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Newham v. United States

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

May 5, 2017

NATHAN P. NEWHAM, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant. No. 2:14-cr-12

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Movant Nathan Newham (“Newham”), who is currently housed at the Federal Correctional Institution in Jesup, Georgia, has filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Government filed a Response, (doc. 5). Newham filed a Supplement to his Section 2255 Motion, to which the Government responded. (Docs. 14, 16.) Newham filed a Reply. (Doc. 17.) For the reasons which follow, I RECOMMEND the Court DENY in part and DISMISS without prejudice in part Newham's Motion, DIRECT the Clerk of Court to CLOSE this case, and DENY Newham in forma pauperis status on appeal and a Certificate of Appealability.

         BACKGROUND

         Newham was originally indicted in this Court on April 3, 2014, of participating in a conspiracy to possess fifty grams or more of a mixture of methamphetamine and quantities of cocaine and oxycodone with intent to distribute, in violation of 21 U.S.C. § 846. Indictment, United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. April 3, 2014), ECF No. 2. Newham was also charged with using a communication facility in furtherance of the conspiracy, in violation of 21 U.S.C. § 843(b). Id. The Court appointed attorney Stephen E. Tillman to represent Newham on these charges. On June 4, 2014, the Government filed a Superseding Indictment charging Mr. Newham with the same conspiracy charge, as well as three counts of use of a communication facility. Superseding Indictment, United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No. 208. On the conspiracy charge, Newham faced a potential sentence of not less than five nor more than forty years' imprisonment. Penalty Certification, United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No.

         Newham and his attorney, Mr. Tillman, were able to negotiate a plea agreement with the Government whereby Newham agreed to plead guilty to Count 1 of the Superseding Indictment. The plea agreement included a provision whereby Newham waived his rights to directly appeal his conviction and sentence. That provision stated:

Defendant entirely waives his right to a direct appeal of his conviction. The defendant agrees to waive his right to appeal the sentence. The only exceptions are that the Defendant may file a direct appeal of his sentence if (1) the court enters a sentence above the statutory maximum[;] (2) the court enters a sentence above the advisory Sentencing Guidelines range found to apply by the court at sentencing; or (3) the Government appeals the sentence. Absent those exceptions, the Defendant explicitly and irrevocably instructs his attorney not to file an appeal.

         Plea Agreement, United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. July 7, 2014), ECF No. 416, p. 8. Newham also waived his “right to collaterally attack his conviction and sentence on any ground and by any method, including but not limited to a 28 U.S.C. § 2255 motion[ ]” as part of his plea agreement. Id.

         Newham appeared before the Honorable Lisa Godbey Wood for his change of plea, or Rule 11, proceeding. Chief Judge Wood addressed Newham and informed him the purpose of the hearing was to ensure that he understood the case that was pending against him, that he understood all of the rights he was waiving or giving up by pleading guilty, and that there was a factual basis for the guilty plea. Change of Plea Hr'g Tr., United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. Feb. 19, 2016), ECF No. 749, pp. 2-3. Chief Judge Wood inquired whether anyone had forced Newham to offer to plead guilty, and he said no one had done so and that pleading guilty was what he wanted to do. Id. at pp. 3-4. Chief Judge Wood told Newham that he did not have to plead guilty, and if he chose to persist in his not guilty plea, he would have the right to: a public and speedy trial by jury; a presumption of innocence during that trial; the assistance of trial counsel; see, hear, confront, and cross-examine the Government's witnesses and evidence; call witnesses on his behalf; and testify himself or remain silent. Id. at pp. 7-9. However, Chief Judge Wood cautioned Newham he would be waiving these rights if he pled guilty and she accepted that guilty plea. Id. at p. 9.

         Newham stated he understood. Newham also stated he and Mr. Tillman reviewed the Indictment together, that he had had the opportunity to talk to Mr. Tillman about the facts of his case, as well as about the proposed plea agreement, and that Mr. Tillman had answered his questions in a satisfactory manner. Id. at pp. 10-11. Newham stated that he was satisfied with Mr. Tillman's services. Id. at p. 12.

         Chief Judge Wood reviewed the counts of the Superseding Indictment applicable to Newham with him and the essential elements of the crimes for which he was charged and that the Government would have to prove. Id. at pp. 12-15. Chief Judge Wood advised Newham of the maximum sentence she could impose. Id. at p. 15. Moreover, Chief Judge Wood explained to Newham that, in imposing a sentence upon him, she would have to take into consideration the advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553. Id. at p. 16.

         Chief Judge Wood asked the Assistant United States Attorney (“AUSA”) to summarize the provisions of the plea agreement. AUSA Carlton Bourne stated:

Your Honor, the Government agrees not to object to a recommendation from the Probation Office that the Defendant receive a three-level reduction for acceptance of responsibility based on the timeliness of his plea and provided he truthfully admits the conduct. The Government agrees to dismiss the remaining counts of the Superseding Indictment as to this Defendant. The Government also agrees to consider whether this Defendant's cooperation with the Government qualifies as “substantial assistance” and warrants the filing of a motion for downward departure or a motion to reduce sentence.
The Defendant agrees to plead guilty to the lesser included offense of Count One of the Superseding Indictment, to acknowledge at the time of the plea the truth contained in the factual basis, to pay on the date of sentencing any assessments imposed by the Court. The Defendant, if he cooperates, agrees to provide full, complete, candid, and truthful cooperation whenever called upon. The Government, in its sole discretion, will decide whether the cooperation qualifies as substantial assistance.
The Defendant waives his right to appeal with only three exceptions. And the Defendant entirely waives his right to collaterally attack his conviction and sentence.

