United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
GERRILYN G. BRILL, Magistrate Judge.
Movant is a federal prisoner who, through appointed counsel, challenges under 28 U.S.C. § 2255 his convictions for armed bank robbery and unlawful use and possession of a firearm during the robbery. (Doc. 171.) Respondent filed a brief opposing the motion, (Doc. 176), and Movant filed a reply, (Doc. 178). For the reasons discussed below, the motion should be denied.
The bank robbery in this case occurred in October 2006. (Doc. 30.) Movant was indicted in February 2008, (Doc. 11), and a superseding indictment issued the next month, (Doc. 30). Attorney Timothy Saviello represented Movant from February 2008 through sentencing. (Docs. 14, 134.)
On December 15, 2009, a jury trial began. (Doc. 99.) The next day, Movant pled guilty pursuant to a negotiated, binding plea agreement. (Doc. 102-1 ("Plea Agr."); Doc. 108 ("Plea Tr.").)
Movant faced a mandatory sentence of life imprisonment if a jury convicted him of the armed bank robbery. (Plea Agr. at 2.) Movant's binding plea agreement required a sentence of 420 months in prison. ( Id. at 4.)
The plea agreement contained a limited appeal waiver, which precludes Movant from challenging his convictions and sentence, including via § 2255. ( Id. at 8.) The Court discussed that waiver with Movant at the plea hearing, and Movant said he understood and agreed to it. (Plea Tr. at 11-12, 17-18.)
Sentencing was set for April 2010. (Doc. 106.) Prior to sentencing, Movant notified the Court that he wished to withdraw his guilty plea. The Court held a hearing on that issue on April 13, 2010. (Docs. 145, 146.)
Movant told the Court at that hearing that he wanted to withdraw his plea because Saviello told him at trial that he could not bring witnesses to testify on his behalf. (Doc. 145 at 2-3.) Movant said he asked Saviello to subpoena people who worked at a Texaco service station in Ellenwood, Georgia (the location of the bank that was robbed) "during the time" of the bank robbery who might be able to testify that Movant was working on those people's vehicles "during the time." ( Id. at 6-7; Doc. 146 at 5-6.) Movant "was hoping that they could be like an alibi witness to the time where, you know, this thing happened and then where I actually was present at." (Doc. 146 at 4.) Movant did not know any of the purported alibi witnesses' names or how to identify or reach them. (Doc. 145 at 6-7; Doc. 146 at 5.) Movant said he would "know them when I see them, but I don't exactly know their names, " (Doc. 146 at 5), and suggested that Saviello could have gone to the Texaco "and ask, maybe show them a picture of me, " (Doc. 145 at 7.)
Saviello told the Court at the April 2010 hearing that he explored with Movant the possibility of finding alibi witnesses to testify at trial. (Doc. 146 at 10.) He said Movant had told him that he worked on cars at the Texaco as a side job at the time of the bank robbery and "told me that's what he thought he was doing on that particular day." ( Id. at 11.) Saviello recalled that Movant "could not say specifically that it was that exact same date [as the robbery]. He did remember working on some cars for people around that time." ( Id. ) Saviello confirmed that Movant "could not remember their names or exactly what cars he was working on." ( Id. )
Movant did recall the name of a friend who occasionally took him to the Texaco, and he identified that person to Saviello. ( Id. ) Saviello tried to find that person, but was unable to do so as three years had passed from the time of the robbery to when he learned of the person. ( Id. at 12.) Police interviewed the person earlier, though, and obtained a statement from him that contradicted Movant's recollection. ( Id. at 11-12.)
Saviello did not dispute Movant's representation that Saviello never tried to find the unidentified Texaco employees who might have been alibi witnesses. ( Id. at 11-13.) Movant provided no additional information about the potential alibi witnesses, to the Court or Saviello, and did not even say that any of those persons saw him at the Texaco at the time of the bank robbery. ( Id. at 4-13.)
Movant told the Court that Saviello's failure to investigate the potential alibi witnesses left him no "choice but to plead out... I felt like I had no choice but to plead guilty." (Doc. 145 at 3-4.) Movant felt that if he had continued with the trial despite Saviello's failure to investigate the potential alibi witnesses, he would have "end up getting life" imprisonment. ( Id. at 3.)
The Court denied Movant's request to withdraw his guilty plea. ( Id. at 7-8.) The Court later sentenced Movant to 420 months' imprisonment - the sentence Movant agreed to as part of his binding plea agreement. (Docs. 118, 133.) Movant obtained new counsel and appealed, arguing that his guilty plea was involuntary, the Court erroneously denied his request to withdraw the plea, and the plea resulted ...