United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT GAIL
OWENS' MOTION  TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C.
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Gail Owens' Motion  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  is
not well taken and should be denied without an evidentiary
Defendant's guilty plea
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  at 1-2. Owens was charged along with
four other individuals, including her male companion, Charles
MacGeorge. Id. After the Court issued an Order 
disqualifying Owens' retained attorney on June 26, 2012,
attorney Ellen Allred was appointed as Owens' counsel.
Entry of Appearance .
Ms. Allred, Owens filed a Notice of Intent to Change Plea to
Guilty  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 . 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 . 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 , 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 , 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
; Minute Entry, Oct. 29, 2012.
written Plea Agreement  and Plea Supplement (Sealed)
 (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  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.  at 14. On
March 12, 2013, the Court sentenced Owens to a term of 240
months imprisonment. Minute Entry, Mar. 12, 2013; J. .
Defendant's first Motion under 28 U.S.C. §
March 17, 2014, Owens, proceeding pro se, filed her first
Motion to Vacate  pursuant to 28 U.S.C. § 2255,
followed by an Amended Motion to Vacate  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.  at 14-16. Both of
Owens' former counsel submitted Affidavits  
stating that Owens did not instruct them to file an appeal.
Hollomon Aff.  at 3; Allred Aff.  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
 at 5-6; Text Order, Sept. 24, 2015. Owens then timely
filed a Notice of Appeal .
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.
Defendant's present Motion under 28 U.S.C. §
April 17, 2018, Defendant filed the present Motion  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  of Law in
Support. Def.'s Mot. ; 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.
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. 
at 4; Def.'s Mem.  at 1-2; Def.'s Decl. [256-1]
at 2. In her accompanying Memorandum , Owens argues that
despite her representations made under oath before the Court
to the contrary, her attorney induced her with erroneous
guarantees. Mem.  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
Allred filed a Response  to Owens' Motion  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.  at 2. Allred incorporates
her earlier Response , 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.
 at 3. In its brief Response , the Government
argues that Owens waived her right to contest the conviction
in a motion brought under 28 U.S.C. § 2255. Government
Resp.  at 2-4. In Reply  to the Government's
Response , Owens cites Fifth Circuit precedent ...