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DeFreitas v. United States

United States District Court, S.D. Georgia, Savannah Division

January 27, 2017

WESLEY ELDER DeFREITAS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Movant 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;[1] 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.

         I. BACKGROUND

         The 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.

         The 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).

         The 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.").

         II. ANALYSIS

         DeFreitas 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.

         Four 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).

         Second, 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)[2] 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).

         And 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.

         Defendants 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. . . .").

         A. ...


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