United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
J. DANIEL BREEN, Chief District Judge.
On December 7, 2011, Defendant, Latonia Croom filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel provided ineffective assistance during her sentencing hearing. (Docket Entry ("D.E.") 1.) On June 27, 2012, the Court directed the United States to respond to the motion to vacate. (D.E. 2.) On November 15, 2012, the United States filed an answer contending that Defendant's motion is without merit. (D.E. 14.)
I. PROCEDURAL HISTORY
On March 16, 2009, a federal grand jury returned a seven-count indictment against Latonia Croom and Christopher Ivory. (Indictment, Criminal ("Cr.") D.E. 1.) Croom was charged with conspiracy to possess with intent to distribute and distribution of "Ecstasy", 3, 4-Methylenedioxy Amphetamine, in violation of 21 U.S.C. § 846 (Count One); possession of approximately 200 dosage units of "Ecstasy", 3, 4-Methylenedioxy Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two); possession of approximately 200 dosage units of "Ecstasy", 3, 4-Methylenedioxy Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three); possession of approximately 300 dosage units of "Ecstasy", 3, 4-Methylenedioxy Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Four); possession of approximately 300 dosage units of "Ecstasy", 3, 4-Methylenedioxy Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Five); and possession of firearms by a convicted felon (Count Seven). ( Id. at 1-7.) On July 21, 2009, Croom pled guilty to Counts One and Seven of the indictment, pursuant to a written plea agreement. (Minute ("Min.") Entry, Cr. D.E. 37.)
The plea agreement provided as follows:
Come now the parties herein, the defendant, LATONIA CROOM, being represented by counsel, M. DIANNE SMOTHERS, and the United States being represented by JERRY R. KITCHEN, Assistant United States Attorney for the Western District of Tennessee and hereby agree as follows.
1. The following plea agreement constitutes the entire agreement between the parties and the parties agree that any issues not specifically addressed by this plea agreement shall be resolved by the Court in accordance with the applicable statutes, guidelines, rules and case law.
2. The defendant agrees to plead guilty to Count's [sic] 1 and 7 of the Indictment in the above-styled cause. The defendant will pay the $200.00 special assessment prior to sentencing.
3. There is no agreement as to the appropriate criminal history of the defendant.
4. Should it be judged by the Government that the defendant has committed or attempted to commit any additional crimes or has engaged in any conduct constituting, obstructing or impeding justice within the meaning of United States Sentencing Guidelines Section 3C1.1 or has failed to make any court appearances in this case, from the date of the defendant's signing of this plea agreement to the date of the defendant's sentencing, or if the defendant attempts to withdraw his/her plea, the Government will be released from its obligations and would become free to argue for any sentence within statutory limits. Such a breach by the defendant would not release the defendant from this plea of guilty.
5. Based on the Defendant's anticipated future assistance to the Government, it is contemplated that the Government may recommend to the Court a departure in the Defendant's sentence pursuant to U.S. Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e). This would be solely within the discretion of the Government and is not part of the plea agreement. Substantial assistance is understood by both parties to require good faith during all phases of the cooperation period, including the Defendant's provision of complete and truthful information which assists in the investigation or prosecution of other individuals and complete and truthful testimony at subsequent proceedings when needed. The Defendant acknowledges that the Government's determination of whether the Defendant has cooperated fully and provided substantial assistance, and the Government's assessment of the value, truthfulness and completeness of the Defendant's assistance, is solely within the judgment and discretion of the Government and shall be binding upon the Defendant.
6. The parties agree that the Government will recommend the following: (1) that the Defendant receive a three-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines § 3E1.1; and (2) that the Defendant be sentenced at the lowest end of the applicable guideline range.
7. The Defendant is aware that Title 18 United States Code, section 3742 affords him/her the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this plea agreement, the defendant hereby waives all rights conferred by Section 3742 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure from the guideline range that the court establishes at sentencing. The defendant further understands that nothing in this agreement shall affect the government's right and/or duty to appeal as set forth in Title 18, United States Code, Section 3742(b). However, if the United States appeals the defendant's sentence pursuant to Section 3742(b), the defendant shall be released from the above waiver of appellate rights. By signing this agreement, the defendant acknowledges that he/she has discussed the appeal waiver set forth in this agreement with his/her attorney. The defendant further agrees, together with the United States, to request that the district court enter a specific finding that the defendant's waiver of his/her right to appeal the sentence to be imposed in this case was knowing and voluntary.
8. The defendant understands and agrees that the Court will make the final determination of facts as to any sentence and as to any mitigating or aggravating factors concerning the sentence to be imposed. Adverse rulings by the Court shall not be grounds for the withdrawal of the Defendant's guilty plea or to appeal any sentence imposed. The Court is not limited to consideration of the facts and events provided by the Government.
9. There are no other agreements between and among the parties to this agreement. The defendant enters this agreement freely, knowingly, and voluntarily, and upon the advice of counsel.
(Plea Agreement, Cr. D.E. 38 at 1-4.)
On April 11, 2011, the Court sentenced Defendant to thirty-six months of imprisonment, to be followed by a three-year term of supervised release. (Min. Entry, Cr. D.E. 101.) The Court's judgment was entered on April 12, 2011. (Judgment ("J."), Cr. D.E. 102.) Croom did not appeal.
On December 7, 2011, Defendant filed this motion to vacate alleging that her attorney, Smothers, provided ineffective assistance by failing to investigate and challenge the two-point enhancement to her Criminal History Category under United States Sentencing Guidelines ("U.S.S.G.") § 4A1.1(d) ...