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Owens v. United States

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

January 15, 2019

GAIL OWENS
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT GAIL OWENS' MOTION [252] TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendant Gail Owens' Motion [252] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255. After due consideration of the Motion, the record, and relevant legal authority, the Court finds that Owens' Motion [252] is not well taken and should be denied without an evidentiary hearing.

         I. RELEVANT BACKGROUND

         A. Defendant's guilty plea

         On July 19, 2011, Defendant Gail Owens (“Owens” or “Defendant”) was indicted for conspiracy to possess with intent to distribute oxycodone and possession with intent to distribute oxycodone, all in violation of 21 U.S.C. §§ 841(a)(1) and 846 as well as 18 U.S.C. § 2. Indictment [3] at 1-2. Owens was charged along with four other individuals, including her male companion, Charles MacGeorge. Id. After the Court issued an Order [94] disqualifying Owens' retained attorney on June 26, 2012, attorney Ellen Allred was appointed as Owens' counsel. Entry of Appearance [101].

         Through Ms. Allred, Owens filed a Notice of Intent to Change Plea to Guilty [127] on August 23, 2012, notifying the Court “of her intent to change her plea to guilty on the charge brought against her by the Government.” Notice of Intent to Change Plea to Guilty [110]. Owens was scheduled to enter her guilty plea on September 5, 2012, but was hospitalized in Florida on September 4, 2012. Government's Mot. for Continuance 1 [116]. Owens' criminal trial was rescheduled for November 5, 2012, but, on October 24, 2012, Owens filed a second Notice of Intent to Change Plea to Guilty [128], notifying the Court “of her intent to change her plea to guilty on the charge brought against her by the Government.” See also Text Order, Sept. 13, 2012. On October 29, 2012, pursuant to a written Plea Agreement [129], Defendant pled guilty to Count Four of the Indictment, which charged her with possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Plea Agreement [129]; Minute Entry, Oct. 29, 2012.

         A written Plea Agreement [129] and Plea Supplement (Sealed) [130] (collectively, the “Plea Agreement”) detailed both Defendant's obligations and those of the Government. See Minute Entry, Oct. 29, 2012. The Plea Agreement, signed by Owens and her attorney, stated that Owens understood that the “plea agreement and the plea supplement completely reflects [sic] all promises, agreements and conditions made by and between the [Government] and Defendant.” Plea Agreement [129] at 5. Under oath during the plea colloquy, Owens agreed that no one had “made any other or different promises or assurances of any kind to [her] other than those contained in the plea agreement and plea supplement in an effort to induce [her] to plead guilty in this case.” Plea Tr. [219] at 14. On March 12, 2013, the Court sentenced Owens to a term of 240 months imprisonment. Minute Entry, Mar. 12, 2013; J. [159].

         B. Defendant's first Motion under 28 U.S.C. § 2255

         On March 17, 2014, Owens, proceeding pro se, filed her first Motion to Vacate [177] pursuant to 28 U.S.C. § 2255, followed by an Amended Motion to Vacate [186] on May 8, 2014. Owens claimed “total and complete ineffective assistance of counsel” due in pertinent part to counsel's alleged “failure to read and review” the Presentence Investigation Report with Owens, failure to object to “wrongful enhancements[, ]” and “failure to file an appeal . . . when instructed to do so.” Am. Mot. [186] at 14-16. Both of Owens' former counsel submitted Affidavits [191] [193] stating that Owens did not instruct them to file an appeal. Hollomon Aff. [191] at 3; Allred Aff. [193] at 4. Because there was a conflict in evidence regarding whether Owens had asked her attorneys to pursue an appeal, the Court granted Owens' request to pursue a direct appeal and reinstated the judgment of conviction on its criminal docket. Order [213] at 5-6; Text Order, Sept. 24, 2015. Owens then timely filed a Notice of Appeal [214].

         On direct appeal, Owens argued that her plea was not knowing and voluntary because she lacked the mental capacity to understand and weigh its consequences. United States v. Owens, 667 Fed.Appx. 859 (5th Cir. 2016). On August 8, 2016, the United States Court of Appeals for the Fifth Circuit affirmed this Court's finding that Owens was competent, and held that Owens' appeal waiver in the Plea Agreement was made knowingly and voluntarily. Id. at 861. The Fifth Circuit dismissed her appeal as barred by the appeal waiver. Id. at 861.

         C. Defendant's present Motion under 28 U.S.C. § 2255

         On April 17, 2018, Defendant filed the present Motion [252] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, along with an unsigned Declaration [252-2] and a Memorandum [253] of Law in Support. Def.'s Mot. [252]; see 28 U.S.C. § 2255(f). On April 19, 2018, Owens filed a signed copy of her Declaration [256-1] and a Declaration [256-2] of her daughter, Stephanie Tanner, both of which were signed under penalty of perjury. Def.'s Decl. [256-1]; Tanner Decl. [256-2].

         Owens raises ineffective assistance of counsel as her only ground for relief, claiming that on or about September 4, 2012, with herself and her daughter present, attorney Allred erroneously advised her that “she would receive a ten-year sentence if [she] agreed to plead guilty.” Def.'s Mot. [252] at 4; Def.'s Mem. [253] at 1-2; Def.'s Decl. [256-1] at 2. In her accompanying Memorandum [253], Owens argues that despite her representations made under oath before the Court to the contrary, her attorney induced her with erroneous guarantees. Mem. [253] at 7-9. Owens maintains that “had [she] been properly advised and not misled[, she] would not have agreed to plead guilty and [ ] would have proceeded to trial instead.” Def.'s Decl. [256-1] at 2. Ms. Tanner states that, with her mother, father, father's attorney, and herself present, attorney Allred told her mother that she would receive a 10-year sentence if she pled guilty. Tanner Decl. [256-2] at 2. Tanner could not recall the exact date of the meeting where this statement occurred. Id.

         Attorney Allred filed a Response [257] to Owens' Motion [252] on May 18, 2018, refuting Owens' claims and denying that there were any promises or assurances made that Owens “would not receive a sentence of greater than 10 years.” Allred Resp. [257] at 2. Allred incorporates her earlier Response [193], id., in which she stated that she “in no way coerced Owens into taking a plea” and that Owens chose to plead guilty when the two met with Owens' daughter, co-defendant MacGeorge, and MacGeorge's attorney on October 23, 2012, Allred Resp. [193] at 3. In its brief Response [258], the Government argues that Owens waived her right to contest the conviction in a motion brought under 28 U.S.C. § 2255. Government Resp. [193] at 2-4. In Reply [259] to the Government's Response [258], Owens cites Fifth Circuit precedent ...


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