Opinion
CASE NO. 2:09-CV-616, CRIM. NO. 2:07-CR-00086.
December 8, 2010
ORDER and REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the amended motion, Doc. 79, Petitioner's memoranda in support and supplemental authority, Docs. 102-105, the return of writ, Doc. 84, the traverse, Docs. 85, 88, and the exhibits of the parties. Petitioner's motion for leave to file an amendment to his memorandum in support, Doc. 103, is GRANTED. For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner's motion for return of forfeited property, Doc. 98, be DENIED and that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
Petitioner was convicted, pursuant to a plea agreement, Doc. 31, on one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), one count of using, carrying and brandishing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and one count of possession of a firearm not registered to him in the National Firearms Registration and Transfer record in violation of 26 U.S.C. §§ 5861(d), 5871; he also agreed to forfeit four firearms used, carried or brandished during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(d)(1). Docs. 32, 37. On August 7, 2008, Petitioner was sentenced to an aggregate prison term of sixty months plus five years supervised release. Docs. 55, 56.In his amended motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to challenge the indictment, failed "to search the record to discover that Petitioner was not a regulated person" or required to register firearms, failed to object at sentencing to enhancement of his sentence for brandishing a firearm, failed to investigate or present a defense that Petitioner was exempt from the charges due to his gun hobby or as without sufficient connection to interstate commerce, failed to raise the issue of irreconcilable conflict between his convictions on 26 U.S.C. § 5841 and 18 U.S.C. § 926, failed to raise as a defense Petitioner's right to bear arms under the Second Amendment, failed to file a timely notice of appeal, permitted Petitioner to plead guilty without searching the record for viable defenses or arguing that Petitioner should only be civilly penalized, and failed to argue that the District Court lacked jurisdiction. Amended § 2255 Motion, Doc. No. 79. It is the position of Respondent that Petitioner's claims are without merit.
On July 27, 2009, petitioner filed a § 2255 motion, Doc. 64. However, he thereafter requested to withdraw his § 2255 motion and proceed under Rule 60(b) of the Federal Rules of Civil Procedure. This Court denied his Rule 60(b) motion. Doc. 77. On February 25, 2010, petitioner filed an amended § 2255 motion. Doc. 79.
INEFFECTIVE ASSISTANCE OF COUNSEL
Because a criminal defendant waives numerous constitutional rights when he pleads guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the Court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). Further, a criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970).
A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir. 1988). In order to obtain relief, a prisoner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
The second, or "prejudice" requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner has failed to meet this standard here.
Petitioner contends that his attorney improperly failed to challenge the sufficiency of the indictment or argue that Petitioner is not a regulated person subject to prosecution under 21 U.S.C. § 841. This claim is plainly without merit. "[D]efects in an indictment do not deprive a court of its power to adjudicate the case." United States v. Cotton, 535 U.S. 625, 629-30 (2002). Procedural due process requires that the indictment: "(1) contain[] the elements of the charged offense, (2) give[] the defendant adequate notice of the charges, and (3) protect[] the defendant against double jeopardy." Joseph v. Coyle, 469 F.3d 441, 463 (6th Cir. 2006) (quoting Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005)). These requirements were met in this case. The Indictment, Doc. 15, appropriately tracks the language in the statutes of the offenses charged and thereby provided petitioner constitutionally adequate notice of the charges against him such that he was sufficiently able to prepare a defense. Petitioner's argument that he is not a "regulated person" and is therefore exempt from prosecution under 21 U.S.C. § 841(a), and that his attorney should have challenged the Indictment on this basis or because the statute was not properly enacted, likewise fails. See United States v. Moore, 423 U.S. 122, 340 (1975) (criminal liability under 21 U.S.C. § 841 reaches any person); see also United States v. Johnson, 831 F.2d 124, 128 (6th Cir. 1987) (same); United States v. Richards, No. 40-10, 2007 WL 2915180 (E.D. Ky. October 5, 2007) (rejecting same argument as raised by Petitioner in these proceedings).
Congress validly passed 21 U.S.C. § 841 into law; it was signed by the President and duly enacted. . . .
