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United States v. Williams

United States District Court, E.D. Virginia, Richmond Division

November 17, 2016

UNITED STATES OF AMERICA
v.
DION L. WILLIAMS, Petitioner.

          MEMORANDUM OPINION (ACCEPTING REPORT AND RECOMMENDATION AND DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE.

         Dion L. Williams, a federal inmate, filed this 28 U.S.C. § 2255 Motion to vacate, set aside, or correct his sentence ("§ 2255 Motion") wherein he claimed that counsel had failed to file an appeal as directed. The Court referred that claim to the Magistrate Judge for an evidentiary hearing. The matter is before the Court for review of the Magistrate Judge's proposed findings, set forth below in Parts I through V, and Williams's objections to those findings. The Court has reviewed the record, including the transcript of the evidentiary hearing conducted by the Magistrate Judge. For the reasons set forth below, the Report and Recommendation will be accepted and adopted.

         I. Factual and Procedural Background

         On April 3, 2012, a federal grand jury indicted Williams and eight others in a three-count indictment, charging Williams in Count One with conspiracy to possess with intent to distribute five kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. § 846, and in Count Two with attempting to possess with intent to distribute five kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. (ECF No. 3.) The case was assigned initially to the Honorable United States District Judge James R. Spencer but was reassigned in December 2012 to the Honorable United States District Judge Henry E. Hudson. On September 4, 2012, after Williams's arraignment was scheduled to take place on September 27, 2016, John LaFratta was appointed as counsel for Williams. (ECF No. 102.) Williams was arraigned on September 27, 2012, and he pled not guilty. (ECF No. 112.) His and his co-defendants' motions for a continuance beyond the speedy trial deadline were granted (ECF Nos. 112-115), and an agreed discovery order and a protective order were entered. (ECF Nos. 116, 117.)

         On November 7, 2012, a superseding indictment, adding an additional defendant, was returned against Williams and others. (ECF No. 156.) The charges against Williams were the same as in the original indictment. Williams was arraigned on the charges in the superseding indictment on November 16, 2012, and he pled not guilty. (ECF No. 171.) On December 4, 2012, Williams moved to change LaFratta's status from court appointed to retained as local counsel, and the motion was granted on December 6, 2012. (ECF Nos. 196, 197.) Williams also retained Kenneth Ravenell and Milin Chun to represent him. (ECF Nos. 198-201.)

         On December 17, 2012, Ravenell filed on behalf of Williams a motion to change venue and a motion to suppress. (ECF Nos. 204, 205.) On January 4, 2013, the district court issued a memorandum opinion and order denying the motion to change venue. (ECF No. 226.) On January 7, 2013, Ravenell filed on behalf of Williams a motion for reconsideration of the change of venue. (ECF No. 232.) The district court denied the motion for reconsideration the same day. (ECF No. 233.) On January 10, 2013, the district court held a hearing on the motion to suppress and denied the motion at the conclusion of the hearing. (ECF No. 239.) An order reflecting the district court's ruling was issued on January 18, 2013. (ECF No. 264.)

         The docket report for this criminal case reflects that, on January 14, 2013, a plea hearing for Williams was scheduled to take place on January 17, 2013. On January 17, when the parties appeared for the plea hearing, Ravenell first raised a preliminary matter with Judge Hudson, described facts regarding the Richmond connection to the case that had been clarified by a witness and the United States, and again asked Judge Hudson to reconsider the denial of the motion to change venue. (Guilty Plea Hr'g Tr. 2:15-5:16, ECF No. 354.) Judge Hudson considered Ravenell's argument but stated that the renewed motion to change venue would be denied. Ravenell asked for a brief recess to confer with Williams, and Judge Hudson granted that request. (Guilty Plea Hr'g Tr. 5:17-6:4, ECF No. 354.)

