has filed an answer (DN 1265). White has filed a reply memorandum and affidavit in support of his motion to vacate (DN 1278).

The District Judge referred this matter to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), for rulings on all non-dispositive motions; for appropriate hearings, if necessary; and for findings of fact and recommendations on any dispositive matter (DN 11216). The undersigned appointed counsel for White (DN 1294) and conducted an evidentiary hearing on May 1, 2013. White and the United States presented evidence through testimony from White and Dennis M. Ritchie. This matter is now ripe for determination.

FINDINGS OF FACT

On June 11, 2009, Magistrate Judge E. Robert Goebel signed a criminal complaint naming White and nine co-defendants: Travis Crew ("Crew"), Amanda Pepper ("Pepper"), Lakeisha Jones ("L. Jones"), Shamonica Jones ("S. Jones"), Joseph "Tiny" Smith ("J. Smith"), Melissa Owens ("M. Owens"), John A. Johnson ("J. Johnson"), Tavana Stone ("T. Stone"), and Justin Dicken ("J. Dicken") (DN 1). The criminal complaint charged White and his co-defendants with drug trafficking in Adair County, Kentucky, from July 2007 through May 20, 2009 (DN 1).

On July 8, 2009, a federal Grand Jury in the Western District of Kentucky issued a 43 count Superseding Indictment naming White, his original nine co-defendants, and Roderick Curry ("R. Curry"), Mark Vincent Curry ("M. Curry"), Kelvin Bowers ("Bowers"), Chad T. Bridgewater ("Bridgewater"), Diontate Ennis ("Ennis"), Jarrid Decarlo Smith aka BAM ("J. Smith"), Steven Wayne Williams ("Williams"), and Joshua I. Woodard ("Woodard") Travis Delbert Crew ("Crew"), and Justin K. Dicken ("Dicken") (DN 74). The Superseding Indictment charged White and his co-defendants with being involved in a drug trafficking conspiracy that involved 50 grams or more of crack cocaine in Adair County, Kentucky, between July 2007 and May 20, 2009 (Count 1) (DN 74). Count 43 is a forfeiture count pertaining to White and his co-defendants (DN 74).

On September 9, 2009, a federal Grand Jury in the Western District of Kentucky issued a 41 count Second Superseding Indictment against White, the above named co-defendants, and Faye Thompson ("Thompson"), Teresa L. Richardson ("Richardson"), Donna M. Curry ("D. Curry"), and Jay D. Lovins ("Lovins") (DN 173). The Second Superseding Indictment charged White and his co-defendants with being involved in a drug trafficking conspiracy that involved 50 or more grams of crack cocaine in Adair County, Kentucky, between July 2007 and May 20, 2009 (Count 1) (DN 173). Count 41 is a forfeiture count that pertains to White and his co-defendants (DN 173).

On January 4, 2010, a federal Grand Jury in the Western District of Kentucky issued a 43 count Third Superseding Indictment against White, the above co-defendants, and Briceson Walkup ("Walkup"), Vickie Sue Passmore ("Passmore"), Jodi Momanyi ("Momanyi"), Charles Curry ("C. Curry"), Cassie M. Strunk ("Strunk"), Vonda Bridgewater ("V. Bridgewater"), Henry Houston Murray ("Murray"), and Ethel Mae Bridgewater ("E. Bridgewater") (DN 311). The Third Superseding Indictment charged White and his co-defendants with being involved in a drug trafficking conspiracy that involved 50 or more grams of crack cocaine in Adair County, Kentucky, between July 2007 and May 20, 2009 (DN 311, Count 1). Additionally, the Third Superseding Indictment sets forth a forfeiture count that pertains to White and his co-defendants (DN 311).

On January 18, 2011, White executed a plea agreement with the United States that required him to enter a plea of guilty to Count 1 (DN 637, Plea Agreement). On the same date he executed a plea supplement (DN 643, Sealed Document). In the plea agreement, the parties agreed to the following factual basis for White's plea:

Between July 2007 and May 22, 2009, Michael Troy White knowingly conspired with individuals named in Count 1 of the Third Superseding Indictment in this case to distribute more than 50 grams of crack cocaine.

