United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted of conspiracy to commit food stamp fraud, Emory
White seeks 28 U.S.C. § 2255 relief. Doc.
(information); docs. 7, 8 & 14 (waiver of indictment and
plea agreement); doc. 16 (judgment ordering 60 months'
imprisonment and restitution in the amount of $899, 971.20);
see doc. 19 at 8-14 (stating he was merely an
employee following the marching orders of an "unethical
boss" and should not have been subjected to such a harsh
was indicted for conspiring, along with 53 codefendants, to
purchase illegally more than $19 million in benefits from the
Supplemental Nutrition Assistance Program (SNAP) and the
Georgia Women, Infants, and Children (WIC) program for cash.
He was charged with conspiring to use interstate wire
communications to execute a fraudulent scheme in violation of
18 U.S.C. § 1349, and conspiring to launder money in
violation of 18 U.S.C. § 1956. Doc. 3. Both counts
carried with them potential 20-year sentences. Id.
Upon the advice of counsel, movant waived the indictment and
pled guilty to one count of conspiracy to commit mail fraud,
wire fraud, and money laundering in violation of 18 U.S.C.
§ 371. Docs. 8 & 14.
plea hearing, White admitted that as an employee of Wayne
Jackson he purchased WIC vouchers for cash at two separate
stores. Doc. 23 at 27; see afeoPSR ¶ 25. Based
on his lengthy criminal history, movant's total offense
level was set at 35 with a criminal history category of VI,
fetching an advisory guideline range of 292 to 365
months' imprisonment. PSR ¶¶ 28-40, 54, 87.
Pursuant to the negotiated plea agreement, however, the
maximum penalty and guideline range of punishment was
capped at 60 months' incarceration, the
statutory maximum for a violation of 18 U.S.C. § 371.
Id. at ¶¶ 87 & 88. Despite
counsel's request for a departure below the statutory
maximum sentence based on White's minimal role in the
enterprise, the Court sentenced White to 60 months'
imprisonment, the statutory maximum. Docs. 12, 16, 24;
see 18 U.S.C. § 371.
presents three grounds for relief: (1) that his plea was
neither knowingly nor voluntarily made, (2) that the plea
agreement is invalid because it lacked "consideration,
" and (3) ineffective assistance of counsel during the
plea negotiations. Doc. 20.
Knowing and Voluntary Plea
contends, despite his clear testimony to the contrary, that
his guilty plea was not voluntarily, knowingly, or
intelligently given. Doc. 20. "A guilty plea, if induced
by promises or threats which deprive it of the character of a
voluntary act, is void. A conviction based upon such a plea
is open to collateral attack." Machibroda v. United
States, 368 U.S. 487, 493 (1962). At the same time, plea
bargaining retains its benefits of certainty and efficiency
"only if dispositions by guilty plea are accorded a
great measure of finality." Blackledge v.
Allison, 431 U.S. 63, 71 (1977) ("To allow
indiscriminate hearings in federal postconviction proceedings
. . . for federal prisoners under 28 U.S.C. § 2255 . . .
would eliminate the chief virtues of the plea system --
speed, economy, and finality.")- While § 2255
exists "to safeguard a person's freedom from
detention in violation of constitutional guarantees, "
"[m]ore often than not a prisoner has everything to gain
and nothing to lose from filing a collateral attack upon his
guilty plea." Id. at 71-72.
result, "the representations of the defendant, his
lawyer, and the prosecutor at [a plea] hearing, as well as
any findings made by the judge accepting the plea, constitute
a formidable barrier in any subsequent collateral
proceedings." Blackledge, 431 U.S. at 73-74, 80
n. 19 (if the record reflects the procedures of plea
negotiation and includes a verbatim transcript of the plea
colloquy, a petitioner challenging his plea will be entitled
to an evidentiary hearing "only in the most
extraordinary circumstances"). "The subsequent
presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible."
Id. at 74.
contends that his guilty plea was made unknowingly and
involuntarily because (1) his attorney did not fully explain
to him what a guilty plea meant, and (2) his attorney
"induced [his plea] by fraud." Doc. 20 at 10. His
sworn testimony at the Change of Plea and Sentencing
Hearings, however, directly contradicts these
contentions.White swore that he had spoken with his
lawyer about the indictment and information, his guilty plea,
and the plea agreement, and that he understood the charges
against him. Doc. 23 at 13-15. He also testified that he
understood he could receive a prison sentence for his part in
the conspiracy up to five years' imprisonment, a fine up
to $25, 000, and up to three years' supervised release.
Id. at 16-17. And he swore he understood that the
role he played in the conspiracy would be included in the
calculation of his sentence. Id. at 18. Finally, he
testified that no one had predicted or guaranteed any
sentence to him, nor had anyone done anything "wrong or
unfair" to force him to plead guilty. Id. at
17-19. Based on his unambiguous and clear testimony, the
Court found White understood "the substance and meaning
of the charges" against him, "the consequences of
his plea, and the facts which the Government must prove and
which, by his plea of guilty, admits all the essential
elements of the offense [;]" was "engaged in th[e]
proceeding with intelligence and competence [;]" and had
"offered his plea of guilty as a matter of his own free
choice." Id. at 23-24.
with his sworn affirmation of understanding in an otherwise
thorough and wide-ranging plea colloquy, and unsworn,
self-serving testimony to the opposite effect at a time when
he has every incentive to embellish, see Winthrop-Redin
v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014),
the Court finds White's plea testimony dispositive.
Movant cannot now escape his sworn testimony at the Rule 11
hearing that his plea was both knowing and voluntary to claim
it was neither. See Blackledge, 431 U.S. at 74
("Solemn declarations in open court carry a strong
presumption of veracity."); accord United States v.
Gonzalez-Mercado, 808 F.2d 796, 800 n. 8 (11th Cir.
1987) ("While Rule 11 is not insurmountable, there is a
strong presumption that the statements made during the
colloquy are true."); United States v. Stitzer,
785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) ("[I]f the
Rule 11 plea-taking procedure is careful and detailed, the
defendant will not later be heard to contend that he swore
falsely."). Hence, his unintelligent plea claim fails on
argues that the plea agreement, a contract between himself
and the Government, fails as a contract and is "due to
be voided as a matter of law." Doc. 20 at 10 (apparently
contending that the contract lacks adequate consideration
because his guilt is outweighed by the sentence imposed).
Even assuming this claim is not procedurally defaulted,
see Bousley v. United States, 523 U.S. 614, 621
(1998), he has received more-than adequate consideration in
exchange for his guilty plea.
out resulted in a cap of 60 months' incarceration; had
White been convicted as charged in the indictment, "he
would have faced an advisory guideline range of imprisonment
of 292 to 365 months." PSR at ¶ 87-88. Though
movant does not fully appreciate the disparity between his
60-month (5-year) sentence and a probable 292-month (more
than 24-year) sentence while serving five years and repaying
a significant sum for what he believes to be a minimal role
in the fraud, it is clear that White received the full
benefit of his bargain. See Cummings v. United
States, 2013 WL 2422889 at *8 (S.D. Ga. June 3, 2013)
("A petitioner thus fails to establish that he was
prejudiced by counsel's failure to negotiate a more
favorable plea agreement with nothing more than the bald
assertion that such an agreement might have been
possible."); Freeman v. United States, 2011 WL