United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION TO DENY AFFIDAVITS AND RESPONSE (ECF NO. 15), TO TERMINATE THE MOTION AT ECF No. 24, DENYING MOTION TO FILE DISC OF TRAFFIC STOP (ECF NO. 21), DENYING AND DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF
APPEAL ABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
J. DANIEL BREEN, Chief District Judge.
On January 4, 2013, Defendant, Felix Jelks, filed a motion pursuant to 28 U.S.C. § 2255 and supporting memorandum alleging that trial and appellate counsel provided ineffective assistance. (ECF No. 1.) On April 16, 2013, Defendant submitted an amended memorandum. (ECF No. 3.) On August 1, 2013, the Court directed the United States to respond. (ECF No. 4.) On August 23 and 26, 2013, the United States filed motions to release Defendant's former attorneys from the attorney/client privilege, which the Court granted. (ECF Nos. 5-8.) Because of the delay in filing counsels' affidavits, on February 21, 2014, the Court directed the United States to file a response within ten days. (ECF No. 11.) On February 25, 2014, the United States filed the affidavits of Defendants' former attorneys. (ECF No. 12.) On March 4, 2014, the United States filed a response incorporating the affidavits and contending that Defendant's motion was without merit. (ECF No. 14.)
On March 18, 2014, Jelks filed a motion "to deny affidavits of counsel and deny the response" because the latter was one day late. (ECF No. 15.) Defendant has suffered no prejudice because of the delay. The government's response and affidavits are necessary for the Court's determination of his claims. The motion is DENIED.
On April 3, 2014, Defendant filed a reply, and on three subsequent occasions, he supplemented his reply. (ECF Nos. 18, 22-24.) The last supplement filed on October 8, 2014, was captioned incorrectly as a motion. The Clerk is directed to terminate ECF No. 24 as a pending motion.
On May 6, 2014, Jelks sought to file a copy of the audio/video disc of his traffic stop provided by former counsel. (ECF No. 21.) Rule 7(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules") provides, in pertinent part that, "the judge may direct the parties to expand the record by submitting additional materials relating to the motion. The judge may require that these materials be authenticated." The disc has not been authenticated and is not required for the Court's determination of the issues. The motion is DENIED.
I. PROCEDURAL HISTORY
On February 9, 2009, a federal grand jury returned a two-count indictment against Felix Jelks and Darion Smith. (Indictment, Criminal ("Cr.") ECF No. 3.) Jelks was charged with conspiracy to possess over 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (Count One) and possession of 25.2 grams of cocaine base with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two). ( Id. ) On November 17, 2009, Defendant pled guilty to Count One of the indictment, pursuant to a written plea agreement. (Minute ("Min.") Entry, Cr. ECF No. 53.)
The plea agreement provided as follows:
Come now the parties herein, the defendant, FELIX JELKS, being represented by counsel, MICHAEL L. WEINMAN, 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 1 of the Indictment in the above-styled cause. The defendant will pay the $100.00 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. ECF. 54 at PageID 65-68.)
The United States summarized the evidence against Defendant at the change of plea hearing:
Your Honor, had this matter gone to trial, the government would have presented proof that would have shown that on two occasions, one August 29, 2006, the Jackson police department was conducting an undercover operation with the - utilizing a confidential informant and the ATF, wherein they set up a drug - undercover drug purchase from the defendant. The confidential informant contacted an individual who referred the informant to the defendant. Arrangements were made to meet with the defendant at a parking lot of a business establishment called "Looking Goods" here in Jackson. That was done, and on that date, after meeting with the defendant, a transaction was done. For approximately $650, 25.2 grams of crack cocaine was transferred and sold to the confidential informant. This was under the observation of the police. It was videotaped and audiotaped by the law enforcement. In addition, Your Honor, the investigation continued with the defendant, which further proof would have shown that on October 12, 2008, the defendant had traveled to, I believe it was Royse City, Texas, or actually down to Dallas, Texas, to purchase a large quantity of cocaine. On the way back through Royse City, Texas, he was stopped by local police officers for speeding, he along with his codefendant, Darion Smith. In a subsequent investigation, officers were able to - with the aid of a K-9 dog search of the vehicle, detected narcotics. And after a search of the vehicle, officers found approximately 2, 000 grams of powder cocaine and over $200, 000 of cash. The defendant previously had made the statement that he came to Dallas to purchase dope. That was prior to the officer finding, I believe, the contraband. After his arrest and that of Mr. Smith, the defendant did give a tape-recorded statement wherein he admitted that he had been purchasing large quantities of cocaine and distributing it in the Brownsville, Tennessee, area. And that would have been substantially the facts had this matter gone to trial regarding his involvement. And it indicated - the drugs were tested regarding the substances that were recovered in Texas, and it did test positive for powder cocaine. I believe it was over a kilo of powder cocaine. And then the crack cocaine was tested by the TBI. That would have been the facts, Your Honor.
