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United States v. Boatwright

United States District Court, W.D. Tennessee, Western Division

December 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
LARRY BOATWRIGHT, Defendant.

          ORDER DENYING DEFENDANT'S AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, AND DENYING A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Pending before the court is Defendant Larry Boatwright's Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 based on the ineffective assistance of his trial counsel. (Dkt. #171.) The Government has responded, (Dkt. #174), and Defendant has replied, (Dkt. #178). The court held an evidentiary hearing on the motion on October 24, 2016. For the following reasons as well as those stated at the hearing, the court will deny Defendant's motion.

         I. BACKGROUND

         The facts of the underlying case and procedural history were recited in the court's recent Opinion and Order Setting an Evidentiary Hearing, (Dkt. #185), familiarity with which is presumed. There, the court determined that Defenant's motion was timely and ordered an evidentiary hearing on the question of whether Defendant had been inappropriately advised by his trial counsel, Mr. Daniel Warlick, prior to his rejection of a plea bargain offered to Defendant which would have limited his exposure to five years of imprisonment-far lower than the guideline-recommend sentence if Defendant were convicted at trial. The question centers on whether, prior to Defendant's rejection of the Government's plea offer, Mr. Warlick had failed to adequately apprise Defendant of the fact that he could not effectively prevent his conviction at trial by presenting evidence that others had participated in the same conduct but had not been prosecuted. A motion in limine to that effect had already been granted at an earlier hearing, though Defendant had not been present and Mr. Warlick did not learn the details of that hearing until after the plea offer had been rejected because he was not yet representing Defendant at the time.

         At the evidentiary hearing on October 24, 2016, the court heard testimony from Defendant, Mr. Warlick, and Murry Wells, who was Defendant's attorney at the time of the earlier hearing on the motion in limine. Defense counsel indicated at the evidentiary hearing that Defendant bears the burden of proving any facts in dispute. (Rough Transcript Pg. 2.)

         II. STANDARD

         Under 28 U.S.C. § 2255, a prisoner sentenced by a federal court may “move the court which imposed the sentence to vacate, set aside or correct the sentence” when “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. The defendant must demonstrate “the existence of a fundamental defect which inherently results in a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure” in order for relief to be obtained. United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993) (citing Hill v. United States, 368 U.S. 424, 428 (1962)).

         III. DISCUSSION

         As discussed in this court's prior order, the Sixth Amendment provides for the right to the assistance of counsel for anyone accused of a crime. U.S. Const. amend. VI. In Strickland v. Washington, the Supreme Court articulated a two-part test which looks to whether, when viewed deferentially to defense counsel, the “representation fell below an objective standard of reasonableness . . . under prevailing norms, ” and whether the defendant was prejudiced by the deficient performance. 466 U.S. 669, 687-88, 90, 92 (1984).

         A. Quality of Representation

         Defendant argues that Mr. Warlick's representation was deficient because he (1) provided advice that Defendant would be able to call witnesses to support his defense theory that other pharmacists were responsible for pharmacy shortages, (Dkt. # 169-1, Pg. ID 844); (2) failed to explain the elements of the offenses and what was necessary to convict him; and (3) failed to explain that Defendant's confession would make his conviction almost certain. At the hearing, Defendant did not present any evidence to support the second and third claim listed above, but contrary testimony from Mr. Warlick on those points was presented. (Rough Transcript at 49-50.) Plaintiff has therefore not sustained his burden on the second and third theories. The court will address the first theory below in detail.

         The court is not persuaded of the reliability of Defendant's account of the facts surrounding his rejection of the plea deal. At the time Defendant decided not to accept the offer of a plea deal and instead proceed to trial, he had confessed twice orally and once in writing. (Rough Transcript 51.) Defendant's testimony reflects a mind shut out from the realities of the world around it and possessed by a kind of mantra that he would “be okay” as long as he “could call witnesses.” In response to direct questions from the court, he strayed from the issue at hand and reiterated his theory of the case, (Rough Transcript at 22-25), and Mr. Warlick testified that he received similar answers when he posed these questions to his client, (Rough Transcript at 48).

         When asked whether he considered the plea deal, he replied “I considered it; but I said as long as I can call witnesses, I will be okay.” (Rough Transcript at 6.) He testified that, when discussing the deal with Mr. Warlick:

he really wanted me to take it, just like Mr. Wells wanted me to take the plea deal, just like my prior lawyer wanted me to take it, that as long as I could call witnesses, I would be okay. I felt like I would be okay, and there was nothing ever said that I wouldn't. . . . I told him that as long as I could call the witnesses of the list that I sent in to him that I felt I would ...

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