Thomas v. United States

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Alonzo 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.

         BACKGROUND

         Thomas 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.

         DISCUSSION

         On 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.)

         I. Whether the Waiver Provisions in Thomas's Plea Agreement Bars his Claims

         When a 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^[1] 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 Cir. 2007).

         A. Whether the District Court Questioned Thomas About the Waiver During the Plea Colloquy

         Thomas 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.

         Thomas 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.

         Thomas 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.

         Additionally, 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 ...