Whether Congress has enacted a title into positive law is relevant only when the wording of the title is in dispute. That is not the case here. When a title is enacted into positive law, Congress gives its authority to the language as it appears in that particular title of the United States Code. Washington-Dulles Transp., Ltd. v. Metro. Washington Airports Auth., 263 F.3d 371, 378 (4th Cir. 2003). Failure to enact a statute into positive law is, at best, only of "evidentiary significance and does not render the underlying enactment invalid or unenforceable." Ryan v. Bilby, 764 F.2d 1325, 1327 (9th Cir. 1985). "The text of a code section in an enacted title can be taken as authoritative and need not be checked or verified with the corresponding section in the original Statutes at Large which must be done with respect to those titles which have not yet been enacted." Id. citing Sutherland Statutory Construction § 36A:10 at 132 (6th ed. 2001). Notably, Congress has enacted less than half of the titles of the United States Code into positive law.United States v. Romig, No. 03-CV-2640, 2003 WL 22143730, at *1 n. 2 (D.Minn. Aug. 18, 2003). See also United States v. Rickards, No. 4-10, 2007 WL 2915180 (E.D. Ky. Oct. 5, 2007) ("[N]umerous convictions reviewed and upheld under § 841 collectively refute Defendant's contentions [that the statute is invalid].")
As discussed by the United States Court of Appeals for the Sixth Circuit in United States v. Frazier, 314 Fed.Appx. 801 (unpublished), 2008 WL 4949153, at *6 (6th Cir. Nov. 19, 2008), Petitioner's argument that the Second Amendment protects his right to carry or brandish a firearm during and in relation to a drug trafficking crime is plainly without merit:
We have long held congressional regulation of firearms constitutional. See, e.g., United States v. Warin, 530 F.2d 103, 107 (6th Cir. 1976) ("Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms."). Indeed, we have also specifically found both 18 U.S.C. §§ 922 and 924 constitutional. United States v. Calor, 340 F.3d 428, 430-31 (6th Cir. 2003) ("This Circuit has upheld the constitutionality of § 922(g)(8).") (collecting cases); United States v. Dumas, 934 F.2d 1387, 1388-90 (6th Cir. 1990) (rejecting a series of constitutional challenges to 18 U.S.C. § 924); United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (rejecting defendant's Second Amendment challenge to 924(c)). In United States v. Napier, 233 F.3d 394 (6th Cir. 2000), we dismissed the defendant's Second Amendment challenge, noting that "[e]very circuit court which has had occasion to address the issue has upheld § 922 generally against challenges under the Second Amendment." Id. at 403 (collecting cases); see also United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) ("[I]t is now well-settled that Congress did not violate the Second Amendment in enacting [§ 922(g)(1)].")Id. Thus, Petitioner cannot establish the ineffective assistance of counsel under the two-prong Strickland test for failing to raise these issues.
At Petitioner's guilty plea hearing, the Assistant United States Attorney read the terms of Petitioner's plea agreement advising him of the mandatory and maximum penalties he faced and his agreement to forfeit the firearms seized from his home on March 13, 2007. Guilty Plea Transcript, Doc. 78, at 3-5. The parties agreed that, for purposes of sentencing, Petitioner would be held accountable for less than 25 grams of cocaine, that Petitioner had accepted responsibility; and that he timely filed his intention to plead guilty. Id., at 5. Petitioner affirmed these terms of his plea agreement. Id., at 6. Defense counsel had talked "at great length" and "over several occasions" with Petitioner regarding the charges against him. Id., at 9. Testifying under oath, id., at 7, Petitioner stated he had ample time to review his case with his attorney and was satisfied with the representation of his trial counsel. Id., at 9. The trial judge reviewed with Petitioner all of the rights he was waiving by entry of his guilty plea and Petitioner at all times indicated that he understood. He asked no questions in that regard. Id., at 9-12. He indicated that he had reviewed his plea agreement with his trial attorney and that no other promises had been made to induce his guilty plea. Id., at 13. Petitioner had advised his attorney of all of the facts on which the charges were based and his attorney had advised him on the applicable law. Id., at 16. The trial judge advised Petitioner of the elements of the offenses charged, and again reviewed with him the mandatory and maximum penalties that he faced. Id., at 16-20. Petitioner at all times indicated that he understood. Petitioner also agreed to forfeit the four firearms listed in the Indictment. Id., at 20-21.
A Special Agent of the ATF summarized the facts of the case as follows:
On March, 1, 2007, an ATF undercover Agent, which was me, met with Joe Borders at his residence at 4885 Deep Hollow Drive, Columbus, Ohio. Shortly after Agent entered, Borders picked up a rifle, later determined to be a machine-gun, and began waving this gun around before pointing it out the dining room window, while indicating that he was obtaining a site picture of the freeway through the scope. Borders said, "I'm ready for war."