         After the recess, Williams appeared before Judge Hudson and pled guilty to Count One of the superseding indictment with a written plea agreement that was reviewed and signed by counsel and Williams. (Guilty Plea Hr'g Tr. 23:21-25:2, ECF No. 354; Plea Agreement, ECF No. 259.) Williams and counsel also reviewed and signed the written statement of facts. (Guilty Plea Hr'g Tr. 22:3-23, ECF No. 354; Statement of Facts, ECF No. 260.) The district court scheduled Williams's sentencing for April 19, 2013. (Guilty Plea Hr'g Tr. 25:3-22, ECF No. 354.) On April 19, 2013, Judge Hudson sentenced Williams to 252 months of imprisonment on Count One, to be followed by five years of supervised release. (Sentencing Hr'g Tr. 39:13-15, ECF No. 355; Judgment in a Criminal Case, ECF No. 315.) Williams did not appeal.

         On May 12, 2014, the district court received Williams's § 2255 motion asserting that his trial counsel was ineffective for failing to file a notice of appeal. (§ 2255 Motion 1, ECF No. 358.) By Memorandum Order entered May 27, 2014, the district court ordered the United States Attorney to file a fully briefed response to the § 2255 motion within sixty days. (ECF No. 359.) On July 24, 2014, a response was filed. (ECF No. 363.) The petitioner filed a reply to the response on September 3, 2014. (ECF No. 364.)

         On October 9, 2015, Williams filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c). (ECF No. 405.) The district court granted the motion based on a sentencing range from the United States Sentencing Guidelines that had been lowered and made retroactive, reducing Williams's sentence from 252 months to 202 months. (ECF No. 418.)

         On November 19, 2015, the district court referred Williams's ineffective assistance of counsel claim to the undersigned Magistrate Judge for an evidentiary hearing. (ECF No. 426.) On December 14, 2015, the petitioner requested additional time to file his response, and the district court granted that request. (ECF Nos. 427, 428.) Counsel was appointed to represent Williams with regard to the ineffective assistance of counsel claim. (ECF Nos. 436, 440.) By Order entered March 8, 2016, the evidentiary hearing was scheduled, and the parties were instructed to submit proposed findings of fact and conclusions of law before the evidentiary hearing and revised findings no later than eleven days after the filing of the transcript of the hearing. (ECF No. 446.)

         On April 4, 2016, the evidentiary hearing was held before the undersigned. The transcript of the evidentiary hearing was filed on April 15, 2016. (ECF No. 463.) On April 25, 2016, Williams filed his revised proposed findings of fact and conclusions of law. (ECF No. 465.) The United States filed its revised proposed findings of fact and conclusions of law on the same day. (ECF No. 466.)

         II. Standard of Review and Burden of Proof

         A petitioner collaterally attacking his or her conviction bears the burden of proving that the conviction imposed violated the United States Constitution or laws, that the court lacked jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack. 28 U.S.C. § 2255. The petitioner has the burden of proving the grounds for the collateral attack by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967); White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004). In a § 2255 proceeding, a court may hold an evidentiary hearing to "determine the issues and make findings of fact and conclusions of law." 28 U.S.C. § 2255(b). When making findings of fact, the court should determine the credibility of witnesses and reliability of other evidence. See United States v. Roane, 378 F.3d 382, 393-94, 409 n.15 (4th Cir. 2004).

         III. Findings of Fact

         Supplementing the procedural events above, the Court makes the following findings of fact based on the record, as well as the testimony and exhibits submitted at the evidentiary hearing.

         A. Williams's Guilty Plea

         1. On January 17, 2013, Judge Hudson conducted Williams's plea colloquy, during which Williams pled guilty to Count One of the superseding indictment, with a written plea agreement and a written statement of facts. (ECF Nos. 259, 260, 354.) The transcript of the plea hearing (ECF No. 354) and the plea agreement (ECF No. 259) were admitted into evidence at the evidentiary hearing as Government's Exhibits 1 and 2 respectively, having also been filed as ECF Nos. 455-1 and 455-2 respectively.

         2. Under oath at the plea hearing, Williams informed the district court that he had a sufficient opportunity to discuss the case with Ravenell and that he was satisfied with Ravenell's representation:

The Court: Prior to coming to court this afternoon, have you had a thorough opportunity to discuss this case with your attorney, Mr. Ravenell?
Mr. Williams: Yes, sir.
The Court: Are you entirely satisfied with his services? Mr. Williams: Yes, sir.
The Court: Has he done everything reasonable you have asked him to do in connection with this case? Mr. Williams: Yes, sir.

