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Wilson v. United States

United States District Court, N.D. Georgia, Rome Division

December 19, 2014

JOSEPH MONROE WILSON, BOP ID XXXXX-XXX, Movant pro se,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 4:12-CR-23-1-HLM-WEJ

FINAL REPORT AND RECOMMENDATION

WALTER E. JOHNSON, Magistrate Judge.

Proceeding pro se, Joseph Monroe Wilson has filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [104].[1] Because Mr. Wilson executed an enforceable waiver of his right to attack his conviction and sentence under § 2255 (see Plea Agmt. [90] 8), the undersigned RECOMMENDS that Mr. Wilson's Motion be DISMISSED and that a Certificate of Appealability be DENIED.

In 2012, Mr. Wilson was indicted for having (1) "knowingly received one or more visual depictions of minors engaging in sexually explicit conduct... in violation of [18 U.S.C. § 2252(a)(2) and (b)(1)], " and (2) "knowingly possessed a Dell laptop computer that contained one or more visual depictions of minors engaging in sexually explicit conduct, ... in violation of [18 U.S.C. § 2252(a)(4)(B) and (b)(2)]." (Indictment [1] 1-2.)

Mr. Wilson reports that after he was indicted he retained a trio of lawyers (whom he paid "over $120, 000"), a jury consultant (whom he paid "many thousands of non-refundable dollars"), and a forensic expert (whom he paid an undisclosed amount). (Mem. of Law [104-2] 57.) Nonetheless, on the eve of trial, Mr. Wilson elected to plead guilty to Count Two of the Indictment.

Mr. Wilson's Plea Agreement provided: "The Defendant admits that he is pleading guilty because he is in fact guilty of the crime charged in Count Two of the indictment." (Plea Agmt. 1.) The Plea Agreement further provided:

LIMITED WAIVER OF APPEAL: To the maximum extent permitted by federal law, the Defendant voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255) on any ground [with exceptions not relevant here].

(Id. at 8.) In addition, Mr. Wilson signed a Certificate stating:

I have read the indictment against me and discussed it with my attorney. I understand the charges and the elements of each charge that the Government would have to prove to convict me at a trial. I have read the foregoing Plea Agreement and carefully reviewed every part of it with my attorney. I understand the terms and conditions contained in the Plea Agreement and I voluntarily agree to them. I also have discussed with my attorney the rights I may have to appeal or challenge my conviction and sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated therein, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding....

(Id. at 11 (emphasis added).)

The Honorable Robert L. Vining, Jr. accepted Mr. Wilson's plea, and, after calculating that the applicable sentencing range under the United States Sentencing Guidelines was 70 to 87 months, departed downward to impose a 36-month term of imprisonment. (See Sentencing Hr'g Tr. [102] 43-44.) Mr. Wilson did not file a direct appeal. Rather, he has now filed a pro se § 2255 motion.

Direct appeal and collateral attack waivers included in plea agreements are generally enforceable in this circuit. See, e.g., Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (collateral attack waivers); United States v. Bushert, 997 F.2d 1343, 1345 (11th Cir. 1993) (direct appeal waivers). And, "[a] waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues-indeed, it includes a waiver of the right to appeal blatant error." United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).

The prerequisite to enforcement of a direct appeal and/or collateral attack waiver is a finding that it was made "knowingly and voluntarily." Bushert, 997 F.2d at 1352; see also Patel v. United States, 252 F.Appx. 970, 974 (11th Cir. 2007) (per curiam) ("Appeal waivers are valid if they are made knowingly and voluntarily."). In at least two circuits, it appears that the government can establish that the waiver of appeal and/or collateral attack rights was made knowingly and voluntarily simply by pointing to clear language of the sort included in the Plea Agreement and Certificate signed by Mr. Wilson. See, e.g., United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994); United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir. 1994) ("In our view, a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient.").

In the Eleventh Circuit, "[i]n most circumstances, for a sentence appeal waiver to be knowing and voluntary, the district court must have specifically discussed the sentence appeal waiver with the defendant during the Rule 11 hearing." Bushert, 997 F.2d at 1351. In a limited set of cases, a waiver may still be found to have been knowing and voluntary if "the record clearly shows that the defendant otherwise understood the full significance of the waiver." United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).

In examining the Rule 11 hearing transcript, the Eleventh Circuit has instructed district courts that "[t]here is a strong presumption that the statements made during the plea colloquy are true" and that, "[c]onsequently, a defendant bears a heavy burden to show that his statements under oath were false." Patel, 252 F.Appx. at 975 (citations omitted). A defendant's later "self-serving statements [that] appear to be a last-minute attempt to escape the preclusive effect of the appeal waiver, " when "in direct conflict with his statements during the plea colloquy, " and supported by "no evidence to ...


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