Id. at pp. 18-19. Chief Judge Wood asked Newham if AUSA Bourne's summarization of the plea agreement was consistent with the plea agreement he signed, and he stated it was. Id. at p. 19. Newham also stated he read the plea agreement, and Mr. Tillman answered any questions he may have had before he signed the agreement. Newham affirmed that no one had made him any promises regarding the outcome of his case, other than the provisions contained in the plea agreement. Id.

         Chief Judge Wood then specifically addressed the direct appeal waiver with Newham:

I want to follow up on one of the provisions that Mr. Bourne alluded to. That is, that this plea agreement that you are proposing does waive appellate rights. It states: Defendant entirely waives his right to appeal his conviction and entirely waives his right to appeal the sentence. Now there are exceptions to that waiver. That is, if one of these three events were to occur, then you would get a direct appeal right back. But otherwise, by virtue of this agreement, you waive your appellate rights. The only exceptions are, number one, if I were to sentence you above that statutory maximum that we talked about, you could appeal that directly; or number two, if I were to sentence you above the advisory guideline range as found by me, then you could get an appeal right back; or number three, if the Government were to file a direct appeal, then you would get a direct appeal right back. But otherwise, by virtue of this plea agreement, you waive all other direct appeal rights. Understand?

Id. at pp. 19-20. Newham stated he understood this provision. Chief Judge Wood also stated that the proposed plea agreement contained a waiver of Newham's collateral attack rights. When asked if he understood that provision, Newham stated he did not. Accordingly, Chief Judge Wood told Newham:

That means that after your case is over and after any appellate right that might have remained has been pursued, if you were to file a separate attack on your appeal or sentence, it would fail because you have also waived the right to file such a separate attack. Understand? What it means, in essence, is pursuant to your plea agreement, you are agreeing to accept the outcome of your case unless I sentence you higher than the statutory maximum, or higher that your advisory guidelines range as found by me, or unless the Government files an appeal, and by virtue of the plea agreement, ways to attack the conviction or sentence after you are sentenced are given up.

Id. at pp. 20-21. Newham expressed his understanding of this provision and stated he had no questions about that provision. Id. at p. 21.

         Chief Judge Wood then asked Newham whether he wished to still plead guilty to the lesser included offense of Count One of the Superseding Indictment because he was in fact guilty of that count, and he answered in the affirmative. Id. at pp. 21-22. Chief Judge Wood also asked Newham whether he understood the rights and privileges he was waiving if she accepted his plea, and he said he did. Chief Judge Wood determined Newham participated in the Rule 11 proceedings “knowingly”, “intelligently”, and “voluntarily.” Id. at p. 22. Further, Chief Judge Wood determined Newham's plea was “knowing” and “voluntary”. Id. at p. 20. Newham agreed. The Government provided a factual basis for Newham's plea of guilty. Id. at pp. 23-25. Mr. Tillman cross-examined Kevin Waters, the task force officer with the Drug Enforcement Administration in Savannah who provided the Government's factual basis for the plea. Id. at p. 26.

         After hearing from Newham again, during which time he agreed with the Government's factual basis, Chief Judge Wood accepted Newham's plea and adjudged him guilty of the lesser included offense of Count One of the Superseding Indictment. Id. at p. 27. Chief Judge Wood advised Newham that a Probation Officer would prepare a Presentence Investigation report (“PSI”), and the Court would schedule a sentencing hearing after the PSI was disclosed to the Government and Mr. Tillman. Id.

         In the PSI, the Probation Officer attributed at least 680.4 grams of “ice” methamphetamine to Newham, which indicated a base offense level of 34, pursuant to United States Sentencing Guidelines § 2D1.1. (PSI, ¶¶ 12, 17.) The Probation Officer increased the offense level by two, pursuant to United States Sentencing Guidelines § 2D1.1(b)(1), for possession of dangerous weapons. (PSI, ¶ 18.) Newham also received a three point reduction under United States Sentencing Guidelines § 3E1.1 for accepting responsibility in a timely manner. (PSI, ¶¶ 24-26.) The Probation Officer recommended that Newham's total offense level was 33. (PSI, ¶ 26). With a criminal history of nine, his criminal history fell within category IV. (PSI, ¶ 36.) With a total offense level 33 and criminal history category IV, Newham's recommended advisory Guidelines' range was 188 to 235 months' imprisonment. (PSI, ¶ 60.) The statutory maximum term of imprisonment was 20 years. 21 U.S.C. § 846. Mr. Tillman filed no objections to the PSI but submitted additional factors for the Court to consider regarding a possible downward departure. (PSI, Addendum.) Specifically, the Probation Officer noted that Mr. Tillman had asserted that the Court should depart downward under United States Sentencing Guidelines § 5K2.0 because the sentencing range was fundamentally unjust. (Id.)

         At the sentencing hearing, Chief Judge Wood asked Newham whether he had the opportunity to read and review the PSI and its addendum with his attorney. Newham answered in the affirmative. Sent. Hr'g Tr., United States v. Ortiz-Castillo, et al., 2:14-cr-12 (S.D. Ga. June 20, 2015), ECF No. 673, pp. 4-5. The Court then asked whether there were any remaining objections to the accuracy of the factual statements or to the Probation ...


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