* * *
The Agent negotiated a trade of this carburetor with Borders in exchange for a Mossberg 12-gauge shotgun, a Hi-Point 9mm carbine with a sawed-off stock, and a one-16th ounce of cocaine. The Agent and others were sitting at the dining room table with Borders, and there were two pistols on the table. During negotiations, Borders and these individuals were handling these pistols at various times, then placed them down on the table in front of them. It was clear that Borders was intending to make the presence of these firearms known in an effort to intimidate the Agent. Borders indicated that the Agent would have to drive him to get the cocaine. And before leaving, Borders picked up one of the pistols that was lying on the table, and in clear view of the Agent, put it into his pants pocket. They then drove to a residence, 5979 Lucky Charm Drive, Galloway, Ohio, where Borders obtained a quantity of cocaine, that he provided directly to the undercover agent.
* * *
This cocaine was later submitted to the Columbus Police Crime Lab, resulting in a determination that it was, in fact, 1.6 grams of cocaine.
On March 13, 2007, a search warrant was executed on Borders' residence, 4885 Deep Hollow Drive, Columbus, Ohio. Recovered in the living room was a Stag Arms, Model Stag-15, .223 caliber suspected machine-gun, serial number 16080. This firearm was submitted to the ATF Firearms Technology Branch, who through examination and test-firing, determined that this weapon is a machine-gun as defined in 26 U.S.C. 5845(b).
Joseph Matthew Borders has no firearms registered to him in the National firearms Registration and Transfer Record. These violations occurred in the City of Columbus, Franklin County, the Southern Judicial District of Ohio.Id., at 21-23. With the exception of stating that he laid his weapon next to the couch, and not on the table, petitioner agreed with the accuracy of this statement. Id., at 24.
Contrary to Petitioner's argument here, the record fails to support his allegation that he was exempt from registering his firearms as required under 26 U.S.C. § 5861(d), or that there was a viable basis on which to challenge the constitutionality of the foregoing statute such that defense counsel performed in a constitutionally ineffective manner by failing to raise this issue. See, e.g., United States v. Springer, 609 F.3d 885, 889 (6th Cir. 2010) ( 26 U.S.C. 5861(d) prohibits the possession of an unregistered firearm unless the firearm is in the possession or under the control of the United States); United States v. Bournes, 105 F.Supp.2d 736, 737-38 (E.D. Mich. 2000) (discussing the validity of the provisions of the National Firearms Act) (citations omitted). Petitioner refers to, and this Court is aware of, no cases supporting his arguments in this regard.
26 U.S.C. § 5861(d) provides:
It shall be unlawful for any person —
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record[.]
The record likewise fails to support Petitioner's assertion that defense counsel performed in a constitutionally ineffective manner at sentencing. Petitioner's recommended sentence under the advisory United States Sentencing Guidelines was 51-63 months on Counts One and Three, and a mandatory consecutive term of 84 months on Count Two. See PreSentence Investigation Report; Sentencing Transcript, Doc. 83. Petitioner was advised at the time that he entered his guilty plea that he faced a mandatory consecutive term of seven years incarceration on Count Two of the Indictment, which charged him with using, carrying, and brandishing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c)(1)(A)(ii). Guilty Plea Trasncript, at 17. At sentencing, the trial judge questioned whether the facts, as set forth in the PreSentence Investigation Report, more appropriately indicated that Petitioner used, rather than brandished, the firearms, and whether Petitioner should therefore instead be sentenced to a lesser mandatory consecutive term of five years incarceration. Sentencing Transcript, at 3-15. Ultimately, the issue was resolved when the government moved, pursuant to 18 U.S.C. § 3553 and U.S.S.G. § 5K1.1, that Petitioner be sentenced to an aggregate term of five years incarceration on all of the charges. Id., at 24-26, 34. The parties agreed to such a construction, and the trial judge imposed a sentence of one day on Counts One and Three, and a sentence of five years on Count Two. The trial judge advised Petitioner as follows:
Mr. Borders, I want to tell you that, in terms of getting a break, you have received an enormous, enormous break in this case. You were facing . . . at one time, a sentence of 51 to 63 months on the drug count — let's say five years on the drug counts — plus seven years on the use of a firearm during and in relation to a drug trafficking offense. So you were facing. . . . 12 years in prison. That's what the law calls for for these crimes that you committed. That tells you something, Mr. Borders, about the seriousness of the crimes that you committed. The law calls for 12 years in prison.Sentencing Transcript, at 31-32.
The record fails to support Petitioner's contention that the government would have been unable to prove the charges against him. As noted by the trial judge at sentencing, Petitioner's negotiated guilty plea substantially reduced his prison exposure and his actual sentence was well below that recommended under the United States Sentencing Guidelines. Under these circumstances, it is unlikely that any counsel would have advised Petitioner not to accept the plea agreement. In short, petitioner has failed to establish that, but for the ineffective assistance of counsel, he would not have pleaded guilty, but would have proceeded to trial. See Hill v. Lockhart, 474 U.S. at 59.
