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Carter v. United States

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

March 16, 2017

HERBERT CARTER, IV, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Movant Herbert Carter, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate his 2014 conviction for possession of a firearm by a felon. Docs. 39, 43 & 44;[1] see docs. 3 (indictment), 32 (change of plea), 37 (plea agreement), 38 (judgment for 120 months' imprisonment). He alleges that prosecutorial misconduct invalidates his plea and sentence. Doc. 44.

         I. BACKGROUND

         Though he contends otherwise, the record shows that Carter was provided with quite a bit of information prior to his conviction.. For example, his plea agreement explained that a guilty plea would subject him to a maximum of 10 years' imprisonment on Count Five (possession of a firearm as a felon). Doc. 37 at 8. It also explained that the probation office would "consider all of defendant's conduct related to the offense to which he is pleading, which may include conduct related to Counts of the Indictment which were or are to be dismissed or for which [he] was acquitted, as well as the defendant's criminal history, and that these facts will be considered by the Court in determining [his] sentence." Id. Finally, by signing the agreement Carter affirmed that his attorney had been forthright, competent, and fully communicated the rights he was giving away by pleading guilty. Id.

         There is more. During the change-of-plea hearing, the Court asked him several important questions, which Carter testified under oath that he understood. See doc. 46 (Rule 11 Change of Plea Hearing Transcript) at 4 (affirming he understood the Court's admonition that "if you ever seek to undo or set aside what occurs here 11 today you're going to be confronted by the answers you give me, so make sure you understand the words and the questions."). He testified, among other things, that he understood that by pleading guilty he gave up his right to a trial and various civil rights. Id. at 8-10, 18. He swore that he appreciated "the difference between a plea of guilty and a plea of not guilty, " and understood that if he pled guilty he would "forever lose [his] right to complain on appeal about any action of the government, any government agent, the prosecutor, the magistrate judge, [his] lawyer, this Court, or anyone else as far as any complaint that [he] might have about anything that [he] say[s] . . . they did or failed to do in [his] case." Id. at 9-10. He affirmed that by pleading guilty, he admitted "that [he] did what the government accuse[d] [him] of doing pursuant to [his] plea agreement." Id. at 10.

         Carter also testified that his attorney had met with him three or four times and had explained the charges of the indictment, any possible defenses, and the sentencing guideline information to him. Id. at 10-14. He was "satisfied" with counsel and the way he had represented him. Id. No one had "done anything that [he] consider[ed] to be wrong or unfair which ha[d] forced [him] to plead guilty, " id. at 16, or made him any promises not set forth in the plea agreement, id. at 17-18. He confirmed that he "was pleading guilty because [he was] in fact guilty, and that he did so "freely and voluntarily." Id. at 18-19.

         Movant also testified that he understood that "even though the government is dismissing the remaining counts in the indictment, according to the advisory Sentencing Guidelines, the charges against [him] in those counts may still play a part in the calculation of [his] sentence." Id. at 13.

         Department of Alcohol, Tobacco, and Firearms (ATF) Task Force Agent Daryle McCormick testified about the factual basis of the charges against Carter, id. at 19-21, and movant agreed that his testimony was correct. Id. at 21. He admitted he possessed firearms despite being a felon prohibited from so doing; though he complained that he had been drawn into the scheme by undercover agents' solicitation, he admitted that he "made a mistake, [he] possessed a firearm" and sold "firearms to the agent on the date [Agent McCormick] testified about." Id. at 21-22.

         The Court sentenced Carter to 120 months' imprisonment, the statutory maximum. Doc. 38 (judgment dated March 18, 2014). Carter took no appeal, so his conviction became final on April 1, 2014. Fed. R. App. P. 4(b)(1)(A)(i) (defendants must notice their appeals within 14 days from the entry of judgment).

         II. ANALYSIS

         A. The Ippolito Factor

         Carter contends that the lead prosecutor in his case, former Assistant United States Attorney Cameron Ippolito, engaged in extracurricular prosecutorial misconduct[2] that impacted his sentence. Had he known that she and Agent Valoze were involved - information he could have used to impeach both her and Valoze's credibility at trial - he may not have pleaded guilty. Doc. 43 at 7-16. He contends the Government's failure to turn over evidence (of their affair or the benefits one of their informants apparently received for his work) before he entered his plea was misconduct of the highest sort. Id. at 8-11.

         But the Government has 730 duty to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. United States v. Ruiz, 536 U.S. 622, 633 (2002). And Carter pleaded guilty, waiving all of his trial rights, including the right to receive material impeachment information. Doc. 46 at 8-10, 18. His lack of impeachment information that -- hypothetically -- might have resulted in a lower sentence after a jury trial does nothing to unwind his knowing and voluntary plea, based on his unambiguous admission of guilt. See Id. at 10; 18-19. See United States v. Baez-Arrogo, 553 F.App'x 922, 955 (11th Cir. 2014) (government's failure to disclose impeachment evidence does not make defendant's guilty plea involuntary or unknowing); Davidson v. United States, 138 F.App'x 238, 239 (11th Cir. 2005) (new information that would-have impeached a search warrant affidavit does not unwind defendant's guilty plea).

         B. Statute of Limitations

         It follows that Carter cannot look to 2255(f)(4) (discovery of a new, predicate fact material to the claim) to define when his one-year statute of limitations began to run. Under 28 U.S.C. § 2255(f)(1), the limitations clock started running the day his conviction became final (April 1, 2014) and ran out on April 1, 2015 (one year later). See Mederos v. United States,218 F.3d 1252, 1253 (11th Cir. 2000) (judgment of conviction final on expiration of deadline for filing notice of appeal); Fed. R. App. P. 4(b)(1)(A)(i) (defendants must notice their appeals within 14 days from the entry of judgment). He did not ...


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