(Cr. ECF No. 106 at PageID 179-81.) The Court asked Jelks "is that information basically correct insofar as your involvement in this matter is concerned?" and "are you pleading guilty to [Count 1] because you're in fact guilty of that offense, sir?" ( Id. at Page ID 181.) Defendant replied, "Yes, sir" to both questions. ( Id. )
On November 5, 2010, Defendant filed a motion to withdraw his guilty plea. (Cr. ECF No. 98.) At the initial hearing on the motion, the Court permitted Attorney Michael Weinman to withdraw from Defendant's representation and held the hearing in abeyance pending the appointment of new counsel. (Min. Entry, ECF No.101-2.) Attorney Lee Sparks was appointed. (Cr. ECF No. 102.) The Court entered an order granting the United States' motion to release Attorney Weinman from attorney/client privilege. (Order, Cr. ECF No. 118.) The hearing resumed on February 2, 2011. (Min. Entry, Cr. ECF No. 119.) After reviewing the transcript of the guilty plea hearing and listening to the testimony of Defendant and his former counsel, the Court denied Defendant's motion to withdraw his plea, stating:
Before the court is the motion of Felix Jelks to withdraw his plea that had previously been entered in this matter, this is in 09-10009, back in November of 2009. The court has heard the arguments of counsel, as well as the testimony presented in conjunction with this motion. The court has also received a copy of the transcript of which - of the plea colloquy the court conducted with Mr. Jelks back at that time. Of course, the burden is upon the defendant to show that there are basic - there are substantial or appropriate grounds for withdraw of the plea. And the defendant, in making that request, must show a fair and just reason for requesting the withdraw. And that, frankly, is because these matters need to have some finality. And if the person is simply allowed, just simply because he or she feel that they have maybe undertaken a bad bargain for some reason they should just immediately be able to withdraw their plea. And, certainly, the court goes through painstakingly specific and direct questions of the defendant, as it did in this case with Mr. Jelks, to make sure that he was fully aware of what he was doing and that what he was entering into was done freely and voluntarily. Going back over the transcript, the court, as has been read by Mr. Kitchen, through various portions of that did ask Mr. Jelks if he did understand what he was doing, if he had taken any type of medication or anything of that nature that would affect his ability to understand. He freely and frankly said he did understand what he was doing. That he - no one had put any pressure on him. That nobody threatened him. In fact, I go back to the plea colloquy, which the court called upon Mr. Kitchen to go over the potential plea agreement, that Mr. Jelks was reminded that the court will make the final determination as to any sentence, and as they were basically going through the agreement, that there were not other agreements between and among the parties to this agreement. And Mr. Jelks indicated that he did understand. Of course, his understanding is to the terms of the agreement he had with the government. He also was told about the potential 5K1 Motion that was discussed in the plea agreement. He understood that whatever - whatever, as far as any potential departure from that, if a motion is to be made, was to be solely within the determination or decision by the government. And that if the government made that motion, then it would be up to me, would be up to the judge to decide whether or not to grant such a motion. So there were certainly nothing in this hearing that would give to the defendant the indication that there was any promise or assurance of what his sentence would be, or that if a motion for a downward departure was to be made by the government that the court was involved in any type of agreement or determine - predetermination about what his sentence would be. It is kind of curious that Mr. Jelks would mention - because that's the reason I asked him, because I wasn't certain - but that somehow he was coming into the court that day to plead to 10, but that he would get five if he did plead guilty or if he got a 5K1. And, certainly, there was nothing ever mentioned in the plea colloquy about his getting 10 years or any time, other than the fact that his sentence, to which he understood, could be between five and 40 years. The court also makes note that this motion that Mr. Jelks directed Mr. Weinman, his previous attorney, to file was done almost a year after he entered his plea. That, in the court's mind, is indicative of certainly the allowance of a significant amount of time to allow pass before he made that type of decision. The defendant, frankly, and certainly in his plea colloquy, he has freely admitted he was guilty of this offense, according to what Mr. Kitchen indicated. And the defendant, he admitted in his plea colloquy that he had given a statement, a fairly damning statement