United States District Court, S.D. Georgia, Augusta Division
MARION A. HENLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE.
Marion A. Henley filed a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence, raising a
single claim that trial counsel failed to file a notice of
appeal when directed to do so. (Doc. no. 1.) The Court
appointed attorney Beau Worthington to represent Petitioner
and conducted an evidentiary hearing on March 13, 2018. (Doc.
nos. 5, 12.) Based on the evidence of record, the Court
REPORTS and RECOMMENDS the
§ 2255 motion be DENIED, this civil
action be CLOSED, and a final judgment be
ENTERED in favor of Respondent.
October 4, 2016, the grand jury in the Southern District of
Georgia charged Petitioner in a sixteen-count indictment with
one count of dealing in firearms without a license, seven
counts of felon in possession of a firearm, seven counts of
distribution of methamphetamine, and one count of possession
with intent to distribute methamphetamine. United States
v. Henley, CR 116-077, doc. no. 1 (S.D. Ga. October 4,
2016) (hereinafter "CR 116-077"). The charge of
dealing in firearms without a license carried a maximum term
of five years imprisonment, while the felon in possession of
a firearm charge carried a maximum term often years
imprisonment for each of the seven counts. CR 116-077, doc.
no. 2. The methamphetamine distribution and possession
charges carried a maximum sentence of twenty years
imprisonment for each count. Id. at 2. Petitioner
retained Christopher Scott Connell to represent him as trial
counsel. Id. doc. no. 11.
Agreement to Plead Guilty
January 5, 2017, Petitioner appeared with counsel before
Chief United States District Judge J. Randal Hall and pleaded
guilty to Count Nine, distribution of methamphetamine.
Id. doc. nos. 15, 16. In exchange for the guilty
plea, the government agreed to (1) dismiss the remaining
counts in the indictment; (2) not object to a recommendation
for a two-point acceptance of responsibility reduction and
move for an additional one-point reduction under the
Sentencing Guidelines if Petitioner's offense level was
sixteen or greater; and (3) consider filing a motion, based
on any "substantial assistance" provided by
Petitioner, for downward departure under U.S.S.G. §
5K1.1 or requesting a reduction of Petitioner's sentence
under Fed. R. Crim. P. 35. Id. doc. no. 16, pp. 3-4,
plea agreement contained the following factual basis for his
On or about November 6, 2015, in Richmond County, within the
Southern District of Georgia, the Defendant aided and abetted
by persons known and unknown, did knowingly and intentionally
distribute a quantity of methamphetamine (actual), a Schedule
II controlled substance, in violation of Title 21, United
States Code, Sections 841(a)(1), (b)(1)(C), and Title 18,
United States Code, Section 2.
Id. at 1-2.
signing the Plea Agreement, Petitioner "entirely
waive[d] his right to a direct appeal of his conviction and
sentence on any ground" unless the Court (1) sentenced
him above the statutory maximum, (2) sentenced him above the
advisory Sentencing Guidelines range, or (3) the government
appealed the sentence. Id. at 6. Absent one of those
three conditions, "[Petitioner] explicitly and
irrevocably instruct[ed] his attorney not to file an
appeal." Id. By signing the Plea Agreement,
Petitioner additionally attested he "read and carefully
reviewed this agreement" with Mr. Connell and "that
his attorney has represented him faithfully, skillfully, and
diligently, and [Petitioner] is completely satisfied with the
legal advice given and the work performed by his
attorney." Id. at 7, 9.
United States Probation Office then prepared a Presentence
Investigation Report ("PSI") which set
Petitioner's Total Offense Level at twenty-seven,
Criminal History Category at VI, and Guidelines imprisonment
range at 130 to 162 months. PSI ¶¶31, 50, 70.
Petitioner's base offense level for Count Nine was
twenty-eight, pursuant to U.S.S.G. § 2D1.1, and
increased to thirty pursuant to U.S.S.G. § 2D1.1(b)(1)
because Petitioner possessed and sold firearms in conjunction
with the controlled substance. PSI ¶¶ 22-23. The
offense level was subsequently reduced three points for
Petitioner's acceptance of responsibility. PSI
¶¶ 29-30. The statutory maximum term of
imprisonment for Petitioner's offense was twenty years.
21 U.S.C. §§ 841(a)(1) & (b)(1)(C); PSI
raised no objections to the PSI, and Chief Judge Hall imposed
a sentence of 160 months imprisonment. PSI Addendum; CR
115-063, doc. no. 25. All other remaining charges against
Petitioner were dismissed, and judgment entered on May 31,
2017. Id. doc. no. 25. In ...