United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Borris Thomas (“Thomas”), currently incarcerated
at the Federal Correctional Institution in Edgefield, South
Carolina, filed a Motion to Vacate, Set Aside, or Correct his
Sentence pursuant to 28 U.S.C. § 2255. (Docs. 1, 6.)
Respondent filed a Response. (Doc. 7.) For the reasons which
follow, I RECOMMEND the Court
DISMISS IN PART and DENY IN
PART Thomas's Motion, DENY
Thomas in forma pauperis status on appeal,
DENY Thomas a Certificate of Appealability,
and DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal.
was indicted for: conspiracy to use, carry, and brandish a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(o) (Count 3), interference with commerce by
robbery, in violation of 18 U.S.C. § 1951 (Count 4); and
using, carrying, and brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Count 5). Indictment, United States v. Thomas,
5:13-cr-13 (S.D. Ga. May 8, 2013), ECF No. 1. After pleading
guilty to Counts 3 and 4, the Honorable Lisa Godbey Wood
sentenced Thomas to 108 months' imprisonment for each
count, to be served concurrently. J., United States v.
Thomas, 5:13-cr-13 (S.D. Ga. July 11, 2014), ECF No.
130. Consistent with the appeal waiver in his plea agreement,
Thomas did not file a direct appeal.
August 18, 2016, Thomas executed his Section 2255 Motion.
(Doc. 1, p. 6.) His Motion was filed in this Court on August
30, 2016. (Doc. 1.) Thomas challenges his sentence on
numerous grounds, including: actual innocence; improper
sentencing enhancements; ineffective assistance of counsel;
and a sentence exceeding the statutory maximum. (Docs. 1, 6.)
The Government asserts the Court should dismiss Thomas's
Motion because his Motion is: barred by the collateral attack
waiver in his plea agreement; untimely; procedurally
defaulted; and meritless. (Doc. 7.)
Whether the Waiver Provisions in Thomas's Plea Agreement
Bars his Claims
defendant enters a guilty plea pursuant to Rule 11
proceedings, “there is a strong presumption that the
statements made during the colloquy are true” and his
plea is knowing and voluntary. United States v.
Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir.
1987). It is well-settled that a waiver of
appeal and collateral attack provisions contained
in a plea agreement is enforceable if the waiver is knowing
and voluntary. United States v. Johnson, 541 F.3d
1064, 1066 (11th Cir. 2008) (citing United States v.
Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001)).
“‘To establish the waiver's validity, the
government must show either that (1) the district
court specifically questioned the defendant about the
provision during the plea colloquy, or (2) it is manifestly
clear from the record that the defendant fully understood the
significance of the waiver.'” United States v.
Mottola, 394 F. App'x 567, 568 (11th Cir. 2010)
(quoting United States v. Benitez-Zapata, 131 F.3d
1444, 1446 (11th Cir. 1997)). “A waiver of the right to
appeal includes a waiver of the right to appeal difficult or
debatable legal issues- indeed, it includes a waiver of the
right to appeal blatant error.” United States v.
Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
“Waiver would be nearly meaningless if it included only
those appeals that border on the frivolous.” Brown
v. United States, 256 F. App'x 258, 261-62 (11th
Whether the District Court Questioned Thomas About the Waiver
During the Plea Colloquy
and his attorney, Mr. James McGee, were able to negotiate a
plea agreement with the Government whereby Thomas agreed to
plead guilty to Counts 3 and 4 of the Indictment. A
“Limited Waiver of Appeal” provision was included
as part of the plea agreement. That provision stated,
“Defendant voluntarily and expressly waives the right
to appeal the conviction and sentence and the right to
collaterally attack the conviction and sentence in any
post-conviction proceeding, including a § 2255
proceeding, on any ground[.]” Plea Agreement,
United States v. Thomas, 5:13-cr-13 (S.D. Ga. Nov.
14, 2013), ECF No. 111, p. 12. This waiver was repeated at
the beginning of the plea agreement summarizing
Defendant's promises. Id. at p. 3.
appeared before Judge Wood for his change of plea, or Rule
11, proceeding on November 13, 2013. Min. Entry, United
States v. Thomas, 5:13-cr-13 (S.D. Ga. Nov. 13, 2013),
ECF No. 108. Judge Wood addressed Thomas 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.
Thomas, 5:13-cr-13 (S.D. Ga. Nov. 13, 2013), pp. 2-3.
Judge Wood inquired whether anyone had forced or
“lean[ed] on” Thomas to offer to plead guilty.
Id. at p. 3. Thomas replied that no one had done so
and pleading guilty was what he wanted to do. Id. at
pp. 3-4. Judge Wood told Thomas 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 to remain silent.
Id. at pp. 5-7. However, Judge Wood cautioned Thomas
that he would be waiving these rights if he pled guilty.
Id. at pp. 7-8. Thomas stated he understood and did
not have any questions. Id.
also stated he and Mr. McGee reviewed the Indictment
together, discussed the facts of his case, and discussed the
proposed plea agreement. Id. at p. 8. Thomas stated
Mr. McGee had generally spoken to him about the advisory
Sentencing Guidelines, was satisfied with Mr. McGee's
representation, and had no complaints about him whatsoever.
Id. Judge Wood reviewed with Thomas the two counts
in the Indictment to which he was pleading guilty and the
essential elements of the crimes that the Government would
have to prove. Id. at pp. 10- 12. Judge Wood advised
Thomas of the maximum sentence she could impose for each of
the counts, which was twenty years' imprisonment, a fine
of not more than $250, 000, and no more than three years'
supervised release. Id. at pp. 12-13.
Judge Wood asked the Assistant United States Attorney
(“AUSA”) to summarize the provisions of the plea
agreement. AUSA Tania Groover stated:
We have reached a plea agreement in this particular case, and
it calls for the Defendant pleading guilty as charged to
Count[s] 3 and 4 and the Government dismissing Count 5 . . .
. In exchange, the Defendant is agreeing to plead guilty to
Counts 3 and 4 in the indictment, to acknowledge at the time
of the plea the truth of the factual basis contained in the
plea agreement, . . . to waive appeal as explained below in
the plea agreement . . . .
Id. at pp. 14-16. Judge Wood asked Thomas if this
summary was consistent with the plea agreement he signed, and
he stated it was. Id. at p. 17. Thomas also stated
he read the plea agreement, and Mr. McGee answered any
questions he may have had before he signed ...