United States District Court, W.D. Tennessee, Eastern Division
FLOYD L. WILLIAMSON, Movant,
UNITED STATES OF AMERICA, Respondent. Cr. No. 1:11-cr-10045-JDB
ORDER ADOPTING REPORT AND RECOMMENDATION, AND GRANTING MOTION PURSUANT TO 28 U.S.C. § 2255
J. DANIEL BREEN, Chief District Judge.
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"), filed by Movant, Floyd L. Williamson, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution Low in Forrest City, Arkansas (§ 2255 Mot., Williamson v. United States, No. 1:11-cv-01398-JDB-egb (W.D. Tenn.), ECF No. 1), and the Report and Recommendation ("R&R") issued by United States Magistrate Edward G. Bryant, Jr. (R&R, id., ECF No. 29). For the reasons stated below, the Court ADOPTS the R&R and GRANTS the § 2255 Motion.
I. PROCEDURAL HISTORY
A. Case Number 10-10045
On May 17, 2010, a federal grand jury returned a two-count indictment against Williamson. (Indictment, United States v. Williamson, No. 1:10-cr-10045-JDB (W.D. Tenn.), ECF No. 1.) The indictment charged that, on or about January 20, 2010, Williamson possessed with the intent to distribute over fifty grams of cocaine base (crack cocaine) (Count 1) and an unspecified quantity of powder cocaine (Count 2), in violation of 21 U.S.C. § 841(a)(1). Williamson retained Javier M. Bailey to represent him in the matter.
Pursuant to a written plea agreement, Williamson appeared before this judge on September 30, 2010, to plead guilty to Count 1 of the indictment. (Min. Entry, id., ECF No. 22; Plea Agreement, id., ECF No. 23; Change of Plea Hr'g Tr., id., ECF No. 44.) The plea agreement provided, inter alia, that "the defendant hereby waives all rights conferred by 18 U.S.C. § 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." (Plea Agreement ¶ 8, id., ECF No. 23.)
At a hearing on March 3, 2011, the Court sentenced Williamson as a career offender to a term of imprisonment of two hundred sixty-two months, to be followed by a five-year period of supervised release. (Min. Entry, id., ECF No. 33; Sentencing Hr'g Tr., id., ECF No. 45.) The Court found that Williamson's waiver of his appeal rights "was freely and voluntarily made." (Sentencing Hr'g Tr. 55, id., ECF No. 45.) Judgment was entered on March 4, 2011. (J. in a Criminal Case, id., ECF No. 34.)
On June 14, 2011, Williamson filed a pro se notice of appeal. (Not. of Appeal, id., ECF No. 36.) On September 16, 2011, the Sixth Circuit Court of Appeals dismissed the appeal as untimely. United States v. Williamson, No. 11-5714 (6th Cir. Sept. 16, 2011).
B. Procedural History of Williamson's § 2255 Motion
On December 28, 2011, Williamson filed his pro se § 2255 Motion, which presented the following claims:
1. "Ineffective Assistance of Counsel" due to the fact that his "[a]ttorney was ineffective for failing to file an appeal after he was compensated to do so" (§ 2255 Mot. at PageID 4, Williamson v. United States, No. 1:11-cv-01398-JDB-egb (W.D. Tenn.), ECF No. 1);
2. "Attorney failed to protect Mr. Williamson from the same offense that the Government agreed to drop" ( id. at PageID 5);
3. "The attorney failed to protect Mr. Williamson from the Government's breach of its agreement" ( id. at PageID 7); and
4. "The attorney failed to protect Mr. Williamson from amendments to his presentence report ...