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United States v. Townsend

United States District Court, S.D. Mississippi, Northern Division

May 15, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
HERBERT JEROME TOWNSEND, Defendant.

ORDER GRANTING IN PART AND DISMISSING IN PART DEFENDANT'S MOTION PURSUANT TO 28 U.S.C. § 2255

CARLTON W. REEVES, District Judge.

Before the Court is Herbert Jerome Townsend's pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 [Docket No. 321] seeking relief from his 384-month sentence imposed after pleading guilty to conspiracy to possess with intent to distribute more than 50 grams of methamphetamine. Having considered the issues presented, the record, and relevant authorities, the Court finds that the Motion should be granted in part to allow an evidentiary hearing on Defendant's claim that his attorney was ineffective for failing to timely file a notice of appeal, and dismissed in all other respects.

I. Background

On October 3, 2012, a federal grand jury returned a 23-count indictment charging Townsend (and others) with conspiracy to possess with intent to distribute more than 50 grams of methamphetamine, possession with intent to distribute methamphetamine and notice of forfeiture. See Docket No. 4. Pursuant to a written Plea Agreement, Townsend appeared before this Court with his lawyer, Ross Barnett, Jr., on May 2, 2013, to plead guilty to the sole count of the indictment, conspiracy to possess with intent to distribute more than 50 grams of methamphetamine. Docket No. 224. Townsend was sentenced to 384 months in prison on September 22, 2013. Townsend did not appeal, having waived the right to do so.

On April 30, 2014, Townsend filed this petition, which alleges as follows: (1) his attorney was ineffective for failing to timely file a notice of appeal ("NOA"); (2) the "[d]rug [q]uantity is erroneous because it was not included in the indictment"; (3) the "[c]onspiracy was a buyer/seller relationship because there was no agreement or no joint stake in the drug selling operation"; and (4) the Government "breached its plea agreement by not moving for 2 levels pursuant to 3E1.1 and the leadership role is non-existent because the offense was a fronting relationship, [sic] the wiretap did not constitute with the necessity requirement." Docket No. 321 at 2-11. On June 17, 2014, Townsend filed a Motion to Supplement his § 2255 petition [Docket No. 343], in which he contends that the "Government breached [the] plea agreement by not rewarding [him] with the 3E1.1 for acceptance of responsibility in violation of amendment 775 and doctrine [sic] U.S. v. Palacios no. 13-40153." Townsend has requested that an evidentiary hearing be held on his claims.

II. Legal Standard

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

Generally speaking, "an informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). "[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed." United States v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994); see also United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005) ("Because McKinney indicated that he had read and understood the plea agreement, which includes an explicit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.").

Claims of ineffective assistance of counsel are excepted from the general rule and may be brought in a § 2255 proceeding, but "only when the claimed [ineffective] assistance directly affect[s] the validity of th[e] waiver or the plea itself." United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).

III. Discussion

A. Waiver

The record reveals that Townsend did, in fact, knowingly and voluntarily waive his right to challenge his sentence via § 2255 petition. Townsend's appeal waiver is contained in the written plea agreement that he and his attorney read and signed. See Docket No. 224, at 4-6. It also was discussed at the change of plea hearing, where Townsend specifically confirmed that he had read and discussed (with counsel), understood, signed, and agreed with the terms of the plea agreement and plea supplement. See Transcript of Change of Plea Hearing, May 2, 2013, at 15-18. Additionally, Townsend advised the Court that when discussing these documents with his attorney, the attorney permitted him to ask questions about the documents and counsel answered those questions to Townsend's satisfaction. Id. The Court performed a detailed probing of Townsend's comprehension of the guilty ...


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