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Danzell v. United States

United States District Court, W.D. Virginia, Roanoke Division

February 14, 2019

ANDREW DANZELL, Petitioner,
v.
UNITED STATES, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Senior United States District Judge.

         Andrew Danzell, a former federal inmate proceeding pro se, filed this action that the court docketed as a petition for a writ of mandamus under 28 U.S.C. § 1361. After review of the petition and other court records, the court concludes that Danzell is not entitled to mandamus relief and that his petition must be construed as a motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255.

         I. BACKGROUND

         On March 15, 2006, Danzell pleaded guilty, pursuant to a written plea agreement, to Counts One and Two of a four-count superseding indictment: conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine and one count of possession of a firearm in furtherance of a drug trafficking crime. See gen. United States v. Danzell, No. 7:05CR00024. The agreement contemplated a total prison term of 180 months. In exchange for the guilty plea, the government agreed to dismiss the remaining counts, including two other firearms charges, each of which would have subjected Danzell to a mandatory minimum 25-year sentence, to be served consecutively to any other sentence. Paragraph 2 of the plea agreement stated, in part, "I am pleading guilty as described above because I am in fact guilty and because it is in my best interest to do so and not because of any threats or promises."[1] Pet. Ex. AD1, ECF No. 94. Paragraph 8 stated: "I understand that as a result of these convictions I will be subject to deportation from the United States. I agree to cooperate with the authorities in effectuating my deportation, and waive any and all administrative, statutory and constitutional rights I might have to challenge my detention and/or deportation." Id. Danzell did not initial that page of the agreement, but initialed and signed all other pages. Paragraph 22 states, in part:

I have not been coerced, threatened, or promised anything other than the terms of this plea agreement, described above, in exchange for my plea of guilty. . . .
This writing sets forth the entire understanding between the parties and constitutes the complete Plea Agreement between the United States Attorney for the Western District of Virginia and me, and no other additional terms or agreements shall be entered except and unless those other terms or agreements are in writing and signed by the parties.

Id.

         Portions of Danzell's guilty plea hearing could not be transcribed because of a technical malfunction. The existing transcript indicates that Danzell agreed with the accuracy of the government's summary of the evidence against him. Asked if he was satisfied with his attorney's representation, Danzell stated, "Very much. Thank you, Mr. Cargill." Pet. Ex. AD2, at 2, ECF No. 94. The court then stated to Danzell, "This is one of the most important days you will ever experience, because you are telling the Court that you wish to plead guilty to criminal charges that you know are going to result in you serving a period of incarceration of 15 years and in all probability your deportation from the United States." Id. at 3-4. After a short recess for Danzell to confer with counsel, the hearing resumed. The court asked Danzell if he had any further questions of the court or counsel about issues explained during the colloquy, and Danzell answered, "I'm pleased with everything. Yeah." Id. at 4. He then pleaded "[g]uilty as charged," collectively, to Counts One and Two. Id. at 6. The court found him fully competent and aware of the charges and their consequences, found his pleas of guilty to be knowing and voluntary and supported by the facts, and adjudged him guilty.

         The court conducted a sentencing hearing on June 7, 2006, and imposed the sentences contemplated by the plea agreement: 60 months on Count One and 120 months on Count Two, to be served consecutively, and two three-year terms of supervised release, to be served concurrently. While explaining the supervised released terms, the court stated: "That assumes that you are not going to be subject to some deportation act following your period of incarceration. I suspect that you will be, but in the event that you find yourself back in the community back in the United States, you can count on being on supervised release." Danzell, No. 7:05CR00024, Sent. Transc. 19, ECF No. 110. Danzell did not appeal, although he has filed prior post-conviction motions and petitions that the court dismissed.

         In his current petition, Danzell bases his claims on events that allegedly occurred during the portion of the guilty plea hearing that could not be transcribed. He states:

During the explanation of the plea agreement Mr. Wolthuis and Counsel instructed me not to initial page 4 of the plea agreement, and that it will reflect the parties['] full understanding that I will not be deported, [record cite omitted] Counsel told Mr. Wolthuis that he would be required to notify the agency and Mr. Wolthuis replied, it would be done at a later date because court was about to resume in a moment[.] Counsel also pointed out to Mr. Wolthuis, Don, your instructions changed the outcome of the case, and Mr. Wolthuis memorialized it by going back to page 3 of the plea agreement, he omitted the line affected and did place his initials (DRW) next to the part affected, [record cite omitted] During the Plea Hearing, Mr. Wolthuis ensure I will not be deported[.] Mr. Wolthuis representation took place before he laid out the summary of the evidence [which appears in the transcribed portion of the hearing].

         Danzell Unsworn Decl. ¶¶ 4-8, at 47, ECF No. 94. When the court mentioned the probability of deportation, Danzell asked for a recess to meet with counsel and allegedly threatened to continue the jury trial. He alleges that counsel assured him, "[O]nce the Court accept[s] the plea agreement Mr. [W]olthuis representation will be binding on the parties and beyond the power of the Court to alter anything Mr. Wolthuis said." Id. at¶ 11.

         Danzell was released from incarceration to begin serving his three-year term of supervised release on August 17, 2018. See Addendum to Presentence Report, ECF NO. 179. Danzell claims that he is now in the custody of ...


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