United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States.
Francis David Sherman, Pro Se Defendant.
JAMES P. JONES, District Judge.
The defendant, Francis David Sherman, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. After review of the record, I find that Sherman's § 2255 claims are without merit and must be dismissed.
Defendant Sherman was charged in this court with failing to register and update his sex offender registration (Count One), transporting a stolen motor vehicle in interstate commerce (Count Two), and credit card fraud (Count Three). The charges arose from evidence that Sherman stole a credit card and a car belonging to his girlfriend's mother, left Virginia with the girlfriend and traveled to Wyoming, where the car broke down, and then hitchhiked with the girlfriend into Canada, where authorities arrested Sherman in September of 2010.
On August 3, 2011, Sherman pleaded guilty to Counts Two and Three, pursuant to a written Plea Agreement, and in exchange, the government agreed to dismiss the sex offender crime (Count One), which reduced Sherman's sentence exposure under the United States Sentencing Guidelines Manual ("USSG"). Under the agreement, the parties stipulated to a Total Offense Level of 4 and Criminal History Category of VI, resulting in an advisory custody range of 6 to 12 months. In addition, the Plea Agreement included the following stipulation:
I understand the United States retains its right to seek a sentence outside of the applicable guideline range. I understand and acknowledge that the United States intends at sentencing to ask the court for an Upward Variance, and an Upward Departure based upon: 1) my under-represented criminal history and the inadequacy of my criminal history (U.S.S.G. § 4A1.3); 2) conduct underlying Count 1, which was dismissed as part of my plea agreement (U.S.S.G. § 2K2.21). I waive further notice of the government's intention to seek an Upward Variance and/or Upward Departure.
(Plea Agreement ¶ B.2.) The agreement also included Sherman's waiver of his right to appeal and his waiver of the right to collaterally attack "any order issued in this matter, unless such attack is based on ineffective assistance of counsel." (Plea Agreement ¶ C.2, ) Under the agreement, Sherman also stated that, at that time, he had "no dissatisfaction or complaint with [his] attorney's representation, " that he would notify the court "no later than at the time of sentencing [of] any dissatisfaction or complaint [he might] have with [his] attorney's representation, " and that he understood he would have no right to withdraw the guilty plea if the sentence was more severe than he expected. (Plea Agreement ¶¶ E.3, E.4.)
During the court's guilty plea colloquy, Sherman affirmed that he was 54 years old, had completed the ninth grade, and could read and write. Sherman denied any recent medical or mental health treatment problems and affirmed that he was not under the influence of any medication or substance that might interfere with his ability to understand the proceedings. Sherman affirmed that he understood the Plea Agreement and its consequences, the elements of the charge, the maximum penalty to which he was subject, and the rights he was waiving by pleading guilty under the agreement. He indicated that he had initialed each page and signed the agreement to show that he had read it after an adequate opportunity to review it with his attorney.
The prosecutor then reviewed the agreement's terms, and Sherman affirmed that he understood the terms, including the government's right to argue for an upward departure from the otherwise applicable guideline range. I expressly asked Sherman if he understood that was waiving his rights to appeal and to collaterally attack the judgment, and he affirmed his understanding. He denied that anyone had threatened him or attempted in any way to force him to plead guilty. I advised him that he faced a maximum sentence of 10 years in prison on each of the charges to which he was pleading guilty, that I would consider the guidelines and other factors and might sentence him above the guideline range, but, even so, he would be bound by his guilty plea. Sherman affirmed his understanding. Sherman also indicated that he did not contest any of the facts offered by the prosecutor in support of the guilty plea. I found that Sherman was competent to plead, that there was an independent factual basis for the plea, and the plea was knowing and voluntary. Accordingly, I accepted the guilty plea.
The Presentence Investigation Report ("PSR") prepared prior to sentencing stated that an upward variance might be warranted based on Sherman's lengthy criminal history. Sherman filed written objections to this recommendation and other portions of the report. At sentencing, the government sought a sentence of 20 years, while Sherman requested a sentence within the guideline range. After a lengthy hearing, during which numerous witnesses testified about Sherman's past conduct and its adverse impact on others, I overruled the majority of Sherman's objections to the PSR and sentenced him to a total term of 144 months imprisonment. See United States v. Sherman, No. 1:10CR00039, 2012 WL 444050 (W.D. Va. Feb. 10, 2012) (resolving objections and setting forth reasons for sentence).
Sherman appealed the sentence. The United States Court of Appeals for the Fourth Circuit granted the government's motion to dismiss, based on the appellate waiver provision in Sherman's Plea Agreement. United States v. Sherman, No. 12-4114 (4th Cir. Nov. 6, 2012), cert. denied, 133 S.Ct. 1608 (2013).
Liberally construed, Sherman's § 2255 motion alleges that counsel was ineffective in some respect, regarding the following issues: (1) the guilty plea was "unlawfully induced" and unknowing; (2) the conviction was obtained "by use of a coerced confession" and the sentence was illegally based on evidence of "offenses not in the indictment"; (3) the conviction was obtained "by use of evidence obtained pursuant to an unlawful arrest" and the sentence was based on "unrelevant testimony"; and (4) "denial of the right to appeal" and court error in misapplying the sentencing guidelines. (2255 Mot. 5-9, ECF No. 158.) The government has moved to ...