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United States v. Neal

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

May 31, 2017

UNITED STATES OF AMERICA
v.
DEMARIO ANTWON NEAL Civil Action N. 1:17CV31-LG

          ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. §2255

          LOUIS GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE

         BEFORE THE COURT is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [47] filed by Petitioner Demario Antwon Neal. Petitioner pleaded guilty to one count of conspiracy to possess with intent to distribute methamphetamine, and he was sentenced to 235 months' imprisonment and thirty-six months' supervised release. Petitioner now seeks an evidentiary hearing and vacation of his judgment of conviction pursuant to § 2255 based on allegations of ineffective assistance of counsel.

         After carefully reviewing the submissions of the parties, Petitioner's trial counsel, the record in this matter, and the applicable law, the Court finds that the Motion should be denied. Petitioner has waived his § 2255 claims and has otherwise failed to satisfy the Strickland test for ineffective assistance of counsel.

         BACKGROUND

         Petitioner agreed to plead guilty to conspiracy to possess with intent to distribute methamphetamine pursuant to a written plea agreement with the Government. He also agreed to waive his right to appeal his sentence or to attack his sentence collaterally under § 2255.

         The United States Probation Office then prepared a presentence investigation report (“PSR”) that assigned a base offense level of 38. It also added two levels on finding that Petitioner possessed a firearm during the commission of the offense. Petitioner received downward adjustments for his acceptance of responsibility, which resulted in a total offense level of thirty-seven. The Court adopted the PSR without change and sentenced Petitioner to a term of imprisonment of 235 months and thirty-six months' supervised release. Petitioner did not appeal his conviction or sentence.

         Petitioner sets forth five grounds for relief in his § 2255 Motion, although several of the grounds overlap. In ground one, Petitioner states that his trial counsel was ineffective in failing to “explain the difference between a binding plea and non-binding plea” as well as the consequences of a binding or non-binding plea, such that his plea was not knowing and voluntary. (Motion at 5, ECF No. 47). In ground two, Petitioner complains of his trial counsel's alleged “failure to explain what an open plea was and that the judge could not impose the top end of his charge.” (Id. at 6). In ground three, Petitioner claims that his trial counsel was ineffective in failing to consider Petitioner's “limited education and his lack of knowledge and knowing anything about the justice system or sentencing laws or . . . the language the court used.” (Id. at 7). He claims he “never [understood] the factual aspect that went on with any negotiation or bargaining that counsel had with the courts.” (Id.) He further claims that he merely told the Court what his attorney told him to say and that his trial counsel told him not to ask the Court any questions. He also asserts that his attorney told him to say that “he fully understood what was going on.” (Id.)

         In ground four, Petitioner asserts that his trial counsel told him he was eligible for the safety valve, but failed to request the safety valve from the Court. Petitioner claims:

The movant did not engage in any direct extensive bargaining with the court, but his counsel did. Movant under oath only declared . . . that he understood what his counsel had told him to say. His counsel told him he had to agree with what the court was going to ask him and that thei [sic] will not stall his hearing of [sic] set it off. Movant did not understand that he could [have withdrawn] his plea at the time. There was [sic] promises and coercion that went on with movant to take this open plea.

(Id. at 9). In ground five, Petitioner once again argues that his trial counsel failed to explain the difference between a binding plea and a non-binding plea, and he reiterates that his plea was not knowing and voluntary.

         Petitioner's trial counsel, Ramiro Orozco, responded to the allegations on April 5, 2017.[1] The Government filed its response on May 5, 2017.

         DISCUSSION

         28 U.S.C. § 2255(a) provides four grounds for relief: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and (4) that the sentence is otherwise “subject to collateral attack.” A defendant may, as part of a plea agreement, waive the right to appeal and the right to seek post-conviction relief, including relief pursuant to § 2255. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

         Where, as here, a defendant has pleaded guilty and waived his right to appeal or file a motion pursuant to § 2255, the only ineffective assistance of counsel claim to survive the waiver is one claiming the ineffective assistance “directly affected the validity of waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). The waiver therefore remains valid as to all other claims of ineffective assistance. Thus, the Court asks “whether the plea or waiver itself was knowing and voluntary, and whether the issue challenged on appeal may properly be the subject of waiver. ...


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