United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES, District Judge.
Before the Court is the Motion of Arthur Lindsey Barnes filed on November 14, 2013, pursuant to Title 28, United States Code, Section 2255 purportedly seeking to set aside his Judgment of Conviction and subsequent sentence. Barnes amended his motion on January 2, 2014, see [Docket No. 37], claiming that the [Assistant] U.S. Attorney "is in violation of 18 U.S.C. § 1341 for her use of moral turpitude, " and that one of the essential elements of the offense to which formed the basis of his guilty plea required submission to a jury. Id.
FACTS AND PROCEDURAL HISTORY
On October 10, 2012, Barnes entered a negotiated plea of guilty to a violation of 18 U.S.C. § 922(u), the theft of firearm from a licensed firearms dealer. Barnes was sentenced on January 25, 2013 to seventy (70) months imprisonment, a three year term of supervised release, and a mandatory assessment in the amount of $100.00. [Docket No. 34]. The judgment of conviction was entered on January 31, 2013. Through a separate order entered on January 30, 2013, and in line with the parties' agreement, the Court dismissed Counts 2 & 3 of the indictment brought against Barnes. [Docket No. 33]. Count 2 charged Barnes with knowingly receiving and possessing firearms, which were not registered to him in violation of Title 26, United States Code, Sections 5861(d), 5841 and 5871. Count 3 charged him with the intent to cause death or serious bodily harm of another through force and violence while possessing a handgun and taking property from that individual in violation of Title 18 U.S.C., Section 2119(1). Barnes did not appeal his guilty plea on sentence.
Barnes filed this Motion, and it appears that he claims that the plea agreement is not valid because he has declared his sovereignty and terminated his signature. [Docket No. 36], at 4. In short, he contends that he did not enter the plea agreement "knowingly, intentionally, willingly, intelligently and voluntarily, with full disclosure and meeting of the mind." Id.
DEFENDANT'S WAIVER OF HIS RIGHT TO ASSERT CLAIMS UNDER 28 U.S.C. § 2255
On this record, the Court may conclusively determine that Barnes is entitled to no relief; therefore, the Court has not requested a response from the United States. See 28 U.S.C. 2255(b). When Barnes entered his negotiated plea of guilty, he did so pursuant to a plea agreement which contained an unambiguous waiver of his rights to appeal the sentence or contest the sentence in any post-conviction proceeding. A defendant may, as part of a plea agreement, waive the right to appeal, see, United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992), and the right to seek post-conviction relief. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). To determine the effectiveness of a waiver, the district court is responsible for ensuring that the defendant fully understands his rights to appeal and the consequences of waiving that right. United States v. Baty, 980 F.2d 977, 978 (5th Cir. 1992), cert. denied, 508 U.S. 956, 113 S.Ct. 2457, 124 L.Ed.2d 672 (1993). "To be valid, a defendant's waiver of his right to appeal must be informed and voluntarily. A defendant must know that he had a right to appeal his sentence and that he was giving up that right.'" United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994), cert. denied, 513 U.S. 893 , 115 S.Ct. 244, 130 L.Ed.2d 166 (1994) ( quoting United States v. Melancon, 972 F.2d at 567). As of part of the plea colloquy, the district court must address the defendant in open court and determine whether defendant understands the waiver and that the waiver applies to the circumstances at issue. See Fed.R.Crim.P. 11(b)(1)(N). The plea agreement will be upheld where the record clearly shows that the defendant read and understood it and that he raised no questions regarding any waiverof-appeal issue. Portillo, 18 F.3d at 292-93.
THE GUILTY PLEA HEARING
Not only did Barnes, a college graduate, sign the plea agreement confirming that he read it or had it read to him; had it explained to him by his attorney; and that he understood it and was voluntarily agreeing to it, the transcript of the plea hearing conducted on October 10, 2012, without any doubt, establishes that Barnes understood the terms of the plea agreement:
THE COURT: Are you capable, Mr. Barnes, of consulting with your attorney today and understanding anything that he may tell you?
THE DEFENDANT: Yes, sir, I am.
THE COURT: Do you understand why we're here today and what is happening?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the seriousness of these proceedings?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Sellers [counsel for defendant], have you met with your client?
MR. SELLERS: Yes, sir, your Honor.
THE COURT: Is your client, in your opinion, capable of understanding the proceedings and also capable of understanding the advice that you may have provided to him?
THE COURT: Do you raise any issue with respect to Mr. Barnes' competence either today for the purpose of this hearing or on the date March 13, 2012, for the date that the offense was charged?
MR. SELLERS: No, sir, your Honor. And for the record, there was a motion filed to possibly get mental evaluation. But after talking with my client we addressed those issues and I do believe he's competent for the purposes of this hearing as well as the time of the crime.
The motion was withdrawn after speaking with my client and discussions with the U.S. Attorney's Office. So we did withdraw that motion because my client did assure that he was competent at the time he committed the act and understood the difference between right and wrong. So we did ...