Further, the record fails to support Petitioner's allegation that his guilty pleas were not knowing, intelligent and voluntary or that the government illegally "manipulated" his sentence. See, e.g., Supplemental Authority, Doc. 102. In light of Petitioner's guilty pleas, Petitioner cannot now raise a defense of entrapment nor can he complain that a jury failed to find him guilty beyond a reasonable doubt of all elements of the offenses charged, as he appears to argue in the supplemental memoranda in support of the § 2255 petition, Docs. 102-104.
[T]he representations of the defendant, his lawyer, and the prosecutor at [a guilty plea proceeding], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.Blackledge v. Allison, 431 U.S. 63, 73-75 (1977). "A voluntary and unconditional plea of guilty generally waives any nonjurisdictional claims that arose before the plea, including the defense of entrapment." United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002).
Petitioner's allegation, first raised in his October 25, 2010, "Notice of Supplemental Authority," Doc. 105, that he was improperly sentenced in view of prior uncounselled convictions, is barred by the one-year statute of limitations, 28 U.S.C. § 2255(f). See Duncan v. Walker, 533 U.S. 167, 172 (2001) (statute of limitations is not tolled during the time that a habeas corpus petition is pending); Mayle v. Felix, 545 U.S. 644, 650 (2005) (new claims that "differ in both time and type from those set forth in the original" § 2255 petition are time barred). Moreover, Petitioner should have raised the issue at sentencing or on direct appeal. See Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000); United States v. Frady, 456 U.S. 152, 165 (1982).
In his final claim for relief, Petitioner asserts that he was denied his right to appeal and the effective assistance of counsel because "my lawyer . . . was told to appeal the sentence within ten days and did not." Petition, Doc. 60. After imposing sentence, the trial judgment advised Petitioner of his right to appeal, of the time limit for filing an appeal, and of his right to counsel on appeal:
In his Amended Petition, Doc. 79, at 3, Petitioner indicates "[t]hat counsel was ineffective for not entering notice of appeal when instructed to do so within (10) days." In his petition for a writ of mandamus, Doc. 106, at 1, petitioner complains that "counsel failed to appeal the case as instructed."
I do advise you that you have a right to appeal your sentence if you feel for any reason that the sentence I've imposed is not a reasonable sentence. Any appeal must be commenced by the filing of a Notice of Appeal with the Clerk of this court, the district Court, within ten days following the filing of the Court's judgment. If you're unable to pay the costs of an appeal, you have the right to apply for leave to appeal in forma pauperis which means without the payment of any cost or expense to you.
Furthermore, if you so request, the clerk of this court will forthwith file a Notice of Appeal on your behalf.Sentencing Transcript, at 36-37.
Respondent contends that defense counsel had no duty to further consult with Petitioner regarding his desire to file an appeal under the United States Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (discussing counsel's obligations where the defendant has not conveyed his wishes one way or another regarding the filing of an appeal). Return of Writ, Doc. 84, at 10. In Petitioner's traverse, Docs. 85, 88, Petitioner responds in relevant part:
Regardless of this Plaintiff [sic] clearly made his intentions to appeal clear to counsel or a worst case counsel knew that Petitioner was not happy with how proceedings went. With all the actions by government actors which tend to stress one out, pressure applied to plea, and family matters effecting [sic] clear thinking . . . [w]here the person to end the proceedings will do just about anything to end litigation.
With this in mind and counsel allowing his client to be treated in this manner, how is counsel competent or effective?
* * *
Petitioner's attorney should have at least counseled him on the Ohio Law change which surely was posted on the Criminal Law Reporter . . . [A]ny rational petitioner not seeking appeal . . . based upon the totality of the circumstances and available defenses since discovered . . . would appear to not have been competent to stand trial or enter into any plea knowing and voluntary. Besides, appeal should have been a standard operating procedure of counsel to protect and secure "his" client's rights, immunities, and privileges.Id., at 13-14. Petitioner contends that he had arguably meritorious issues for appeal and that his attorney therefore should have filed a notice of appeal, or at least should have consulted further with him regarding an appeal. See id.
The failure of an attorney to file a timely appeal after having been requested to do so by a defendant constitutes the ineffective assistance of counsel.
