United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM, OPINION, & ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on William Sean Faison's motion to vacate (DE 727), Faison's motion to amend/correct his objection and motion to vacate (DE 742), and Faison's motion for a status update (DE 785). Consistent with local practice, Faison's motion to vacate was referred to the United States Magistrate Judge for consideration. For the reasons explained below, the Court will decline to adopt the Magistrate Judge's Report and Recommendation (DE 728), will grant Faison's motion to amend/correct his § 2255 motion (DE 742), will deny as moot Faison's motion for a status update (DE 785), and will deny his motion to vacate under 28 U.S.C. § 2255 (DE 727).
Faison was originally charged with one count of conspiracy to distribute and possession with the intent to distribute oxycodone and methadone. (DE 667, p. 2). On January 25, 2010, Faison and his court-appointed counsel, Cullen Gault, appeared before the Court for a change of plea hearing. (DE 351, p. 2). According to Faison, Faison had already signed a plea agreement and was prepared to plead guilty at the hearing. However, Mr. Gault informed the Court that he had been contacted by Sheldon Halpern, an attorney in Michigan, who indicated that Faison had contacted Halpern about representing him in the case. (DE 351, p. 2). Mr. Gault then asked the Court for a continuance, which the Court granted. (DE 351, p. 5). The Court then advised Faison that Gault was a good attorney, but he "is willing to withdraw that you may choose to have other counsel in this case. I don't want you to do anything you're not prepared to do here today." (DE 351, p. 5). Faison responded, "All right." (De 351, p. 5). Faison also noted, "I apologize too, Your Honor." (DE 351, p. 6).
On February 4, 2010, the Government superseded the indictment and added an additional count of money laundering. (DE 313). Mr. Halpern ultimately entered his appearance in the case and Mr. Gault was relieved of any further duties as counsel for Faison. (DE 358). On May 24, 2010, Faison pleaded guilty to both counts in the superseding indictment. (DE 468). After Faison withdrew his objections to the presentencing report concerning the amount of pills in question, the Court sentenced Faison to a term of imprisonment of 132 months, which was a downward variance from the sentencing guidelines. (DE 603, p. 23). There was no plea agreement.
On May 12, 2011 Faison filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, claiming that his retained counsel, Mr. Halpern, failed to file a notice of appeal despite Faison's specific request that one be filed. (DE 599). Faison also filed a motion for leave to amend his motion to vacate seeking to add "ground two" to his motion. (DE 620). Faison sought to add that Mr. Gault was also ineffective when he failed to advise Faison that by seeking a continuance in order to appoint new counsel, Faison would lose the offer from the Government. (DE 620, p. 3). Faison's motions were referred to Magistrate Judge Smith, who recommended that Faison's initial motion be granted and that his motion to amend be denied as moot. (DE 667).
This Court adopted the report and recommendation, overruled Faison's objections, and re-entered the same judgment so that Faison could appeal. (DE 677). With regard to Faison's motion for leave to amend his motion to vacate to add "ground two, " this Court found that "[b]ecause the Court will be vacating its judgment and entering a new judgment, a future § 2255 motion will be the first § 2255 motion on the new judgment." (DE 677). Faison then appealed to the Sixth Circuit, and his appeal was denied.
Faison now files another motion to vacate under 28 U.S.C. § 2255 alleging that Mr. Gault was ineffective when he did not inform the Court or the Government about Faison's signed plea agreement and sought a continuance rather than advising Faison to go forward with the plea. (DE 727).
A. Report and Recommendation
Faison's § 2255 motion was referred to the Magistrate Judge for consideration. The Magistrate Judge recommended that this matter be transferred to the Sixth Circuit Court of Appeals for a determination of whether the Defendant would be granted authorization to file a second or successive habeas petition. (DE 728, p. 5). Because this Court's previous order entered a new judgment in this matter and advised Faison that a future § 2255 would be considered the first § 2255 motion on the new judgment, the Court will decline to adopt the Magistrate Judge's recommendation (DE 728) and will consider Faison's § 2255 motion.
B. § 2255 Motion to Vacate
In his motion to vacate, Faison argues that "rather than forwarding the signed Plea Agreement to the Government, Attorney Gault, upon information and belief, never forwarded it to the Government." (DE 727, p. 3). Further, "Gault failed to advise either the Government or this Court that he had received an executed Plea Agreement." (DE 727, p.
3). Thus, the crux of Faison's argument is that Faison wanted to plead guilty on the day of his initial change-of-plea hearing rather than continue the matter and wait for his new attorney to enter an appearance. Faison insists that his guideline range would have been between 108 and 135 months had he accepted the original plea offer. (DE 727, p. 3). Of course, Faison was ultimately ...