United States District Court, W.D. Tennessee, Western Division
For Trymane Anderson, Movant: Robert Brooks, Memphis Criminal Appeals, Memphis, TN.
For United States of America, Respondent: David Pritchard, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Memphis, TN.
ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, UNITED STATES DISTRICT JUDGE.
On February 24, 2012, counsel for Defendant Trymane Anderson filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel Coleman Garrett provided ineffective assistance by failing to advise Defendant that:
[t]he government had offered to allow the defendant to plead guilty to the original indictment and . . . had advised counsel for the defendant that if he did not plead guilty as charged the government would amend the indictment to add an additional count that would add 10 years to his sentence.
(ECF No. 1 at 4.) Defendant alleges that, had counsel shared the information, he would have pled guilty as charged. (Id.) When Defendant did not plead guilty, a four count superseding indictment was returned against him. (Id.) On June 1, 2012, the Court directed the United States to respond to the motion to vacate. (ECF No. 9.) On March 3, 2013, the United States filed a response contending that Defendant's motion is without merit. (ECF No. 14 at 1.) An evidentiary hearing was held on March 20, 2014. (ECF No. 25.)
I. PROCEDURAL HISTORY
On April 15, 2008, a federal grand jury in the Western District of Tennessee indicted Defendant Anderson on one count of possession of cocaine base with the intent to distribute and distribution, in violation of 21 U.S.C. § 841(a) (1). (Criminal (" Cr.") ECF No. 1.) During a report date on December 19, 2008, Assistant United States Attorney (" AUSA") Kimbrell-Parks told United States District Judge Jon Phipps McCalla that she had " submitted a plea agreement" to attorney Garrett, but had not heard back. (Cr. ECF No. 171 at PageID 825.) Defendant Anderson had not appeared at the last three report dates. (Id.) Later that morning Ross Sampson appeared for Coleman Garrett, who was attending a seminar, and advised Judge McCalla that he was " anticipating a change of plea" and that " the government has submitted a plea agreement" but Garrett had not had a chance to review the agreement with Defendant." (Id. at PageID 827-28.) When Defendant Anderson arrived in the courtroom, Judge McCalla advised him that his next court date was January 9, 2009, for a " report and/or change of plea" and to " get with Mr. Garrett, go by and check with him at his office. . . . Mr. Garrett actually is in a seminar today, but you need to make an appointment to come in and see him as soon as you can so you can go over whatever the situation is going to be." (Id. at Page ID 832-33.)
At the report date on January 9, 2009, the matter was set for trial. (Cr. ECF No. 172 at PageID 836-43.) On January 28, 2009, a federal grand jury returned a superseding indictment against Defendant Anderson charging him with two counts of possession of cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (Counts One & Two), one count of possession of a firearm after the conviction of a felony, in violation of 18 U.S.C. § 922(g) (Count Three), and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Four). (Criminal (" Cr.") ECF No. 83).
A jury trial commenced on March 9, 2009, before United States District Judge Bernice Donald. (Cr. ECF No. 103.) On the first day of trial, Defendant Anderson entered an open plea to Counts One and Two of the superseding indictment without the benefit of a plea agreement. (Id.) Judge Donald stated on the record that the plea " would not really pretermit the evidence on the drug crimes because the government has got to produce the . . . connection with the drug trafficking business, so I want to make sure that we all understand that." (Cr. ECF No. 152 at Page ID 449.) When Judge Donald asked Defendant if he was satisfied with the representation provided by Mr. Garrett and if Garrett had discussed the charges, the penalties, and the strategy for going forward, Defendant replied, " Yes, ma'am." (Id. at PageID 451-52.) Judge Donald asked Defendant Anderson if he understood " that even though you are pleading guilty to these two drug counts and the jury would not have to make any decisions, the jury would still likely hear proof about those events because of the 924(c) charge. (Id. at PageID 452-53.)