[E]very Court of Appeals that has addressed the issue has held that a lawyer's failure to appeal a judgment, in disregard of the defendant's request, is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. See Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); United States v.v Horodner, 993 F.2d 191, 195 (9th Cir. 1993); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992); United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988).Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998); see also Roe v. Flores-Ortega, 528 U.S. at 478. Where the defendant has not conveyed his wishes one way or another to counsel regarding the filing of an appeal, the United States Supreme Court has held:
We cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. . . . For example, suppose that a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years' imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is "professionally unreasonable," [ Strickland], at 691, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, as a constitutional matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel's duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information. We therefore reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.
We instead hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. See id., at 690, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (focusing on the totality of the circumstances). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.Id., at 480-481.
In considering the totality of circumstances in this case, this Court is unpersuaded that Petitioner has met his burden of establishing the ineffective assistance of counsel as set forth in Roe v. Flores-Ortega. As discussed supra, Petitioner was sentenced, pursuant to the terms of his negotiated guilty plea, to a term of imprisonment that fell well below the recommended sentence under the United States Sentencing Guidelines and well below, too, the mandatory consecutive term of seven years for brandishing a firearm. The transcript of Petitioner's sentencing hearing indicates that the parties had discussed, prior to that hearing, that a five year prison term would be more appropriate in view of the charges, and in light of Petitioner's cooperation with the government. Sentencing Transcript, at 26 ("We talked about this before you came in, Your Honor."). It appears, therefore, that the sentence imposed was not unanticipated by Petitioner. When asked if he wished to make a statement at sentencing, Petitioner indicated in relevant part:
I did it. You know. Like, if I knock this over, I did it. It's my fault. You know what I mean. And I'm not trying to place the blame on anything else. . . . I screwed up.Id., at 30-31.
Further, Petitioner manifestly had no qualms about asking questions or making his wishes known to the trial judge at the sentencing hearing. After the trial judge advised Petitioner of his appeal rights, Petitioner thanked the Court for granting his request to self surrender. Id., at 37. Petitioner then asked if the ankle monitor could be removed. Id.
COURT: You're on electronic monitoring?
DEFENDANT: (Nodding affirmatively).
COURT: Well, that would require a motion.
DEFENDANT: It's up to him?
COURT: And frankly . . . Mr. Borders, I don't think . . . that I would be inclined to grant that.
DEFENDANT: It never hurts to ask.
COURT: Well, no, it doesn't ever hurt to ask. . . .Id., at 37-38. Petitioner then requested that he be given as long as possible before having to report to prison so that he could finish work. Id., at 38. The trial judge advised Petitioner that he would have three or four weeks. Id., at 38-39.
DEFENDANT: And after a month from now, then what happens?
COURT: . . . [G]et busy. You should be putting your affairs in order before now. I think you knew you were faced with prison.
DEFENDANT: I thought I was going to get probation or parole, to be honest, because of the help I gave with [sic] the government.
COURT: Well, you weren't eligible for probation or parole. First of all, there is no such thing as parole anymore, but you were not eligible for probation from the very get-go. Once you pled guilty to these crimes, there was no way that you could get probation. And I'm sure Mr. Cicero told you that.
Anything else, Mr. Borders?
DEFENDANT: No, thank you, sir.Id., at 39-40. Still, Petitioner did not ask that a notice of appeal be filed on his behalf. Further, and contrary to his arguments in these proceedings, the record fails to reflect that the case presented any nonmeritorious issues for appeal. There is no evidence even suggesting that petitioner ever indicated to his trial counsel that he wanted to pursue an appeal. See Roe v. Flores-Ortega.
For all the foregoing reasons, this Court concludes that Petitioner has failed to establish the ineffective assistance of counsel.
MOTION FOR RETURN OF PROPERTY
Petitioner has also filed a motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. Rule 41 provides in pertinent part as follows:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Petitioner argues that the firearms forfeited by him pursuant to the terms of his negotiated guilty plea should be returned because he was denied his right to appeal, and his right to the effective assistance of counsel, and because he is not guilty of the charges for which he stands convicted. See Doc. 98. Petitioner argues that his agreement to forfeit the firearms was not made knowingly and voluntarily; Petitioner also argues that he is not guilty of the crimes charged and he insists that he had a right to protect his property. See Doc. 101. Petitioner's arguments are not persuasive.
For all the reasons stated supra, the Court concludes that the record reflects no basis for the return of the forfeited firearms or their parts. The record indicates that petitioner knowingly, intelligently, and voluntarily agreed to forfeit the property at issue in this motion.
WHEREUPON, Petitioner's motion for leave to file an amendment to his memorandum in support, Doc. 103, is GRANTED. The Magistrate Judge RECOMMENDS that Petitioner's motion for return of property, Doc. 98, be DENIED and that this action be DISMISSED.
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
December 8, 2010