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United States v. Williams

United States District Court, D. Minnesota

May 14, 2018

United States of America, Respondent-Plaintiff,
v.
Jermaine Reggie Smith Williams, a/k/a Corey Young, a/k/a Midnight, Petitioner-Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Jermaine Reggie Smith Williams' (“Petitioner-Defendant”) motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct a sentence by a person in federal custody, (Doc. No. 64), in which he alleges that his trial counsel was ineffective because he did not object to the calculated advisory guidelines base offense level and the advisory guidelines sentencing range because his 2000 third-degree assault conviction, (Presentence Investigation Report (“PSR”) ¶ 33), was allegedly “stale” and he should not have received any criminal history points because the amount of time he served was less than one year and one month. (Doc. No. 64 at 7-8.) Specifically, Petitioner-Defendant asserts that his trial counsel was ineffective when he advised him to sign the plea agreement without investigating the third-degree assault case and the sentence that he served. Consequently, Petitioner-Defendant alleges that “he is now serving an illegal sentence” because the correct advisory guidelines range should have been 46 to 57 months, not 70 to 87 months as stated in the plea agreement and the PSR, (Doc. No. 64 at 9), and as found by this Court. Petitioner-Defendant is before the Court seeking to be resentenced under the advisory range of 46 to 57 months, described by Petitioner-Defendant as the “correct” advisory guidelines range. (Doc. No. 64 at 12.) The United States (the “government”) opposes Petitioner-Defendant's motion. Specifically, the government alleges: (1) Petitioner-Defendant's advisory guidelines calculations are not a proper subject on collateral review pursuant to § 2255 because he did not file a direct appeal and therefore procedurally defaulted on this issue; (2) however, even if Petitioner-Defendant's claim was the proper subject of his § 2255 motion, the advisory guidelines were correct pursuant to U.S. Sentencing Guidelines (“U.S.S.G.”) §§ 4A1.1(a) and 4A1.2(k)(2)(A) because he served a total term of imprisonment of more than one year and one month when his multiple probation violations for his 2000 third-degree assault conviction are considered with his original term of imprisonment. Consequently, the government asserts that the PSR and the terms of the plea agreement properly gave three points to Petitioner-Defendant's criminal history score for that conviction. As a result, the government asserts there was no ineffective assistance of counsel and Petitioner-Defendant is not entitled to any relief.

         For the reasons that the Court discusses below, the Court not only denies Petitioner-Defendant's motion to vacate, set aside, or correct his sentence, (Doc. No. 64), but the Court also denies Petitioner-Defendant's motions for additional discovery, (Doc. No. 73), and reconsiders its decision granting defendant's motion to file an amended § 2255 petition (Doc. No. 70); and defendant's motion for extension of time to file his supplemental/amended § 2255 petition, (Doc. No. 72).

         BACKGROUND

         On September 21, 2016, a grand jury returned a two-count Indictment charging Petitioner-Defendant with being a felon in possession of both a firearm and ammunition, both in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), each of which carried a statutory maximum term of 10 years' imprisonment. (PSR ¶¶ 1, 116; Doc. No. 1.)

         On December 20, 2016, Petitioner-Defendant appeared with his counsel and entered a plea of guilty to Count 1 of the Indictment pursuant to a written plea agreement filed with the Court. (PSR ¶¶ 2-3; Doc. Nos. 35, 36.) On March 20, 2017, the United States Probation and Pretrial Services Office issued its final PSR at which time the PSR concluded that Petitioner-Defendant's total offense level was 21 and, with a criminal history category of V, the advisory guidelines range was 70 to 87 months, which was consistent with the advisory guidelines range contemplated by the plea agreement. (PSR ¶¶ 3, 119; Doc. No. 36, ¶ 5.f.) The PSR calculated, consistent with the plea agreement, that the base offense level was 24 pursuant to U.S.S.G. § 2K2.1(a)(2), based upon the Petitioner-Defendant having sustained two prior predicate felony convictions. (PSR ¶¶ 17, 33, 47.) Neither the government nor Petitioner-Defendant objected to the PSR guidelines calculations.

