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Henley v. United States

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

March 27, 2018

MARION A. HENLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. BACKGROUND

         A. Indictment

         On 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.

         B. Agreement to Plead Guilty

         On 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, 6.

         Petitioner's plea agreement contained the following factual basis for his guilty plea:

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.

         By 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.

         C. Sentencing

         The 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 ¶¶ 69.

         Petitioner 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 ...


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