(Guilty Plea Hr'g Tr. 8:11-20, ECF No. 354.)

         3. Williams confirmed that he decided to plead guilty to the charge because he was in fact guilty of conspiracy to distribute cocaine hydrochloride. (Guilty Plea Hr'g Tr. 11:2-5, ECF No. 354.)

         4. Williams signed the written plea agreement, indicating that he "agree[d]" [he had] consulted with [his] attorney and fully understood] all rights with respect to the pending criminal indictment." (Plea Agreement 10, ECF No. 259.) He signed the plea agreement, acknowledging he "read this plea agreement and carefully reviewed every part of it with [his] attorney. [He] [understood] this agreement and voluntarily agree[d] to it." (Id.) Williams also confirmed this under oath during the plea colloquy, responding "yes, sir" when asked if he had an opportunity to discuss the agreement with his attorney, and responding "no, sir" when asked if there was anything about the agreement that he did not understand. (Guilty Plea Hr'gTr. 11:10-12:6, ECF No. 354.)

         5. Williams signed the statement of facts, indicating that he had "consulted] with [his] attorney and [he] stipulate[d] that the above Statement of Facts is true and accurate, and that had the matter proceeded to trial, the United States would have proven the same beyond a reasonable doubt." (Statement of Facts 3, ECF No. 260.) Williams also confirmed this under oath during questioning in the plea hearing. (Guilty Plea Hr'g Tr. 22:6-23, ECF No. 354.)

         6. During the plea colloquy, Judge Hudson informed Williams of the penalties associated with the charge: "[The charge] carries a mandatory minimum of 10 [years], a maximum of life, a fine not to exceed $10 million, and five years of supervised release. You understand that supervised release is kind of like being on parole?" Williams replied in the affirmative. Judge Hudson continued, "And a special assessment of $100." (Guilty Plea Hr'g Tr. 18:10-21, ECF No. 354.) Williams confirmed that he knew he was facing at least ten years in prison. (Guilty Plea Hr'g Tr. 18:14-15, ECF No. 354.) The plea agreement listed these penalties as well. (Plea Agreement ¶1, ECF No. 259.)

         7. The plea agreement provided that there was no agreement as to sentencing that was binding on the sentencing judge, that the sentencing judge would determine Williams's sentence, advised by the Sentencing Guidelines and 18 U.S.C. § 3553(a), and that the sentencing judge could depart upward or downward from the advisory range under the Sentencing Guidelines if appropriate, "subject only to review by higher courts for reasonableness." (Plea Agreement ¶ 5, ECF No. 259.) The plea agreement also explained that any estimate of the ultimate sentence "is a prediction, not a promise, and is not binding on the United States, the Probation Office, or the Court." (Id.) Judge Hudson orally informed Williams that any estimate regarding the ultimate sentence imposed could only be an "educated estimate" but did not constitute a basis on which Williams could attempt to withdraw his guilty plea. (Guilty Plea Hr'g Tr. 20:6-24, ECF No. 354.) Judge Hudson also addressed the bolded portion of paragraph 5 of the plea agreement that states that the United States and Williams recommend a number of provisions of the Sentencing Guidelines, pursuant to Fed. R. Crim. P. 11(c)(1)(B) (Guilty Plea Hr'g Tr. 12:20-25, ECF No. 354), and he specifically addressed the statement in paragraph 5 of the plea agreement that the United States agrees to recommend a sentence no higher than the mid-range of the advisory range based on the Sentencing Guidelines. (Guilty Plea Hr'g Tr. 16:19-17:10, ECF No. 354).

         8. Williams stated under oath that no one had made any other promises, other than those contained in the plea agreement. (Guilty Plea Hr'g Tr. 12:2-6, ECF No. 354.) The plea agreement also states that "the defendant and the defendant's attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in writing in this plea agreement, to cause the defendant to plead guilty." (Plea Agreement ¶ 15, ECF No. 259.)

