United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
T. WALKER, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
(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
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.)
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.
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 ...