United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Defendant Eric Lance Whitson has moved the Court to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 51] According to local practice, Whitson's motion was referred to a United States Magistrate Judge for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1)(B). On December 30, 2014, United State Magistrate Judge Edward B. Atkins issued his report, recommending that Whitson's motion be denied. [Record No. 68] Whitson filed timely objections to the report. [Record No. 69, 70] Having conducted a de novo review of the portions of the recommendation to which Whitson objects, the Court will adopt the magistrate judge's recommended disposition and deny the relief sought.
Whitson pleaded guilty pursuant to a written Plea Agreement on February 26, 2013, to Count One of the Indictment charging production of child pornography in violation of 18 U.S.C. § 2251(a) and Count Four, charging possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). [Record No. 19] In his Plea Agreement, Whitson waived the right to appeal his sentence unless his term of imprisonment exceeded 180 months. [Record No. 43, pp. 4-5, ¶ 8] He was sentenced on September 9, 2013, to a term of imprisonment of 180 months on Count One and 120 months on Count Four, to run concurrently for a total term of 180 months, which was the mandatory statutory minimum. [Record No. 46] Whitson did not appeal his sentence. However, on April 24, 2014, he filed the pending § 2255 motion.
Whitson has asserted three grounds for collateral relief: (i) his counsel was ineffective for failing to consult with him regarding a possible appeal and failed to file an appeal of his sentence; (ii) his counsel was ineffective "due to both the individual and cumulative impact of multiple deficiencies or errors by counsel during the pretrial plea, sentencing and direct appeal process;" and (iii) his "conviction and sentence were violative of the First, Second, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution, " which included Whitson's argument that his (iv) "conviction and sentence are violative of his right to freedom of speech and to petition, his right to be free of unreasonable search and seizure, his right to due process of law, his rights to counsel, to jury trial, to confrontation of witnesses, to present a defense, and to compulsory process, and his right to be free of cruel and unusual punishment under the Constitution." [Record No. 51, pp. 3-5] These grounds included additional arguments that his counsel was ineffective for: (v) failing to move for dismissal of the indictment because it allegedly was not presented or returned in open court; (vi) failing to fully advise him of the law relevant to his decision to plead guilty; (vii) failing to move for suppression of evidence; (viii) failing to investigate or present available evidence and object to false and unreliable evidence; (ix) laboring under a conflict of interest; and (x) cumulative error. [ See Record No. 51, pp. 8-11.] Whitson further argued that: (xi) the Court judicially modified his plea agreement by allowing an appeal of any sentence that exceeded 180 days, rather than 180 months, at the sentencing hearing. [Record No. 51, p. 8]
On December 30, 2014, Magistrate Judge Atkins recommended that this Court deny Whitson's § 2255 petition. [Record No. 68] The magistrate judge concluded that Whitson knew and understood the waiver provisions and that a slight misstatement by referring to 180 days, rather than months, did not modify the terms of the waiver. The magistrate judge also concluded that it was not objectively unreasonable for counsel not to consult with Whitson regarding an appeal, and that Whitson was not prejudiced by his attorney's actions. Whitson's remaining arguments were merely conclusory legal statements and, therefore, insufficient for relief to be granted. [Record No. 68, p. 3] Consequently, the magistrate judge determined that an evidentiary hearing was unwarranted and that Whitson's motion should be denied.
In seeking relief under 28 U.S.C. § 2255, a defendant may assert that the sentence was imposed in violation of the Constitution or federal law, that the court lacked jurisdiction, that his or her sentence exceeded the maximum penalty authorized by law, or that the sentence is otherwise subject to collateral attack. To prevail on a claim of constitutional error, a defendant must establish an error of constitutional magnitude which had a substantial and injurious effect or impact on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citations omitted). Additionally, to prevail on a claim of non-constitutional error, the defendant must show a "fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'" Id. (citations omitted).
A district court must make a de novo determination of those portions of a magistrate judge's recommendation to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).
A. Alleged Modification of the Plea Agreement
During the sentencing hearing, the Court misspoke by stating that Whitson had waived his right to appeal because the sentence did not exceed 180 days rather than 180 months, as specified in the Plea Agreement. [ See Record No. 49, p. 32.] However, this misstatement does not constitute a judicial modification of Whitson's waiver of the right to appeal any sentence that did not exceed 180 months as set out in his the plea agreement. First, as described in the magistrate judge's report, the terms of the appeal waiver were discussed at length during Whitson's re-arraignment hearing. [Record No. 31, pp. 20-22] Whitson understood the waiver and it was knowingly and voluntarily made. [ Id. ] "Even where statements made by the district court contradict provisions of an appellate waiver, the effect is still the same" where the waiver has been knowingly and voluntarily waived. United States v. McGee, 516 F.Appx. 515, 518 (6th Cir. March 1, 2013). Second, "any pronouncement from the bench that seeks unilaterally to amend a plea agreement exceeds the court's authority under the Criminal Rules and is without effect." United States v. Fleming, 239 F.3d 761, 518 (6th Cir. 2001). Thus, the Court misstatement during the sentencing hearing did not constitute a unilateral modification of the Plea Agreement.
B. Consultation Regarding Appeal
Whitson alleges that his attorney was ineffective for failing to consult with him regarding an appeal and failing to file a notice on his behalf. Whitson maintains that, notwithstanding his express waiver of his right to file an appeal, "any reasonable person having just received a 15 year sentence would want to test the legality of the sentence and sentencing" and that the only reason he did not ask for an appeal was that he was told it was not possible. [Record No. 69, p. 8] Even assuming ...