of his involvement and of his guilt to these charges. So certainly that goes against him. The entry of the guilty plea, there was never any indication in the guilty plea colloquy that he was being rushed or pressured or that he was under any type of strain. He said he understood what he was doing. He had no questions of the court. He answered the questions of the court. Frankly, there is nothing to indicate any defect in that guilty plea hearing. As Mr. Kitchen also mentioned, Mr. Felix Jelks had been involved in the criminal justice system over a number of years. He has entered a substantial number of guilty pleas in the past. And the fact that he claims that he didn't listen to some of the questions I asked of him or wasn't paying attention, he was just wanting to get on with his investigation is preposterous. I frankly think that it's the most incredible bit of testimony this court has ever heard. And if it is the subject of perjury charges, I will direct the United States Attorney to make an investigation into that. It just is incredible. The prejudice to the government would be obvious, because if the government has to turn around and after a year go back and reconstruct the - prepare for a potential trial every time somebody decides they just made a bad bargain would always be prejudicial. Would be prejudicial to a defendant if the government was to yank the rug out from under him or her after a year after the person pled guilty, said we're not going to accept that plea any more, we're not going to do what we said. It just - it - certainly the potential for prejudice is obvious. The reasons that Mr. Jelks says that he wants to withdraw his plea is because Mr. Weinman, who is an attorney that this court is familiar with, who has practiced in front of this court for a number of years as a criminal defense lawyer, he's well qualified, he has been here a number of times, he's been on the Criminal Justice Act Appointment Panel for a number of years. And Mr. Weinman has testified that he never promised Mr. Jelks a specific sentence. He tried to give him his best estimate, considering all the circumstances surrounding this, including his cooperation, that type of thing. Frankly, I just do not believe that Mr. Weinman made that promise. I think that Mr. Jelks' recitation of that statement, again, is absolutely incredible. It is not true. The court credits Mr. Weinman as being a person who is a good lawyer, as a person who has proceeded in this courtroom on a number of occasion, is qualified to represent defendants. And, frankly, based on what I could hear, did everything he could to help Mr. Jelks obtain a reduced sentence, based upon his cooperation and the meeting with this FBI agent. The fact that the FBI didn't find - I mean, Mr. Jelks apparently couldn't give them enough information to go forward with. That's not the FBI's fault. That's not Mr. Weinman's fault. So as far as this court is concerned there is no basis for this motion to withdraw. The court does not give credence to Mr. Jelks' testimony, what he claims Mr. Weinman told him. And I just, again, find that that's not accurate, it's not credible, and certainly didn't happen as far as the court is concerned. For all of those reasons, the court denies the motion to withdraw the plea. We have a guilty plea that's been entered, and we need to set this matter for sentencing.
(Cr. ECF No. 134 at PageID 355-61.)
At the sentencing hearing held on April 6, 2011, Attorney Sparks argued that, despite Defendant's attempt to withdraw his guilty plea, he should receive consideration for his cooperation with the United States. (Cr. ECF No. 133 at PageID 268.) The United States responded:
[W]hen the defendant came forward with that information, we made - we made that information known to the FBI. We did begin that investigation; however, I believe at one point it came to a standstill. That was when the defendant began his inquiries into filing a motion to withdraw his guilty plea. Just as a matter of refreshing the court's memory as to what occurred, at that point the FBI agent, then during that process of that motion being filed, contacted me with the idea of showing the defendant a photo line-up. I passed that information on to defense counsel. And the response back was, only if we dismissed his charge would he then agree to cooperate further. Which of course, we were not inclined to do so. We then went forward on with the motion, which, of course, the court denied. And a revised presentence report was filed.
I received a letter from the defendant taking now a new position in his multi-position stance of his guilty plea, which now is back to, he's guilty, he listened to jail house lawyers and what not. But the FBI agent was still interested in seeing if the defendant would look at a photo line-up. I passed that on to Mr. Sparks. And if that deal would occur, it would only - it would be very important for them to know... [but] the defendant has now committed perjury now on the stand... his credibility as a witness has ...