United States District Court, E.D. Kentucky, Lexington
REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
On November 19, 2013 defendant's pro se motion pursuant to 28 U.S.C. §2255 to vacate or set aside his federal conviction and sentence was filed. Doc. 29. The United States filed its response in opposition on February 14, 2014 (doc. 37) and the March 14, 2014 deadline for filing a reply (doc. 33) has expired without a reply having been filed. Having reviewed the record and applicable law, the Court concludes that the §2255 motion should be denied.
I. Factual and Procedural History
Defendant was charged in July 2012 with possessing a firearm after having been convicted of a felony. Doc. 1. The penalty section of the indictment provided that the penalty range was "[n]ot less than 15 years['] imprisonment, nor more than life imprisonment...." Id. at p.2. On the same day as the indictment was filed, the United States filed a notice regarding enhanced statutory punishment. Doc. 2. That notice provided in relevant part that if defendant were convicted he would "be subject to an enhanced statutory punishment pursuant to 18 U.S.C. §924(e) and shall be sentenced as an armed career offender... because he has three or more previous violent felony convictions that were committed on occasions different from one another[.]" Id. at p.1. The notice then listed the qualifying felonies as two burglary in the third degree convictions in the Harrison County, Kentucky Circuit Court; three convictions for complicity to commit burglary in the third degree in the Estill County, Kentucky Circuit Court; another burglary in the third degree conviction in the Harrison County, Kentucky Circuit Court; a burglary in the third degree conviction in the Jackson County, Kentucky Circuit Court; and a burglary in the second degree conviction in the Robertson County, Kentucky Circuit Court. Id. at p. 1-2.
In August 2012 defendant entered into a plea agreement with the United States and filed a motion for rearraignment. Doc. 14. Section three of defendant's plea agreement-which defendant signed on August 15, 2012-provides in relevant part that defendant "had three or more previous violent felony convictions that were committed on occasions different from one another." Doc. 24, p.2, 4. Section four of the plea agreement provides that "[t]he maximum statutory punishment for this offense is imprisonment for not less than 15 years and not more than life" because "[t]he Defendant has three previous violent felony convictions under 18 U.S.C. §924(e)... and therefore the Defendant is subject to the enhanced statutory punishment." Id. Section eight of the plea agreement provides that [t]he defendant waives the right to appeal the guilty plea and conviction. The Defendant also waives the right to attack collaterally the guilty plea, conviction, and sentence." Id. at p.3.
At his August 30, 2012 rearraignment, defendant answered in the affirmative when asked if he was "fully satisfied" with his attorney's "advice, representation, and counsel[.]" Doc. 31, p. 6. Defendant answered "[y]es, ma'am" when asked by the Court if he had read the plea agreement prior to signing it. Id. at p.7. Defendant yet again answered in the affirmative when asked by the Court whether he admitted "every single fact" in paragraph three of the plea agreement (which, among other things, provided that defendant had three or more previous violent felony convictions) was correct. Id. at p. 9. Defendant also stated that he understood that the mandatory minimum punishment for his offense was fifteen years' imprisonment due to his previous violent felony convictions. Id. at p. 9-10.
The United States then orally summarized the terms of the plea agreement, including paragraph eight's waiver clause. Id. at p. 10. Specifically, the United States noted that defendant "has agreed to waive his right to appeal the guilty plea and the conviction, and has also agreed to waive the right to file a collateral attack, a challenge after an appeal, to the guilty plea, the conviction, and to the sentence." Id. At the conclusion of the United States' oral summary of the plea agreement, defendant answered "[y]es, ma'am" both when asked by the Court if he had understood the United States' recitation and whether the recitation was "all correct[.]" Id. at p. 11. Judge Coffman then again explained to defendant that pursuant to paragraph eight of the plea agreement he had "given up or waived [his] right to appeal or to attack collaterally, which means file a separate lawsuit attacking your guilty plea or your conviction. You have also given up your right to file a separate lawsuit attacking your sentence...." Id.
Later during the rearraignment Judge Coffman asked defendant if he "admit[ted] that before that date [when he possessed the firearm at issue] you [defendant] had three or more previous violent felony convictions[, ]" to which defendant answered: "Yeah. Yes, ma'am. I just-I just-I mean, the federal-I've read it, and it states it's- it's a-it's a big difference between state and federal, but, yeah, I've read it. I mean, it states clearly in there that it's-they state it as violent felonies." Id. at 16-17. The Court then asked defendant again if he "admit[ted] that they were violent felony convictions[, ]" to which defendant responded "[y]eah, according to federal guidelines, yes, ma'am, I have got to." Id. at 17. Defendant's counsel then stated that "[t]he violent felon[y], a felony of a business, is not a violent felon[y] in state court, but it is under the [federal] statutes." Id. The Court readily agreed, responding "[n]ever the same in state court." Defendant's attorney then stated "I understand, and that's why I've explained it to him over and over." Id.
In December 2012, defendant was sentenced to 180 months' imprisonment under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §924(e), based on having three or more previous violent felony convictions. Doc. 27, 32. During that hearing, defendant's counsel specifically stated that defendant was "aware at this late date [of] the difference in how the state handles burglary of a business as not a violent crime as opposed to how it's treated in the federal system under the armed career criminal [act]." Doc. 32, p.9. Defendant did not file an appeal.
No action was taken in the case until defendant filed the present §2255 motion in November 2013. Doc. 29. At the Court's directive, the court reporter filed in the record transcripts of the rearraignment and sentencing hearings. Docs. 31, 32.
A. Issues Raised By Defendant
Defendant raises two interrelated arguments, both of which are based upon alleged ineffective assistance of counsel. First, defendant contends counsel was ineffective for "failing to challenge movant's PSR and... for not challenging movant's prior's [sic] that were erroneously misapplied...." Doc. 29-1, p.2 (emphasis and nonstandard capitalization omitted). Second, defendant contends counsel was ineffective for failing to "adequately advise movant related to plea negotiations, exposure, and information to make a ...