United States District Court, E.D. Kentucky, Southern Division, at Pikeville
MAGISTRATE JUDGE'S REPORT & RECOMMENDATION
EDWARD B. ATKINS, Magistrate Judge.
This matter is before the undersigned on Defendant Robert Darrell Bryant's, (hereinafter "Bryant"), pro se Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. [Record No. 174]. Consistent with local practice, the matter has been referred for preparation of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Having been fully briefed, and for the reasons discussed below, it is recommended that Bryant's Motion to Vacate, Set Aside or Correct his Sentence be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 11, 2011, Bryant was arrested and charged with Conspiracy to Distribute five kilograms of Cocaine in violation of Title 21 U.S.C. §§ 846 and 841(a)(1). [Record No. 3]. On August 5, 2011, Bryant was charged by a superseding indictment with one count of Conspiracy to Distribute five kilograms of Cocaine, one count of Conspiracy to Distribute Oxycodone, eighteen counts of Possession with Intent to Distribute a Schedule II Controlled Substance, one count of Distribution of less than fifty kilograms of Marijuana, three counts of Possession of a Firearm by a Convicted Felon, and two counts of Possession of a Firearm in Furtherance of a Drug Trafficking Crime. [Record No. 43]. On October 6, 2011, Bryant was charged by a second superseding indictment with one count of Conspiracy to Distribute Five Kilograms or more of Cocaine, one count of Conspiracy to Distribute Oxycodone, eighteen counts of Possession with Intent to Distribute a Schedule II Controlled Substance, one count of Distribution of less than Fifty Kilograms of Marijuana, three counts of Possession of a Firearm by a Convicted Felon, and two counts of Possession of a Firearm in Furtherance of a Drug Trafficking Crime. [Record No. 50-1].
Bryant pled guilty on February 15, 2012 to Count 1 of the indictment charging him with Conspiracy to Distribute Five Kilograms or more of Cocaine, Count 2 of the indictment charging him with Conspiracy to Distribute Oxycodone, and Count 17 of the indictment charging him with Possession of a Firearm in Furtherance of a Drug Trafficking Crime. [Record Nos. 127, 129]. Pursuant to the provisions of a binding plea agreement, Bryant admitted to selling cocaine and oxycodone out of his residence and to knowingly possessing a firearm in furtherance of a drug transaction. [Record No. 177 at 30-31]. Bryant also admitted that he had an agreement with Nick Short, Carol Bryant and Charles McCauley to sell oxycodone. Id . at 31. The Court accepted this binding plea agreement and sentenced Bryant to 120 months in prison on Count 1, to run consecutively to a term of imprisonment of 60 months for Count 17, for a total sentence of 180 months. [Record No. 168].
Bryant did not appeal his plea, conviction, or sentence. [Record No. 174]. On August 5, 2013, Bryant filed the instant motion seeking to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Id . In his motion, Bryant asserts that he did not voluntarily and intelligently enter into his plea agreement because he was still in the process of severe withdrawal from both Xanax and Oxycodone. Id . at 11. In addition, Bryant claims that he was denied effective assistance of counsel when his attorney was aware of these severe withdrawals and instead of reading the plea agreement to him verbatim, his attorney incorrectly summarized it. Id . Bryant also alleges that counsel led him to believe that if he pled guilty, his co-defendant/wife, Carol Bryant, would receive probation instead of a jail sentence and that he would receive additional sentence reductions for his firearm and drug charges. Id.
II. STANDARD OF REVIEW
A prisoner who moves to vacate his sentence under 28 U.S.C. § 2255 must show (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence was otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail, "a petitioner must demonstrate a constitutional error which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States , 398 F.3d 855, 858 (6th Cir. 2005).
In his petition, Bryant claims two grounds for relief: First, that he was denied effective assistance of counsel when his attorney summarized and misrepresented the contents of the plea agreement to him. This, he claims, prevented him from entering a knowing, intelligent and voluntary plea, and that but for this, he would have insisted on going to trial. Second, he asserts that he did not knowingly and voluntarily enter into his plea agreement because at the time of his plea, he was suffering from extreme withdrawals from Xanax and Oxycodone. [Record No. 174]. The United States argues that Bryant's § 2255 motion should be dismissed because he entered a knowing, intelligent and voluntary plea, which included a waiver his right to collaterally attack his guilty plea, conviction and sentence. [Record No. 183 at 2].
In a case such as this, Bryant's waiver of the right to collateral attack would normally bar all claims in this action unless they relate to the validity of his plea. This bar normally extends to claims of ineffective assistance of counsel, as long as the claim of ineffective assistance of counsel does not relate to "the very validity of [the] guilty plea." In re Acosta , 480 F.3d 421, 422 (6th Cir. 2007); see also, Davila v. United States , 258 F.3d 448, 451 (6th Cir. 2001). Examples of claims that go to the validity of the plea include a claim that "the plea was not knowing or voluntary, or was the product of ineffective assistance of counsel." Acosta , 480 F.3d at 422. In this case, Bryant alleges that his plea was not knowing, intelligent and voluntary, but was the result of his diminished capacity. In addition, Bryant also claims that his plea was a result of ineffective assistance of counsel. For both of these claims, Bryant argues that his plea was not knowing, intelligent and voluntary. These claims go to the validity of his plea agreement. As a result, they are not waived, and the Court will address them below by discussing whether Bryant entered a knowing, intelligent and voluntary plea, and whether the action is, as a consequence, barred by his waiver of right to bring this action.
a. Validity of Plea
A plea of guilty is valid if it is entered voluntarily and intelligently, Bradshaw v. Stumpf , 545 U.S. 175, 183 (2005); Bousley v. United States , 523 U.S. 614, 618 (1998), as determined under the totality of the circumstances. Brady v. United States , 397 U.S. 742, 749 (1970); Boykin v. Alabama , 395 U.S. 238, 242-44 (1969); King v. Dutton , 17 F.3d 151, 153 (6th Cir. 1994). The government bears the burden of showing that the petitioner's plea was voluntary, intelligent, and knowing. Stumpf v. Mitchell , 367 F.3d 594, 600 (6th Cir. 2004), vacated in part on other grounds by Bradshaw v. Stumpf , 545 U.S. 175 (2005). "[T]he state generally satisfies this burden by producing a transcript of the plea proceeding." Id.
To enter a knowing plea, the defendant must understand the true nature of the charge against him. Id . at 608. The Supreme Court has "never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel." Stumpf , 545 U.S. at 183. The Constitution requires that the totality of the circumstances reflect that the defendant be informed of all the direct consequences of his plea. Brady , 397 U.S. at 755. Although no precise litany of rights waived is required, Sparks v. Sowders , 852 F.2d 882, 885 (6th Cir. 1988); Campbell v. Marshall , 769 F.2d 314, 324 (6th Cir. 1985), the record should reflect a full understanding of the direct consequences so that the plea represents a voluntary and intelligent choice among the alternatives. North Carolina v. Alford , 400 U.S. 25, 31 (1970); Riggins v. McMacken , 935 F.2d 790, 795 (6th Cir. 1991). "That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.'" Parke v. Raley , 506 U.S. 20, 29 (1992) (quoting Boykin v.Alabama , 395 U.S. 238, 243 (1969)).
Further, if a plea bargain is struck, the defendant should be held to the terms of the plea bargain and not be heard to complain that the bargain was other than what he openly and unequivocally declared in open court. Mabry v. Johnson , 467 U.S. 504, 510-11 (1984). Thus, for example, a habeas corpus petitioner cannot obtain relief by claiming that his counsel promised him shock probation from ...