United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Wesley DeFreitas, proceeding pro se, moves under 28
U.S.C. § 2255 to vacate the sentence this Court imposed
following his guilty plea to unlicensed dealing of firearms,
receipt of stolen property, and possession of stolen
explosives. Docs. 26 & 27; see docs. 1
(information), 13 (plea agreement), 15 (judgment for 96
months' imprisonment), 18 (signed post-conviction
certification declining to appeal conviction). He claims that
his attorney was ineffective, resulting in a significantly
higher sentence than he would have otherwise received. Doc.
26 at 7.
issue is whether movant received competent legal advice in
electing to plead guilty and reap his plea bargain's
benefits. Though he contends otherwise, the record shows that
DeFreitas was provided with quite a bit of information prior
to his incarceration. At his plea hearing, the Court read the
charges in the Information and confirmed he understood what
the Government would have to do to convict him of those
charges. Doc. 29 at 16-20. The Court then explained the
rights he was giving up by pleading guilty, including the
rights to a trial, to put forth a defense, and to remain
silent. DeFreitas swore he understood. Id. at 9-14.
Court also explained the possible sentences he could face for
pleading guilty and that he would be sentenced under the
advisory Sentencing Guidelines. DeFreitas again testified he
understood. Id. at 20-26. He testified he had not
been forced or pressured into pleading guilty (id.
at 24 & 28) and that he was satisfied with his
attorney's representation (id. at 15).
Court concluded that DeFreitas understood "the substance
and meaning of the charges, 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." Doc. 29 at 28. It further concluded that he
had "engaged in this proceeding with intelligence and
competence" and that he had "offered his plea of
guilty as a matter of his own free choice." Id.; see
also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)
("Solemn declarations in open court carry a strong
presumption of verity."); United States v.
Spitzer, 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.").
argues that his attorney was ineffective for failing to(1)
move to suppress evidence seized pursuant to a search
warrant, (2) investigate potentially exculpatory evidence,
(3) object to the Presentence Investigative Report (PSR), and
(4) present mitigating evidence at sentencing. Doc. 26 at
4-7; doc. 27 at 2-7. All of these claims fail.
sets of governing principles must be applied here. First,
DeFreitas "bears the burden of establishing the need for
§ 2255 relief, as well as that of showing the need for
an evidentiary hearing." Mikell v. United
States, 2011 WL 830095 at * 2 (S.D. Ga. Jan. 26, 2011);
see also Williams v. Allen, 598 F.3d 778, 788 (11th
Cir. 2010). He thus must demonstrate that any claimed error
constitutes "a fundamental defect which inherently
results in a complete miscarriage of justice."
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quotes and cite omitted).
any claims not raised on direct appeal are procedurally
defaulted, Lynn v. United States, 365 F.3d 1225,
1234 (11th Cir. 2004), though claims of ineffective
assistance of counsel (IAC) generally are not. Massaro v.
United States, 538 U.S. 500, 504 (2003). Third,
"the two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective
assistance of counsel." Hill v. Lockhart, 474
U.S. 52, 58 (1985); Lalani v. United States, 315
F.App'x 858, 860-61 (11th Cir. 2009).
fourth, a defendant who enters an unconditional plea of
guilty "may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty
plea." Tollett v. Henderson, 411 U.S. 258, 267
(1973) (emphasis added). That is, "[a] defendant's
plea of guilty, made knowingly, voluntarily, and with the
benefit of competent counsel, waives all non-jurisdictional
defects in that defendant's court proceedings."
United States v. Pierre, 120 F.3d 1153, 1155 (11th
Cir. 1997); see also United States v. Patti, 337
F.3d 1317, 1320 (11th Cir. 2003). The bar applies both on
appeal and on collateral attack. See United States v.
Broce, 488 U.S. 563, 569 (1989). "A defendant who
wishes to preserve appellate review of a non-jurisdictional
defect while at the same time pleading guilty can do so only
by entering a 'conditional guilty plea' in accordance
with Federal Rule of Criminal Procedure 11(a)(2)."
Pierre, 120 F.3d at 1155.
who have entered an unconditional guilty plea therefore may
challenge their pre-plea constitutional claims only by
showing that the advice they received from counsel undermined
"the voluntary and intelligent character of the
plea." Tollett, 411 U.S. at 267. This includes
defects in the procedure by which the plea was received or
circumstances which make the plea other than voluntary,
knowing and intelligent. It also includes cases where the
guilty plea was induced through threats, misrepresentations,
or improper promises, such that the defendant cannot be said
to have been fully apprised of the consequences of the guilty
plea. . . .
Mikell, 2011 WL 830095 at *2 (cites and quotes
omitted). Otherwise, all substantive claims that could have
been raised before the plea, such as suppression-based
claims, are waived. Franklin v. United States, 589
F.2d 192, 194-95 (5th Cir. 1979) ("By entering a
knowing, voluntary, intelligent guilty plea on the advice of
competent counsel, [petitioner] has waived all
nonjurisdictional complaints . . . [such as] claims regarding
Miranda warnings, coerced confessions, perjury and
illegal searches and seizures. . . ."); Washington
v. United States, 2010 WL 3338867 at * 15 (S.D. Ala.
Aug.5, 2010) (collecting Eleventh Circuit cases denying
habeas relief on suppression-based IAC claims and concluding
that, "[b]ecause all of Washington's asserted claims
of ineffective assistance of counsel relate to the
suppression issue, the denial of which has been waived . . .
they have been waived by petitioner's entry of a knowing
and voluntary plea. . . .").