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Parham v. United States

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

April 3, 2019

ALLEN PARHAM, Movant,
v.
UNITED SATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          FINAL REPORT AND RECOMMENDATION

          LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE

         This matter has been submitted to the undersigned Magistrate Judge for consideration of Allen Parham's pro se motion under 28 U.S.C. § 2255 and supporting memorandum (Docs. 198; 198-1) 1, the government's response (Doc. 216), and Parham's reply (Doc. 220). For the reasons that follow, the undersigned RECOMMENDS that Parham's § 2255 motion be DENIED.

         I. Procedural History

         A federal grand jury in the Northern District of Georgia returned an indictment against Parham charging him with one count of bank fraud conspiracy and four counts of bank fraud. (Doc. 1.) Represented by court appointed counsel 1 All citations to the record are to 1:14-CR-106-SCJ-LTW-3.

         William D. Dillon, Parham pled guilty to bank fraud conspiracy, pursuant to a negotiated plea agreement in which the government agreed to dismiss the four counts of bank fraud. (Doc. 3 2-1.) The plea agreement included an appeal waiver provision, which provided that Parham

voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255) on any ground, except that [Parham] may file a direct appeal of an upward departure or variance above the sentencing guideline range as calculated by the district court.

(Id. at 16.) Parham acknowledged that "the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding" and that no one had "threatened or forced me to plead guilty" or made any "promises or inducements . . . other than those discussed in the Plea Agreement." (Id. at 18.) Parham also affirmed that he was "fully satisfied with the representation provided to me by my attorney in this case." (Id.)

         At the beginning of the plea hearing, Parham acknowledged the written agreement and that he had signed it. (Doc. 216-1 at 3.) The Court explained to Parham the rights he was giving up in pleading guilty, and Parham stated that he understood and was willing to give up those rights. (Id. at 5-8.) Parham admitted that he had no problem reviewing the plea agreement with his attorney, that no one had threatened or forced him to plead guilty, and that he was "freely and voluntarily" pleading guilty. (Id. at 5, 8.) The prosecutor summarized the terms of the plea agreement and read the full text of the appeal waiver, and Parham agreed with the prosecutor's description of the plea agreement. (Id. at 8-12.)

         Parham acknowledged that no one had threatened or forced him to plead guilty, promised him anything not contained in the plea agreement, promised him a particular sentence, or told him not to tell the complete truth. (Id. at 12.) Dillon told the Court that he had not made any promises to Parham about his sentence and was not aware of any agreements or promises, other than those contained in the plea agreement, to induce Parham to plead guilty. (Id. at 14.) Parham did not contest Dillon's statements and told the Court that he had sufficient time to think about and discuss the case with Dillon before pleading guilty and that he was satisfied with his Dillon's representation. (Id. at 14-15.)

         Next, the Court discussed the appeal waiver with Parham:

[THE COURT:] Do you also understand that under certain circumstances you ... may have the right to appeal any sentence that I may impose?
[PARHAM:] Yes, sir.
[THE COURT:] Do you understand that as part of your plea agreement you are giving up your right to appeal your sentence unless there is an upward departure or upward variance from ...

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