After the testimony of witnesses, but before the jury was charged on March 10, 2009, Defendant pled guilty to the two remaining counts. (Cr. ECF No. 105.) Attorney Garrett advised Judge Donald that he " ha[d[ spoken at length with [his] client regarding his desire to terminate his trial and enter pleas to the remaining counts of this indictment and he has indicated that that is what he chooses to do at this time. And I told him, I explained to him that the process would be the same as it related to the first two counts of the indictment, that he would be pleading to the court on both counts on Count Three and Four, and went over the statutory penalties and his desire again, and that is what he has indicated that he wants to do. (Cr. ECF No. 154 at PageID 644.) Before taking Anderson's guilty pleas, Judge Donald asked if he was " satisfied with the representation provided [ ] by Mr. Garrett?" and Defendant responded, " Yes, ma'am." (Cr. ECF No. 154 at PageID 646.) Attorney Garrett told Judge Donald that Defendant " Anderson had a concern, a question about even though we had gone over previously the consecutive nature of his sentence as it relates to the fourth count of the indictment, and I have once again explained to him that it would run consecutive to any further sentence that he receives in this matter." (Cr. ECF No. 154 at PageID 651.) Judge Donald stated, " that's correct, and that's [ ] statutory, there is no getting around it. If you plead to it, it has to run consecutive to any other sentence." (Id.) Defendant replied that information did not change his mind on going forward. (Id.) Attorney Garrett also stated on the record that he had " gone over the proposed jury instructions with Mr. Anderson. I have explained to him the difference between actual and constructive possession. And as a matter of fact, when he came in this morning that was the terminology that he used and based on the proof that was submitted he wanted to change his plea because he realized that that was sufficient for constructive possession. . . . So he does understand the distinction between the two and it's not necessary for him to have owned the weapon, that if it was, as the court has explained, within proximity of his location and available to him then that would be sufficient." (Id. at PageID 654.)
On October 26, 2009, Judge Donald conducted a sentencing hearing, at which time Defendant Anderson expressed dissatisfaction with Garrett, stating that he had wanted to plead guilty to the drug charges, that he didn't understand why he was charged with the gun, and that counsel proceeded to trial without his consent. (Cr. ECF No. 155 at PageID 679-80.) Judge Donald explained that if counsel can't negotiate a charge away, a defendant must enter a plea of not guilty and go to trial on it. (Id.) Judge Donald stated:
Well, Mr. Anderson, I know I would have explained to you that you had an absolute right to plead not guilty and go to trial. And I would have ascertained that it was your desire voluntarily to go to trial. And I would have also inquired whether you need to talk with your attorney about anything that was going on and you . . . but at the time I took your plea I would have ascertained that your plea was a knowing, voluntary, counseled and informed plea and you apparently didn't tell me about any problems with counsel at that time, nor did you request to have a change of counsel at that time. . . . Now I would imagine that what is happening now is the realization of the magnitude of the time that is involved in this case. And again that is not something that counsel has any control over, that's a congressional issue. So we will go forward, but I will certainly allow you to make any statement on the record that you want to make during the course of this sentence.
(Id. at PageID 683-84.) Judge Donald imposed a sentence of one hundred eighty (180) months imprisonment. (Cr. ECF No. 132.) Judgment was entered on October 27, 2009. (Cr. ECF No. 135.)
Defendant filed a notice of appeal. (Cr. ECF No. 141.) Defendant raised a single issue: the Court erred in applying an official-victim enhancement. (Cr. ECF No. 159.) On March 24, 2011, the United States Court of Appeals for the Sixth Circuit determined that Judge Donald's application of the six-level enhancement for official victim status was improper, vacated Defendant's sentence, and remanded the case for resentencing. (Id.) On July 7, 2011, Judge Donald sentenced Anderson to one hundred sixty-one (161) months in prison. (Cr. ECF No. 168.) Defendant did not appeal.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...