Opinion
Nos. 3-03-CR-0249-H, 3-04-CV-2318-H.
January 19, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Michael A. Larry, appearing pro se, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be denied.
I.
Defendant pled guilty to a two-count information charging him with bank robbery in violation of 18 U.S.C. § 2113(a). Punishment was assessed at 180 months confinement followed by supervised release for a period of three years. The district court also ordered restitution in the amount of $1,890.00. No appeal was taken. Instead, defendant now seeks post-conviction relief under 28 U.S.C. § 2255.
II.
In two grounds for relief, defendant argues that: (1) his sentence was enhanced by factors not alleged in the indictment or determined by a jury as required by Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and (2) his attorney misrepresented that he would not be subject to a sentencing enhancement as an armed career criminal.
A.
Defendant first contends that his sentence violates Blakely. In Blakely, a majority of the Supreme Court held that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which was based on facts neither admitted by the defendant nor found by a jury, violated the Sixth Amendment to the United States Constitution. See Blakely, 124 S.Ct. at 2538. The Supreme Court recently extended its holding in Blakely to invalidate the mandatory nature of the federal sentencing guidelines. United States v. Booker, ___ S.Ct. ___, 2005 WL 50108 at *15 (U.S. Jan. 12, 2005). However, nothing in Booker or Blakely suggests that those rulings apply retroactively. To the contrary, Booker expressly holds that the decision applies "to all cases on direct review." Booker, 2005 WL 50108 at *29 (Breyer, J.), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, ___, 93 L.Ed.2d 649 (1987) (emphasis added). See also In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (holding that Blakely is not applicable to cases already final); United States v. Juarez, 2004 WL 2965029 at *2 (N.D. Tex. Dec. 8, 2004) (same); United States v. Montana, 2004 WL 2996963 at *1 (N.D. Ill. Dec. 23, 2004) ("[N]othing suggests any likelihood that the Supreme Court's ruling in [ Booker] will include a retroactive application and extension of the Blakely principles that would open up for potential revision the many thousands of long-ago-imposed sentences such as [defendant's].").Because both Booker and Blakely involve new rules of criminal procedure, neither decision applies retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.3d 334 (1989). Defendant is not entitled to post-conviction relief on this ground.
Teague prohibits the application of new rules of criminal procedure on collateral review, except where the new rule places certain kinds of conduct beyond the power of the government to proscribe or requires the observance of procedures that are "implicit in the concept of ordered liberty." Teague, 109 S.Ct. at 1073. Neither exception is applicable here.
B.
Defendant also complains that his lawyer misrepresented that he would not be subject to a sentencing enhancement as an armed career criminal. A guilty plea may be involuntary when an attorney "materially misinforms" the defendant of the consequences of his plea or the probable disposition of the case. United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990), cert. denied, 111 S.Ct. 1079 (1991); see also United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983). However, misinformation about the likely period of incarceration does not vitiate a plea where the defendant has been advised of the maximum penalty for the offense. See United States Gracia, 983 F.2d 625, 629 (5th Cir. 1993); United States v. Jones, 905 F.2d 867, 868 (5th Cir. 1990). In order to obtain post-conviction relief, a defendant must prove that he would not have pled guilty and insisted on going to trial but for the misleading and deficient advice given by his attorney. See United States v. Morales-Sosa, 2001 WL 169594 at *2 (N.D. Tex. Jan. 16, 2001), citing Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985).Defendant fails to allege, much less prove, that his guilty plea was induced by representations about the federal sentencing guidelines pertaining to armed career criminals. At rearraignment, counsel advised defendant that the maximum statutory penalty for the offense was 40 years confinement, followed by a supervised release term of two or three years, and a possible fine of $500,000 or twice the pecuniary gain to the defendant or loss to the victim. (Gov't App. at 006). When asked by the trial judge whether anyone had made any promises in return for his guilty plea, defendant responded, "No, sir." (Gov't App. at 007). This sworn testimony carries a strong presumption of veracity in a subsequent habeas proceeding. See United States v. Rivas-Martinez, 2002 WL 31770478 at *2 (N.D. Tex. Dec. 5, 2002), citing Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).
Moreover, even had defendant known that his sentence would be enhanced as an armed career criminal, the court is not convinced that he would have insisted on a trial. Defendant received a six-level enhancement because he was at least 18 years old at the time of the instant offense, the offense of conviction involved a crime of violence, and he had at least two prior felony convictions for crimes of violence. ( See PSR at 5, ¶ 41, citing U.S.S.G. § 4B1.1(b)(C)). This mandatory enhancement would have applied regardless of whether defendant pled guilty or was convicted by a jury. By pleading guilty, defendant was able to receive a three-level reduction for acceptance of responsibility. ( Id. at 6, ¶ 42, citing U.S.S.G. § 3E1.1(a) (b)). Given the overwhelming evidence against defendant and the likelihood of a conviction, the court cannot conclude that he would have risked losing this three-level reduction by insisting on a trial.
In the factual resume signed by defendant, he admitted robbing two different Wells Fargo banks on June 3, 2003 and June 16, 2003. Defendant told at least one teller he had a gun. ( See Fact. Res. at 2-3).
RECOMMENDATION
Defendant's motion to correct, vacate, or set aside his sentence should be denied.