United States District Court, N.D. Georgia, Rome Division
FINAL REPORT AND RECOMMENDATION MOTION TO VACATE 28 U.S.C. § 2255
WALTER E. JOHNSON, Magistrate Judge.
This matter has been submitted to the undersigned Magistrate Judge for consideration of movant April Flood's pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255  ("Motion to Vacate"), as amended  ("Amended Motion"), and the government's Response . Following a December 12, 2014 evidentiary hearing [69 and 70], and having considered the evidence presented and the parties' post-hearing briefs [71 and 76], the undersigned RECOMMENDS that the Motion to Vacate, as amended, be DENIED, and that the Court DECLINE to issue a certificate of appealability.
I. PROCEDURAL HISTORY
A federal grand jury returned an eight-count indictment against Ms. Flood charging her in Counts One through Four and Count Six with distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and (b)(1)(C); in Count Five with possession with intent to distribute methamphetamine, in violation of §§ 841(a)(1) and (b)(1)(B)(viii); in Count Seven with using and maintaining places for the purpose of distributing methamphetamine, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and in Count Eight with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Indict. .) Ms. Flood entered a binding guilty plea to Count Five, pursuant to a negotiated plea agreement in which the government agreed to dismiss any and all remaining counts. (Guilty Plea & Plea Agreement ; Plea Tr. .) The plea agreement set forth the parties' agreement regarding forfeiture of assets and property, which included the forfeiture of Ms. Flood's real property located at 826 Old Highway 411, Chatsworth, Georgia. (Guilty Plea & Plea Agreement 9-13.) The plea agreement further set forth the parties' agreement to recommend jointly, among other things, that the applicable base offense level was 32 and that the appropriate disposition of the case was a sentence of 120 months of imprisonment. (Id. at 6-7.)
The plea agreement also included an appeal waiver provision, which provided that Ms. Flood
voluntarily and expressly waives the right to appeal her conviction and sentence and the right to collaterally attack her 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, except that [Ms. Flood] may file a direct appeal of an upward departure or upward variance from the Sentencing Guideline range as calculated by the district court.
(Guilty Plea & Plea Agreement 16-17.) This provision of the plea agreement further provided that Ms. Flood could file a cross appeal if the government appealed the sentence. (Id. at 17.) Ms. Flood signed the plea agreement and a separate certification section, which states in relevant part:
I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding. No one has threatened or forced me to plead guilty, and no promises or inducements have been made to me other than those discussed in the Plea Agreement.
(Id. at 18-20.)
At the plea hearing, Ms. Flood was sworn in and confirmed that she understood the nature of the charge against her and that she had talked it over with her attorney. (Plea Tr. 3-4.) Ms. Flood also acknowledged that she had read and discussed the plea agreement with her attorney. (Id. at 4.) The Court then explained to Ms. Flood the rights she was giving up in pleading guilty, and Ms. Flood stated that she understood. (Id. at 5-8.) Ms. Flood also understood that she faced a possible maximum sentence of life imprisonment and a mandatory minimum sentence of ten years of imprisonment. (Id. at 8-9.) Ms. Flood confirmed her agreement that 120 months of imprisonment was a reasonable sentence in this case. (Id. at 12.) Ms. Flood further understood that her real property would be forfeited. (Id. at 9, 12.) The Court explained that it would take into account the sentencing guidelines and other factors to determine whether the sentence the parties had agreed to was reasonable and that Ms. Flood would have an opportunity to withdraw her plea if the Court elected not to accept the agreed upon sentence. (Id. at 9-12, 14.) The Court then reviewed the terms of the appeal waiver provision of the plea agreement and its consequences, and Ms. Flood affirmed that she understood the effect of the waiver. (Id. at 14.) Ms. Flood then confirmed that no one had promised her anything not included in the plea agreement or threatened her to plead guilty. (Id. at 15.) Ms. Flood stated that she had discussed the matter fully with her attorney. (Id.) The prosecutor then summarized what the evidence would show if the case went to trial, and Ms. Flood agreed with those facts. (Id. at 16-17.)
At the sentencing hearing, the Court approved the plea agreement, determined that Ms. Flood's guideline range was 135 to 168 months of imprisonment, and sentenced Ms. Flood to the agreed upon sentence of 120 months of imprisonment. (Sentencing Hr'g Tr.  5-7; J. .) Ms. Flood did not file a direct appeal.
Ms. Flood timely filed the instant Motion to Vacate. As grounds for relief, Ms. Flood alleges that: (1) her guilty plea was involuntary based on ineffective assistance of counsel because her attorney misinformed her regarding the criminal forfeiture of her real property, thus, coercing her to plead guilty, and then refused to move to withdraw the plea; (2) her attorney refused to seek the recusal of Senior United States District Judge Robert L. Vining, Jr.; (3) counsel further provided her ineffective assistance at sentencing by failing to (a) object to the base offense level of 32 based on the "actual" weight of the drugs, (b) object to the criminal history category, (c) object to the 21 U.S.C. § 851 enhancement, and (d) seek a downward departure based on Ms. Flood's history of physical abuse; (4) her attorney "refused to... represent Flood in her appeals as [counsel] implied she would do during sentencing"; and (5) counsel was ineffective for failing to (a) present evidence regarding the government informant's lack of credibility, (b) challenge the warrantless search, and (c) explain the plea, sentencing guidelines, and mandatory minimum sentence to Ms. Flood. (Mot. Vacate 4-5, 7-8, 11; Mem. [48-1] at 2-5; Am. Mot.; Letter 1-2.) The government responds that Ms. Flood's claim that counsel failed to file a notice of appeal requires an evidentiary hearing, that her claims challenging the validity of her guilty plea lack merit, and that her remaining claims are barred by her valid appeal waiver and further lack merit. (Resp. 8-25.)
The undersigned appointed counsel to represent Ms. Flood and conducted an evidentiary hearing on December 12, 2014. (Evidentiary Hr'g Tr. .) In her counseled post-hearing brief, Ms. Flood argues that her attorney was ineffective for failing properly to advise her of her right to appeal because the attorney stated only that Ms. Flood had waived her right to appeal. (Movant's Br.  11-13.) The government responds that counsel adequately consulted with Ms. Flood regarding her appellate rights and that, in any event, counsel had no duty to consult with Ms. Flood about an appeal because Ms. Flood had no non-frivolous grounds for an appeal and had not reasonably demonstrated that she was interested in appealing. (Gov't Br.  2, 8-12.) ...