(DN 637, Plea Agreement at Paragraph 3).

Notably, the plea agreement includes the following waiver provision:

12. Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. The Defendant knowingly and voluntarily waives the right (a) to directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742, and (b) to contest or collaterally attack his conviction and the resulting sentence pursuant to 28 U.S.C. § 2255 or otherwise.
Defendant understands and agrees that nothing in this plea agreement should be construed as a waiver by the United States of its right to appeal the sentence under 18 U.S.C. §3742.

(DN 637, Plea Agreement at Page 4) (emphasis added).

White signed the plea agreement on January 18, 2011 (DN 637, Plea Agreement at Page 7). Immediately above his signature is the attestation:

I have read this Agreement and carefully reviewed every part of it with my attorney. I fully understand it and I voluntarily agree to it.

(DN 637, Plea Agreement at Page 7). White's attorney, Dennis Ritchie, also signed the plea agreement on January 18, 2011 (DN 637, Plea Agreement at Page 7). Immediately above counsel's signature is the attestation:

I am the defendant's counsel. I have carefully reviewed every part of this Agreement with the defendant. To my knowledge my client's decision to enter into this Agreement is an informed and voluntary one.

(DN 637, Plea Agreement at Page 7).

During the change of plea hearing on January 18, 2011, White advised Magistrate Judge E. Robert Goebel ("Magistrate Judge Goebel") of his desire to withdraw his previously entered plea of not guilty and enter a plea of guilty to Count 1 of the Third Superseding Indictment pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure (DN 665, Report and Recommendation; DN 1256, Change of Plea Transcript at Pages 2-27). During the hearing defense counsel confirmed that he had explained to White his Constitutional rights; he believed White understood those rights; he talked with White about the evidence and any possible defenses that may be available (DN 1256, Change of Plea Transcript at Pages 2-3). Additionally, while under oath, White affirmatively indicated to Magistrate Judge Goebel that he had enough time to talk about his guilty plea with defense counsel (DN 1256, Change of Plea Transcript at Page 7). Further, White confirmed that he was satisfied with the advice he had received so far from defense counsel (DN 1256, Change of Plea Transcript at Page 7). Moreover, while under oath, Curry affirmatively indicated he understood he was not required to plead guilty and no one can make him plead guilty, not even his attorney (DN 1256, Change of Plea Transcript at Page 7). Moreover, White confirmed that he understood his Constitutional rights pertaining to a trial and by entering a guilty plea he will be giving up those rights (DN 1256, Change of Plea Transcript at Pages 8-10).

During the change of plea hearing, Assistant United States Attorney David R. Weiser ("AUSA Weiser") confirmed that under the terms of the plea agreement White would be giving up his rights to directly appeal and to collaterally attack his conviction and sentence (DN 1256, Change of Plea Transcript at Page 17). Magistrate Judge Goebel then asked White the following question:

Mr. White, do you understand that you will have no right of appeal from Judge Russell's sentence in this case? The sentence in this case, there is no appeal to a higher court saying the judge messed up, he did wrong.
You understand that you are giving up that right in this written plea agreement? Do you understand that, sir?

(DN 1256, Change of Plea Hearing Transcript at Page 17). White responded "[y]es, sir" (DN 1256, Change of Plea Hearing Transcript at Page 17).

Magistrate Judge Goebel then explored whether White understood he was also giving up his right to collaterally attack his sentence (DN 1256, Change of Plea Hearing Transcript at Page 18). In an effort to help White understand the right he was giving up, Magistrate Judge Goebel engaged in the following colloquy with White:

THE COURT: You have also given up the right to make what's called a collateral attack on the sentence. And we see that quite often for persons who are sent to prison, they will file a petition with us called a petition for writ of habeas corpus. And in this petition, they often claim that their attorney was ineffective, that he did not give them good advice or that you really didn't understand the consequences of your plea, things of that nature. It's a very limited list of things that are sometimes raised. And raised in those kind of petitions, you understand you can't raise those types of complaints in that type of petition against - in this situation?
Do you understand that, sir?
THE DEFENDANT: Yes, sir.

(DN 1256, Change of Plea Transcript ...


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