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United States v. Frazier

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

November 9, 2017

UNITED STATES OF AMERICA
v.
H. CLAIBORNE FRAZIER DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant H. Claiborne Frazier's Motion to Vacate Under 28 U.S.C. § 2255 (“Motion to Vacate”) [171][181] and Motion for Reconsideration [183]. After considering the submissions of the parties, the record, and the applicable law, the Court finds that these motions are not well taken and should be denied.

         I. BACKGROUND

         Defendant H. Claiborne Frazier (“Defendant”) entered a guilty plea in this action on September 16, 2013. As part of this plea, he waived all rights to direct appeal and post-conviction relief with limited exceptions. He was sentenced on March 7, 2014, after a two-day sentencing hearing. The total offence level found by the Court at the sentencing was 31 which provided for a sentencing range of 108 to 135 months of custody based on his criminal history category of 1. He was sentenced to a term of 60 months which was a significant downward variance.

         II. MOTION TO VACATE [171][181]

         Most of the grounds Defendant raises in his Motion to Vacate [171][181] have been waived under his Plea Agreement [72], which contains a waiver of his right to seek post-conviction relief under § 2255. (See Plea Agreement [72] at ¶ 7.b.) Such waivers are valid as long as they are made knowingly and voluntarily. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Waivers of post-conviction relief, however, may not apply to some, but not all, claims of ineffective assistance of counsel. United States v. White, 307 F.3d 336, 339 (5th Cir. 2002). For ineffective assistance of counsel claims to not be barred by waivers of post-conviction relief, they must allege that the ineffective assistance either rendered the waiver involuntary or that he received ineffective assistance at sentencing. Id.

         Furthermore, because the Fifth Circuit has already considered and decided on direct appeal some of the issues Defendant now attempts to raise on post-conviction relief, relief cannot be granted on those issues. Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

         With these precedents in mind, the Court analyzes each of the grounds raised by Defendant.

         A. Ground One: Plea Agreement was not knowingly and voluntarily made.

         1. Claim 1.1: Defendant did not understand the consequences.

         Defendant argues that he did not understand that, even though the Government has conceded that it would not use any of his conduct related to Travelers in the factual basis in his plea hearing, that they could still use it at sentencing as relevant conduct.

         First of all, the Fifth Circuit has already held on Defendant's direct appeal that the plea agreement specifically allowed for the full amount of loss to be introduced as relevant conduct. See United States v. Frazier, 644 F.App'x 362, 363 (5th Cir. 2016). Second of all, in a letter to Defendant dated the day before he signed the plea agreement, Drew Martin, Defendant's trial cousel, specifically advised him that, even if the Government agreed to limit the factual basis of his plea to the overt acts towards the banks and not mention anything related to Travelers, it could still use the Travelers loss at sentencing as related conduct. (See Martin Affidavit [192] at pp. 11-12.) Finally, at the plea hearing, Defendant affirmed that he understood that other relevant conduct could be considered at sentencing. (See Plea Hearing Transcript [132] at 21:6-9.)

         Based on the record, it is clear that Defendant was well-aware that relevant conduct, including that related to Travelers, could be used at sentencing, and still knowingly and voluntarily entered in the plea agreement. Therefore, the Court will not grant relief on this basis.

         2. Claim 1.2: Defendant unaware he would be ...


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