         9. The plea agreement contained a waiver of appeal provision that stated that "the defendant knowingly waives the right to appeal the conviction and any sentence within the statutory maximum described above (or the manner in which that sentence was determined)." (Plea Agreement ¶ 6, ECF No. 259.) Judge Hudson questioned Williams about this appeal waiver several times during the plea colloquy, first stating, "A plea of guilty is final and cannot be appealed, " and then asking, "Do you understand you can't appeal a guilty plea?" Williams answered, "Yes, sir." (Guilty Plea Hr'g Tr. 15:17-22, ECF No. 354.) Judge Hudson reminded Williams again later during the colloquy that he could not appeal but that the United States could appeal, stating, "They [the United States] can appeal, but you've waived your right of appeal. Do you have any questions about that?" Williams responded, "No, sir." (Guilty Plea Hr'g Tr. 21:4-21, ECF No. 354.)

         10. Prior to taking the guilty plea, Judge Hudson asked Williams if there was anything they had gone over that he did not understand, to which Williams responded, "No, sir, " and Judge Hudson gave Williams a final opportunity to ask any questions about the plea agreement, asking Williams if he had "any questions [he] would like to ask [Judge Hudson] about [his] plea of guilty, or the Constitutional rights [he had] waived this afternoon, " to which Williams again responded, "No, sir." Judge Hudson also asked Williams if he needed any more time to confer with Ravenell before he entered his plea of guilty, to which Williams responded, "No, sir." Judge Hudson asked Williams if anyone instructed him how to answer the questions during the plea colloquy, and Williams responded, "No, sir." Williams entered a plea of guilty to Count One of the superseding indictment, and Judge Hudson accepted Williams's plea of guilty as voluntarily, knowingly, and intelligently entered with the understanding of the nature of the charge, the consequences of the plea, and the penalty provisions he faced. (Guilty Plea Hr'g Tr. 23:10-25:2, ECF No. 354.)

         B. Williams's Sentencing Hearing

         11. At Williams's April 19, 2013 sentencing hearing, Williams objected to paragraphs thirty-two through thirty-nine of the Presentence Investigation Report ("PSR"). (Sent. Hr'g Tr. 4:9-10, ECF No. 355.) Judge Hudson overruled Williams's objection on the grounds that the contested paragraphs were a part of the overall investigation but stated that the information would not be considered in sentencing Williams. (Sent. Hr'g Tr. 6:20-7:1, ECF No. 355.) The transcript of the sentencing hearing (ECF No. 355) was admitted into evidence at the evidentiary hearing as Exhibit 2 by Williams, having been filed as ECF No. 459-1. (Evid. Hr'g Tr. 36:11-37:11, ECF No. 463.)

         12. Judge Hudson found, pursuant to the PSR, that Williams's total offense level was 37 and that his criminal history placed him within criminal history category II, which yielded an advisory Sentencing Guidelines range of 235 to 293 months of imprisonment. (Sent. Hr'g Tr. 7:24-8:2, ECF No. 355.)

         13. Ravenell confirmed that he believed the Sentencing Guidelines were properly computed. (Sent. Hr'g Tr. 8:3-5, ECF No. 355.)

         14. During its argument as to the appropriate sentence for Williams, the United States asked Judge Hudson to sentence Williams to 264 months of imprisonment, in the middle of the advisory range, as provided in paragraph 5 of the plea agreement. (Sent. Hr'g Tr. 15:6-10, ECF No. 355.)

         15. The defense presented Wayne Epps to provide testimony in support of Williams's motion for a downward variance at the sentencing hearing. (Sent. Hr'g Tr. 9:5-14:12, ECF No. 355.)

         16. Ravenell asked Judson Hudson to grant a downward variance from the advisory range and sentence Williams to 180 months imprisonment. (Sent. Hr'g Tr. 28:9-10, ECF No. 355.) The United States argued in opposition to the downward variance. (Sent. Hr'g Tr. 15:18-19:11, ECF No. 355.) After hearing the evidence presented and the argument from both parties, ...


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