United States District Court, W.D. Tennessee, Western Division
JONATHAN F. WALKER, Movant,
UNITED STATES OF AMERICA, Respondent. Cr. No. 2:10-cr-20192-JPM-1
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 May 11, 2012, Defendant Jonathan F. Walker, Bureau of Prisons registration number XXXXX-XXX, an inmate at FCI Memphis, Tennessee, filed a motion pursuant to 28 U.S.C. § 2255 ("§ 2255 motion"). (ECF No. 1.) On September 4, 2012, the Court directed the United States to respond to the motion to vacate. (ECF No. 3.) On May 5, 2014, the United States filed a response contending that Walker's motion is without merit. (ECF No. 14.) For the reasons that follow, Walker'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 April 28, 2010, a federal grand jury indicted Jonathan Walker in a three-count Indictment charging him with: (Count One) unlawfully conspiring to manufacture more than 50 grams of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846; and (Counts Two and Three) knowingly and intentionally possessing pseudoephedrine and having reasonable cause to believe that the listed chemical would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). ( United States v. Walker, No. 2:10-cr-20192-JPM-1 (W.D. Tenn. filed April 28, 2010), ECF Nos. 1-3.) On August 15, 2011, Walker pleaded guilty to Counts Two and Three of the Indictment pursuant to a written plea agreement. ( Id., ECF Nos. 36, 39.) The plea agreement provided:
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 JOSEPH C. MURPHY, JR., Assistant United States Attorney, and the defendant, JONATHAN WALKER, represented by MICHAEL EDWIN SCHOLL, defense counsel. The parties enter into the following Plea Agreement pursuant to Rule 11(c) of the Federal Rules of Criminal Procedure:
1. JONATHAN WALKER agrees that he will enter a voluntary plea of guilty to count(s) 2 and 3 of the indictment. The parties stipulate and agree that the total amount of pseudoephedrine possessed by the defendant in violation of the statute, based upon a conservative estimate, was approximately 200.96 grams, and that this figure includes relevant conduct. The parties hereto agree pursuant to Rule 11 (c)(1)(C) that the Court may accept or reject this provision of the plea agreement. In the event that the Court rejects this provision of the plea agreement, then the government agrees that the defendant may withdraw his guilty plea. In the event that the defendant withdraws his guilty plea pursuant to this provision, then this agreement shall be null and void.
2. The United States agrees to dismiss any remaining counts of the indictment against the defendant at the appropriate time.
3. Given the facts in the possession of the United States at the time of the writing of this agreement, the United States does not oppose the defendant receiving acceptance of responsibility credit pursuant to U.S.S.G. Section 3E1.1. The defendant understands that if the United States receives information between the signing of this agreement and the time of the sentencing that the defendant has previously engaged in, or if he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to, participation in any additional criminal activities between now and the time of sentencing, this position could change. Further, the defendant understands that whether or not acceptance of responsibility credit pursuant to Section 3E1.1 is granted is a matter to be determined by the district court. Failure of the district court to grant acceptance of responsibility credit is not a basis for JONATHAN WALKER to withdraw his guilty plea.
4. 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 any sentence imposed by the Court and the manner in which the sentence is determined so long as the sentence is within the statutory maximum specified above. 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 relating to prosecutorial misconduct and ineffective assistance of counsel.
5. JONATHAN WALKER 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, JONATHAN WALKER acknowledges that he has read this agreement, has discussed it with his attorney and understands it.
( Id., ECF No. 39 at PageID 58-60.)
The United States Probation and Pretrial Services prepared a presentence investigation report ("PSR"), which recommended a total offense level of 35 for Counts Two and Three, and criminal history category of VI because he qualified as an armed career criminal pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4B1.4. (PSR at 7, 15.) The PSR calculated Walker's advisory guideline range at 292 to 365 months of imprisonment. (PSR at 15.) Although it was not reflected in the PSR, Walker was subject to a mandatory minimum sentence of five years (sixty months) on Count One under 21 U.S.C. §§ 846, 841(b)(1)(B)(viii). Defense counsel filed the following objections to the PSR:
1. Defendant objects to paragraph 8 of the Presentence Investigation Report in that he was not the "ringleader".
2. Defendant objects to paragraph 22 of the Presentence Investigation Report in that he was not ...