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Reilly v. United States

United States District Court, N.D. Georgia, Atlanta Division

March 7, 2019

DESHAWN REILLY, BOP ID # 65861019, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         PRISONER HABEAS CORPUS 28 U.S.C. § 2255

          FINAL REPORT AND RECOMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE

         Movant, confined in the U.S. Penitentiary in Atlanta, Georgia, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (“motion to vacate”). [Doc. 167.] The Government has filed a response. [Doc. 171.] For the reasons set forth below, the motion to vacate should be DENIED.

         I. BACKGROUND

         Movant was detained by ATF agents on March 19, 2014, for his role in a suspected straw purchase of two firearms, the illegal possession of four firearms, and the possession of marijuana with the intent to distribute. [Doc. 97 at 3-4.] The following day, Movant was charged for a violation of 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm. [Doc. 1.] On April 24, 2014, the grand jury returned a placeholder indictment charging Movant with one count of possession of a firearm by a felon. [Doc. 15.]

         On June 25, 2015, the grand jury returned a superseding indictment charging Movant with: (1) straw purchase of two firearms, in violation of 18 U.S.C. § 924(a)(1)(A); (2) felon in possession of two firearms in violation of 18 U.S.C. § 922(g)(1); (3) felon in possession of two other firearms in violation of 18 U.S.C. § 922(g)(1); and (4) possession of marijuana with intent to distribute in violation of 18 U.S.C. § 841(a)(1)&(b)(1)(D). [Doc. 30.]

         Movant pled guilty to Count Two of the superseding indictment on October 5, 2015, pursuant a negotiated plea agreement. [Docs. 112-1; 120.] Containing no specific sentencing recommendation, the plea agreement acknowledged that the Court could impose a sentence up to and including the ten-year statutory maximum term of imprisonment. [Doc. 112-1 at 3.] The plea agreement further acknowledged that the Court retained discretion to depart from the Sentencing Guidelines and that no one could predict his exact sentence at the time the agreement was being executed. [Id.]

         In February and April of 2016, the Court conducted a lengthy sentencing hearing over four non-consecutive days. [Docs. 126, 135, 136, 137.] The Court overruled numerous objections Movant made to the Presentence Investigation Report (“PSR”) and calculated a sentencing range of 100 to 125 months. [Doc. 151 at 43, 50.] The Court also denied Movant's request for a downward departure and imposed a 100-month sentence, which was at the low-end of the applicable guidelines range. [Id. at 55; Doc. 138.]

         On the final day of the sentencing hearing, Movant's counsel, Steve Sadow, moved to withdraw the guilty plea. [Doc. 151 at 8.] Mr. Sadow stated that he believed he had been ineffective in advising Movant to plead guilty. [Id. at 4-5.] The Court denied the motion and rejected Mr. Sadow's claim of ineffective assistance. [Id. at 7-8.]

         Movant filed a notice of appeal on April 18, 2016, challenging his sentence on various Sentencing Guidelines issues. [Doc. 139.] The Eleventh Circuit Court of Appeals affirmed the judgment and sentence on April 13, 2017. [Doc. 159.] When Movant did not file for a petition for writ of certiorari, his conviction and sentence became final on July 13, 2017.

         Movant filed the present motion to vacate on June 5, 2018, based on ineffective assistance of counsel. [Doc. 167.] Movant claims Mr. Sadow told him that if he pled guilty, he would get a time-served sentence. Movant states that if he had known he would not get a time-served sentence, he never would have pled guilty. The Government filed a response to the motion to vacate on August 20, 2018. [Doc. 171.]

         II. DISCUSSION

         A. The Standard for Relief Under § 2255

          To prevail on a § 2255 motion, the movant must demonstrate that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose such a sentence; (3) the sentence exceeded the maximum sentence authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. A sentence is otherwise subject to collateral attack when there is a fundamental defect that results in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185 (1979). Collateral relief, however, is limited. “Once [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, ” United States v. Frady, 456 U.S. 152, 164 (1982), and it is the movant's burden to establish his right to collateral relief, Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015), cert. denied, __ U.S. __, 136 ...


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