United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
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.
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." 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.
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.
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
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].
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.
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 ...