United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
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; 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.
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.
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).
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). 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.
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.
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.
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
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.”).
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 - 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.
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. 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.”).
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.
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.