         The Court sentenced Petitioner-Defendant on May 1, 2017. At the sentencing hearing, the Court adopted the PSR's factual findings and guidelines calculations without objections from either party. (Doc. No. 57, SOR, § I.A.) This Court sentenced Petitioner-Defendant to the low end of the advisory guidelines range, which was 70 months, and imposed a supervised release term of 3 years. (Doc. No. 56.) Significantly, the Court also concluded, pursuant to the 18 U.S.C. § 3553(a) factors, that a fair and appropriate sentence was 70 months. And, consistent with those same factors, the Court, then and now, states that, irrespective of the advisory guidelines range, even if it would have started at 46 months, the Court would have imposed a 70-month sentence because anything less than 70 months would not promote respect for the law and be consistent with the § 3553(a) factors. Petitioner-Defendant did not file an appeal of his conviction or sentence. The Court also observes that, pursuant to the terms of the plea agreement, specifically paragraph 10, Petitioner-Defendant waived his right to appeal his sentence unless it exceeded 87 months, and the government waived its right to appeal the sentence unless it was less than 70 months.

         Petitioner-Defendant filed this timely § 2255 motion on or about October 10, 2017. (Doc. No. 64.) The government filed its response to Petitioner-Defendant's § 2255 motion on October 18, 2017, (Doc. No. 66), opposing Petitioner-Defendant's § 2255 motion, which the government has asserted is collaterally attacking the calculation of his guideline sentence. Petitioner-Defendant filed a reply to the government's response on December 11, 2017. (Doc. No. 69.) Then, on December 29, 2017, Petitioner-Defendant filed a motion to amend his § 2255 motion, (Doc. No. 70), alleging new claims of ineffective assistance of counsel by asserting that his trial counsel failed to obtain discovery of the search warrant, failed to move to suppress evidence, and failed to assert a defense that the ammunition and magazines seized from his residence under the warrant did not belong to Petitioner-Defendant. (Doc. No. 70 at 2-3.) As observed by the government, Petitioner-Defendant also asserted a new claim that the United States violated Brady by failing to provide search warrant materials in discovery. (Doc. No. 70 at 2-3.) With the information that the Court had at that time, the Court granted Petitioner-Defendant's leave to amend on February 2, 2018. (Doc. No. 71.) On February 20, 2018, Petitioner-Defendant then moved for an extension of 90 days to file what he then referred to as a “Supplemental/Amended” § 2255 Motion. (Doc. No. 72.) In that motion, Petitioner-Defendant now claimed that he was filing motions with the (federal) clerk's office, the Hennepin County clerk's office, and a FOIA request with the ATF, for discovery in support of his new ineffective of assistance of counsel claims. (Doc. No. 72 at ¶ 2.) Petitioner-Defendant also then claimed for the first time that the search warrants executed at his residence and on his van, which were the search warrants when the police seized the firearm, ammunition, and magazines, were “false, ” but he needed the “discovery materials . . . to support his claims.” (Doc. No. 72 ¶¶ 4-5.) Petitioner-Defendant then filed an additional motion for discovery, (Doc. No. 73), on the same day, as the Court noted above. With the information the Court had at that time, the Court, on February 21, 2018, granted Petitioner-Defendant's motion for a 90-day extension ordering Petitioner-Defendant's “Supplemental/Amended” § 2255 Motion to be filed within 90 days of the Order, or by May 22, 2018, and requested that the government respond to Petitioner-Defendant's discovery motion, (Doc. No. 73), by March 9, 2018. (Doc. No. 75.)

         Then, on March 2, 2018, the government moved for an order finding that Petitioner-Defendant had waived the attorney-client privilege regarding communications with his defense counsel, Kevin DeVore, based on his various claims of ineffective assistance of counsel and his § 2255 motion, his motion to amend, and his motion for discovery. (Doc. No. 78.) This Court issued an Order finding that Petitioner-Defendant “waived the attorney-client privilege by challenging his former counsel's effectiveness, ” and authorized and directed Attorney DeVore to provide an affidavit directly responsive to the allegations raised by Petitioner-Defendant, “includ[ing], but . . . not limited to, the subjects of: the investigation and/or research of the case; the discovery process; [Petitioner-Defendant's] plea and plea hearing; [Petitioner-Defendant's] sentence; and any post-sentencing communications between [Petitioner-Defendant] and Attorney DeVore.” (Doc. No. 80.)

         Significantly, on March 6, 2018, Attorney DeVore filed a four-page, eight-paragraph sworn Affidavit, outlining the extensive time spent meeting with Petitioner-Defendant and discussing the case and potential defenses, including specifically “the search warrant issues, ” and stating that all of the police reports and warrants were provided to Petitioner-Defendant and discussed with him extensively. (Doc. No. 80.)

         DISCUSSION

         I. Section 2255 Legal Standard

         Title 28, United States Code, Section 2255, provides that a prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” In making such a motion, a § 2255 action requires ...


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