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McMillar v. United States

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

July 3, 2019

LEONARDO LEVETTE MCMILLAR Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          Christopher L. Ray United States Magistrate Judge.

         Movant Leonardo Levette McMillar moves under 28 U.S.C. § 2255 to vacate his 2012 conviction for possession of a firearm by a felon and in relation to a drug trafficking offense. Docs. 75, 82 & 83;[1] see docs. 3 (indictment), 38 (change of plea), 46 (plea agreement), 48 (judgment for 180 months' imprisonment). He alleges that prosecutorial misconduct invalidates his plea and sentence. Doc. 75.

         A bit of background is warranted. The lead prosecutor in this case, former Assistant United States Attorney Cameron Ippolito, was publicly censured for personal and professional misconduct. Several cases that she (and her paramour, ATF Agent Lou Valoze) worked on together were unwound entirely. Their transgressions - as related to this matter - were twofold. First, their affair spanned 2009 through March 2014, the length of the undercover storefront operation that snagged McMillar. Second, they made misleading statements on an “S Visa” application they submitted for a non-citizen informant. Four criminal cases in which Agent Valoze testified about material matters at trial and at sentencing were reopened as a result of the disclosure. See generally In re Ippolito, 2015 WL 424522 at * 1 (S.D. Ga. Jan. 30, 2015) (Court's public censure). McMillar's case was identified as one of those potentially affected by Ippolito's improper relationship with Valoze. Id.

         Some twenty months later, on September 23, 2016, McMillar signature-filed a pro se “motion to dismiss the indictment and suppress evidence” based upon the Ippolito-Valoze affair. Docs. 60 & 62. McMillar then found counsel and recharacterized his motion as one to vacate his sentence pursuant to 28 U.S.C. § 2255. Docs. 67 & 75. The Court, upon screening, left open the question of timeliness. Doc. 76 at 4 n. 2 (permitting McMillar to amend his motion, finding the date of his original motion would control, but making no finding as to whether that motion was timely filed).

         The Government moves to dismiss McMillar's motion as untimely. Doc. 78. McMillar, it argues, was represented by Amy Lee Copeland, who also represented three of the four defendants whose cases were specifically reopened based on the Government's disclosure of the Ippolito affair. Ms. Copeland, accordingly, filed motions for new trial or sentencing on behalf of those defendants. As part of those motions, she represented that she had received a copy of the Government's disclosure of the affair. See United States v. Brown, CR210-31, doc. 177 at 7 (S.D. Ga. Feb. 10, 2015).[2] Thus, the Government argues, McMillar could have learned about the possibility that the affair affected his case through his appointed counsel long before the filing deadline. Doc. 78 at 6-7. The Government's initial disclosure, however, did not have McMillar's name listed. Doc. 82 at 4.

         The Court is not confident, therefore, that counsel informed McMillar in January 2015, when she received notice about the potential compromise of her other clients' cases. See doc. 83 (Affidavit of Amy Lee Copeland) at ¶ 7 & 11 (explaining that she had a vague recollection of speaking with McMillar or his spouse about the affair but did not recall forwarding McMillar a copy of the Government's disclosure because she was no longer representing him and, perhaps, because she “determined that it would have no effect on his case.”). The earliest McMillar might reasonably have learned that his case was potentially affected by Ippolito and Valoze's indiscretion was on February 11, 2015, when the Government named him in a list of cases they had worked on. In re: Ippolito and Valoze, MC215-002, doc. 4, Exh. A at 12 (S.D. Ga. Feb. 11, 2015). That list was available on the public docket at a time that the affair was well publicized and widely discussed amongst the prisoners incarcerated because of the storefront operations Statesboro Blues, Thunderbolt, and Pulaski. Id.; see In re Ippolito, 2015 WL 424522.

         The Court finds McMillar's argument that he could not have learned of the affair in February 2015, however, incredible. Had he utilized anything approaching “due diligence, ” see 28 U.S.C. § 2255(f)(4), the list naming his case as one possibly impacted would have been readily accessible. His unsupported argument that the Government had to serve him with a copy of its disclosure to trigger the one-year deadline to seek collateral relief is meritless. See doc. 82. McMillar's motion is untimely filed and should be DENIED on that ground alone. The Court, however, also recognizes the serious nature of Ippolito's and Valoze's misconduct and the potential mischief it wreaked. The Court therefore will evaluate the merits of McMillar's argument that the belated disclosure of the Ippolito-Valoze affair violates Brady and the Southern District's open file rule. Docs. 75 & 82.

         The Government argues that it has no duty to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. Doc. 78 at 7-8 (citing United States v. Ruiz, 536 U.S. 622, 633 (2002)). And McMillar pleaded guilty, waiving all of his trial rights, including the right to receive material impeachment information. Doc. 46. The Government's failure to disclose that information does not render his guilty plea unknowing or involuntary. Doc. 78 at 8 (citing United States v. Baez-Arrogo, 553 Fed.Appx. 922, 925 (11th Cir. 2014) (government's failure to disclose impeachment evidence does not make defendant's guilty plea involuntary or unknowing) & Davidson v. United States, 138 Fed.Appx. 238, 239 (11th Cir. 2005) (new information that would-have impeached a search warrant affidavit does not unwind defendant's guilty plea); see also Carter v. United States, 2017 WL 1028584 at *2 (S.D. Ga. Mar. 16, 2017) (citing same cases and finding that Ruiz applies to the cases affected by the Ippolito-Valoze affair).

         McMillar rejects this line of cases, arguing that the Court's Local Rules and the Government's open file policy required the Government to affirmatively disclose any impeachment evidence independent of Ruiz. Doc. 75 at 4; doc. 82 at 6-7. But even a close reading of Local Rule 16.1 only requires the Government to permit defense counsel to inspect and copy the evidence it holds. S.D. Ga. L. R. 16.1. Nothing in the Rule refers to the disclosure of impeachment information. And aside from his reference to the Government's open file policy - again, permitting the inspection and copying of the evidence it holds against the defendant - McMillar cites no case law requiring pre-plea disclosure of Brady evidence. See docs. 75 & 82; see generally Brady v. United States, 397 U.S. 742, 757 (1970) (“A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the [Government's] case.”).

         Misconduct claims justify relief on collateral review only if the prosecutor's actions rendered the proceedings “so fundamentally unfair as to deny [a defendant] due process.” Davis v. Zant, 36 F.3d 1538, 1545 (11th Cir. 1994). Movants thus must show that there is “a reasonable probability that the outcome was changed” by the prosecutor's actions. Id. McMillar's lack of compromising information that - only hypothetically, it must be remembered[3] - might have resulted in dismissed indictment (and thus never reaped a plea agreement) does nothing to unwind his knowing and voluntary plea, based on his unambiguous admission of guilt. Docs. 75 at 4-5 & 82 at 7. His motion to vacate his sentence because of prosecutorial misconduct, therefore, should also be DENIED on the merits.

         In sum, the Government's motion to dismiss Leonardo Levette McMillar's 28 U.S.C. § 2255 motion should be GRANTED (doc. 78) and McMillar's § 2255 motion to vacate his sentence should be DENIED (doc. 75) both as untimely and on the merits.[4] For the reasons set forth above, it is plain that he raises no substantial claim of deprivation of a constitutional right. Accordingly, no certificate of appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”).

         This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to Magistrate Judge's Report and Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.

         After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. ...


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