United States District Court, W.D. Tennessee, Western Division
ORDER DENYING AS MOOT MOTION TO AMEND; ORDER DENYING MOTION UNDER 28 U.S.C. § 2255; ORDER DENYING CERTIFICATE OF APPEALABILITY; AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JON P. McCALLA, District Judge.
On May 25, 2012, Defendant Frank Skinner, Bureau of Prisons registration number XXXXX-XXX, an inmate at FCC Forrest City Low in Forrest City, Arkansas, filed a Motion pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). (ECF No. 1.) On October 31, 2012, the Court directed the United States to file a response. (ECF No. 2.) On December 13, 2012, the Court once again directed the United States to file a response. (ECF No. 3.) The United States filed a response on February 19, 2013. (ECF No. 6.) On March 1, 2013, Movant filed a Motion to Amend Movant['s] 28 U.S.C. 2255 [Motion] and Response to the Government['s] Responses. (ECF No. 7.) Because the Motion to Amend raises no new claims and may be properly considered as a reply to the Government's response, the Court considers Movant's arguments in the Motion to Amend and DENIES AS MOOT the Motion to Amend.
For the reasons stated below, the § 2255 Motion is DENIED, and a certificate of appealability is DENIED. The Court also finds that an appeal would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.
On January 13, 2010, a federal grand jury indicted Frank Skinner in a four-count Indictment charging him with: (Count One) unlawfully obstructing, delaying, and affecting commerce by robbery, in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 2; (Count Two) knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2; (Count Three) unlawfully obstructing, delaying, and affecting commerce by robbery, in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 2; and (Count Four) knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. (United States v. Skinner, No. 2:10-cr-20017-JPM-1 (W.D. Tenn.), ECF Nos. 1-3.) On February 2, 2011, Cole pled guilty to Counts One, Three, and Four of the Indictment pursuant to a written plea agreement. ( Id., ECF Nos. 101, 103, 104.) The plea agreement provided:
The full and complete plea is as follows:
The following constitutes the Plea Agreement reached between the United States, represented by Edward L. Stanton, III, United States Attorney for the Western District of Tennessee, and LORRAINE CRAIG, Assistant United States Attorney, the defendant, FRANK SKINNER, represented by T. CLIFTON HARVIEL, defense counsel. The parties enter into the following Plea Agreement pursuant to Rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure. It being the intention of the parties that the Court may accept or reject this agreement immediately or after having had an opportunity to review the pre-sentence report, but may not modify the agreement. Except with respect to any non-binding recommendations to be made by the United States, if the Court rejects the agreement either party may withdraw from the agreement.
FRANK SKINNER agrees that he will enter a voluntary plea of guilty to count(s) 1, 3 and 4 [sic] of the indictment.
The United States agrees to dismiss any remaining counts of the indictment against the defendant at the appropriate time.
The United States and the defendant agree to recommend and request that the Court impose a term of 300 months imprisonment. Both parties understand that this recommendation is not binding on the Court, and both parties agree that either party may withdraw from the plea agreement should the Court reject the recommendation of 300 months imprisonment.
The Defendant understands that Title 18, United States Code Section 3742 gives him the right to appeal the sentence imposed by the Court. Acknowledging this, defendant knowingly and voluntarily waives his right to appeal the sentence imposed and the manner in which the sentence is determined so long as the sentenced imposed by the Court is is [sic] 300 months imprisonment. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement. The waiver in this paragraph does not apply to claims related to prosecutorial misconduct and ineffective assistance of counsel.
FRANK SKINNER agrees that this plea agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this document, FRANK SKINNER acknowledges that he has read this agreement, has discussed it with his attorney and understands it.
( Id., ECF No. 104 at PageID 132-33.)
A presentence investigation report ("PSR") was prepared recommending a total offense level of twenty-seven for Counts One and Three, and a criminal history score of zero. (PSR at 11-12.) For Count Four, pursuant to U.S.S.G. § 2K2.4(b), the guideline sentence was determined to be the statutory minimum of seven years of imprisonment. (Id. at 12.)
On May 17, 2011, Defense counsel filed his Position with Respect to Sentencing Factors. (United States v. Skinner, No. 2:10-cr-20017-JPM-1 (W.D. Tenn.), ECF No. 128.) Defense counsel stated: "Mr. Skinner and his attorney have been over the Pre-Sentence Investigation Report and there are no objections to the calculations therein." (Id. at PageID 182.)
On May 26, 2011, the Court held Skinner's sentencing hearing. At the hearing, the Court described the benefit that the plea agreement offered Skinner:
[Without the plea agreement] we would have ended up with  seven years consecutive to the sentence in the initial matter or the robberies themselves plus an additional 25 years, so we would have started with a Count 2 and a Count 4 combined consecutive of 32 years, and that is the reason that - that's substantially more than the 25-year sentence, and that does not include the period as to which an individual received a sentence in connection with the illegal conduct, that is specifically the robberies themselves. So the robberies themselves would have a range under Counts 1 and 3 of not more than 20 years per count, which would have been 72 to 87 months under the guidelines, so it helps us understand, it helps everybody think - understand why the sentence would be  one which the defendant would agree.
( Id., ECF No. 184 at PageID 340-41; see PSR ¶¶ 79, 80.)
The Court also spoke to Skinner at some length to ensure that he understood the waiver of his right to appeal to which he was agreeing in the plea agreement:
I know that you have agreed to waive your right to appeal if the court imposes this sentence because of the benefits obtained by you as a result of the plea agreement. So that was your decision, it is a right that you have agreed to waive. I'm required, however, to tell you about your rights to appeal no matter what, and also because you have a right to appeal prosecutorial misconduct in which there is absolutely no evidence in this case, and ineffective assistance of counsel which there is absolutely no evidence. In fact, you have had good counsel who has greatly reduced your exposure in the case, but I'm required to tell you anyway.
You can appeal your conviction normally if you didn't waive your right if you believed that your guilty plea was somehow unlawful or involuntary or if there's some other fundamental defect in the proceedings not waived by your guilty plea, and you would normally be able to appeal your sentence under certain circumstances, particularly if you thought that the sentence was contrary to law. You have agreed to waive that.
(Id. at PageID 376-77.) The Court then stated: "Now, in this case, for the benefits received under the plea agreement, you have agreed to waive your right to appeal. Is it your intention to waive your right to appeal in this case?" (Id. at PageID 377.) Skinner responded, "Yes." (Id.)
In light of the recommended Guideline range, the arguments of counsel, and the factors articulated in 18 U.S.C. § 3553(a), the Court accepted the plea agreement and sentenced Frank Skinner to a term of imprisonment of 300 months (216 months on Counts 1 and 3, and 84 months on Count 4, to be served consecutively), three years of supervised release, ...