United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION UNDER 28 U.S.C. ORDER DENYING CERTIFICATE OF APPEALABILITY AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JON PHIPPS McCALLA, District Judge.
On July 31, 2012, Defendant Hadi Rahsepass, Bureau of Prisons registration number XXXXX-XXX, released on June 21, 2013, filed a motion pursuant to 28 U.S.C. § 2255 ("§ 2255 motion"). (ECF No. 1.) On May 29, 2013, the Court directed the United States to respond to the motion to vacate. (ECF No. 3.) On June 21, 2013, the United States filed a response contending that Rahsepass's motion is without merit. (ECF No. 4.) For the reasons that follow, Rahsepass's § 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.
I. BACKGROUND TO MOTION
On September 13, 2006, a federal grand jury indicted Hadi Rahsepass in a one-count indictment charging him with willfully and knowingly making a false statement in an application for a passport with intent to induce and secure for his own use the issuance of a passport under the authority of the United States in violation of 18 U.S.C. § 1542. ( United States v. Rahsepass, No. 2:06-cr-20349-JPM-1 (W.D. Tenn. filed September 13, 2006), ECF No. 1.) On May 24, 20007, Rahsepass pleaded guilty to Count One of the indictment pursuant to an oral plea agreement. ( Id., ECF Nos. 35, 37.)
The United States Probation and Pretrial Services prepared a presentence investigation report ("PSR"), which recommended a total offense level of 8 and criminal history category of IV. (PSR at 13.) The PSR calculated Rahsepass's advisory guideline range at 10 to 16 months of imprisonment. (Id. ) On August 30, 2007, the Court sentenced Rahsepass to time served, two years of supervised release, and a special assessment of $100. ( United States v. Rahsepass, No. 2:06-cr-20349-JPM-1 (W.D. Tenn. filed September 13, 2006), ECF No. 41.)
Rahsepass's supervised release commenced on May 13, 2008 and was set to expire on May 12, 2010. ( See id., ECF No. 43 at PageID 56.) U.S. Probation Officer Patrick Hanley submitted a Request for Modifying the Conditions or Term of Supervision with Consent of the Offender on March 17, 2010. (Id. ) Hanley requested that the Court extend Rahsepass's term of supervised release by one year because "the defendant [was] participating in a nine-month substance abuse treatment program which [was] scheduled to continue until October 2010." (Id. ) Hanley further noted that "the defendant [had] requested assistance addressing his cognitive thinking errors." (Id. ) Attached to Hanley's request was a signed Waiver of Hearing to Modify Conditions of Probation/Supervised Release or Extend Term of Supervision. ( Id., ECF No. 43-1.) The waiver stated:
I have been advised and understand that I am entitled by law to a hearing and assistance of counsel before any unfavorable change may be made in my Conditions of Probation and Supervised Release or my period of supervision being extended. By "assistance of counsel, " I understand that I have the right to be represented at the hearing by counsel of my own choosing if I am able to retain counsel. I also understand that I have the right to request the court to appoint counsel to represent me at such a hearing at no cost to myself if I am not able to retain counsel of my own choosing.
I hereby voluntarily waive my statutory right to a hearing and to assistance of counsel. I also agree to the following modification of my Conditions of Probation and Supervised Release or to the proposed extension of my term of supervision:
1. The term of Supervised Release shall be extended for one year to expire on May 12, 2011.
2. The defendant shall participate in a cognitive behavior program, such as but not limited to Moral Reconation Therapy (MRT), as directed by the probation officer.
(Id. ) The waiver was signed by both Hanley and Rahsepass, and was dated March 10, 2010. (Id. ) As a result of Hanley's request and Rahsepass's waiver, the Court extended Rahsepass's term of supervised release by one year on March 23, 2010. ( Id., ECF No. 44.)
On May 5, 2011, the Court granted the Supervising U.S. Probation Officer's petition for a warrant of arrest as to Rahsepass for violation of the conditions of his supervised release. ( Id., ECF No. 45.) The petition for warrant alleged that Rahsepass had violated two provisions of his supervised release: 1) "[t]he defendant shall not commit another federal, state or local crime;" and 2) "[t]he defendant shall refrain from any unlawful use of a controlled substance." (Id. at PageID 62-63.) With regard to the first provision, the petition stated that Rahsepass "was arrested by the Memphis Police Department on January 27, 2011, and charged with Promotion of Methamphetamine Manufacture." (Id. at PageID 62.) With regard to the second provision, the petition stated that "[l]aboratory results confirmed the defendant tested positive for the use of methamphetamine on October 22, 2009, and November 19, 2009, methamphetamine and marijuana on February 3, 2011, marijuana on April 15, 2011, and methamphetamine on April 19, 2011." (Id. at PageID 63.)
A warrant for Rahsepass's arrest was issued on May 5, 2011 ( id., ECF No 46), and Rahsepass made an initial appearance on May 9, 2011 ( id., ECF No. 47). Rahsepass was granted appointment of a federal public defender on May 9, 2011. ( Id., ECF No. 50.) On May 18, 2011, a detention hearing was held ( id., ECF No. 59), and Rahsepass waived his right to a preliminary hearing ( id., ECF No. 62).
On July 29, 2011, Rahsepass pleaded guilty to both of the asserted violations. ( Id., ECF No. 72.) The Court sentenced Rahsepass to 24 months of incarceration with no additional term of supervision after incarceration. ( ...