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Neill v. United States

United States District Court, M.D. Tennessee, Northeastern Division

January 13, 2017

TIMOTHY JAMES NEILL, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          William J. Haynes, Jr. Judge

         Movant, Timothy James Neill, Jr., filed this pro se action under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct sentence for possessing a firearm as a convicted felon, for which he received a sentence of 92 months imprisonment. Movant asserts: (1) that his guilty plea was "unlawfully induced" because Movant was advised that a guilty plea was in his interest based on the evidence and his confession; (2) that his conviction that was based upon his coerced confession is invalid; (3) that his conviction that was based upon evidence seized as a result of an unconstitutional search is invalid; and (4) that his attorney was ineffective because he failed to advise him properly during plea negotiations and he failed to file a motion to suppress his conviction and other evidence.

         The Court ordered Respondent to respond. (Docket Entry No. 2). Movant filed an amended motion (Docket Entiy No. 9), asserting additional claims that his attorney was ineffective because (1) he failed to argue for a departure at sentencing, (2) he failed to present evidence regarding the circumstances of Movant's plea negotiations and Movant's mental health history at sentencing, (3) he improperly advised Movant at sentencing, and (3) he failed to file an appeal despite Movant advising him to do so.

         The Court appointed the Federal Public Defender to represent Movant (Docket entry No. 10), and the Federal Public Defender filed an amended motion to vacate[1] (Docket Entiy No. 21), asserting: (1) that Movant's attorney was ineffective because he failed to file a motion to suppress evidence, he failed to advise him properly during plea negotiations regarding the likelihood of conviction and his sentencing exposure, he failed to advise him properly following his conviction regarding the decision to appeal, and he failed to present mitigation evidence and propose partially concurrent sentencing at sentencing; and (2) that Movant's guilty plea was involuntary and without the understanding of the viability of a suppression motion, the likelihood of conviction, and his sentencing exposure.

         Respondent filed a response (Docket Entry No. 22), asserting: (1) that Movant's ineffective assistance of counsel claims have no factual or legal basis and that the ineffectiveness alleged by Movant would not have affected the outcome of the action; (2) that Movant's guilty plea was voluntary and knowing because his attorney's advice was sound; and (3) that the Bureau of Prisons erred in calculating Movant's sentence by failing to credit Movant for the time between his federal arrest and his return to Tennessee custody. The Court concluded that an evidentiaiy hearing was necessary as to Movant's ineffective assistance of counsel claims (Docket Entry No. 30), and an evidentiaiy hearing was held on June 29, 2015 (Docket Entiy No. 53, Transcript of Evidentiaiy Hearing Proceedings).

         Movant's appointed counsel filed a second amended motion to vacate (Docket Entry No. 49), restating the claims in Movant's first amended motion to vacate (Docket Entry No. 21) and asserting an additional claim that Movant's base offense level under the sentencing guidelines was enhanced pursuant to a clause that is unconstitutionally vague in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court ordered Respondent to respond to Movant's second amended motion (Docket Entiy No. 51), to which Respondent filed a response (Docket Entry No. 59), asserting: (1) that the testimony of Movant and Movant's counsel at the evidentiaiy hearing reflect that Movant's counsel's performance was not deficient and that Movant did not suffer any prejudice from any alleged inaction by his counsel; and (2) that, if the Court does not hold this action in abeyance pending the Supreme Court's ruling in Welch v. United States. 136 S.Ct. 790 (2016), the Court should not apply Johnson retroactively to Movant's claim arising under the sentencing guidelines. Movant filed a reply (Docket Entiy No. 68), asserting that he is entitled to relief under Johnson and that the Court should not hold this action in abeyance because Welch is not likely to address claims arising under the guidelines. Respondent filed a sur-reply (Docket Entry No. 71), asserting that the Court should hold this action in abeyance because Welch will likely provide instruction on or resolve this issue.

         A. Findings of Fact

         On March 2, 2011, a federal grand jury indicted Movant for possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).[2] (Criminal No. 2:11-cr-00001-5, Docket Entry No. 3). On September 12, 2011, Movant pled guilty to possessing a firearm as a convicted felon. Id., Docket Entry No. 229. The plea petition states, in part, the following:

(3) I have received a copy of the Indictment before being called upon to plead and have read and discussed it with my lawyer, and believe and feel that I understand every accusation made against me in the Indictment.
(4) I have had sufficient opportunity to discuss with my lawyer the facts and surrounding circumstances concerning the matters mentioned in the Indictment. My lawyer has counseled and advised with me as to the nature and cause of every accusation against me. We have thoroughly discussed the government's case against me and my potential defenses to the government's case. My lawyer has explained each element of the crime charged to me and what the government would offer to prove these elements beyond a reasonable doubt.
(5) I understand that the statutory penalties for the offense with which I am charged are as follows:
Count Five (18 U.S.C. § 922(g)(1), felon in possession of a firearm) -carried up to ten (10) years imprisonment, a fine of up to $250, 000.00, or both, a term of supervised release of up to three (3) years, and a $100.00 special assessment. Should Defendant Neill be found to have three (3) prior conviction for a violent felony, serious drug offense, or both, 18 U.S.C. 924(e)(1) requires a sentence of not less than fifteen (15) years nor more than life imprisonment, a fine of up to $250, 000, or both, and a term of supervised release of up to five (5) years.
(6) I have been advised that I will be sentenced to a sentence sufficient but not greater than necessary to satisfy the goals of sentencing specific in 18 U.S.C. § 2552(a). One consideration will be Guidelines established by the United States Sentencing Commission. I understand that these Guidelines are advisory, but that the Court must take account of the Guidelines together with other sentencing goals. My lawyer and I have discussed the calculation of the Guidelines in my case. I have been advised by my attorney that the guideline calculation in my case should be sixty-three (63) to seventy-eight (78) months. I realize that this is simply my layer's estimate. I understand that my advisory Guideline range will be calculated by the United States Probation Officer who prepares the presentence report in my case. This estimation is subject to challenge by either me or the government, unless prohibited by a plea agreement. The final Guideline calculation will be made by the Court. I further understand that I may be sentenced to a fine to be calculated through the Guidelines. No fine will be imposed if the Judge finds me unable to pay any fine. Considered in this fine may be the amount of financial loss to the victim or gain to me as well as the costs of any confinement or probation supervision. The Court may also order that restitution be made to any victim of the offense. [If I am convicted of any offense specific in 18 U.S.C. § 3663 A(c), or as otherwise required by law, restitution is mandatory.] I have a right to a review of my sentence by the United States Court of Appeals for the Sixth Circuit unless waived in the plea agreement.

Id. at 1-2 (emphasis in original).

         On January 11, 2013, the Court sentenced Movant to 92 months imprisonment. Id., Docket Entry No. 445. The Court also sentenced Movant to three years of supervised release. Id. at 3.

         At the June 29, 2015 evidentiary hearing on his § 2255 ineffective assistance of counsel claims, Movant testified on direct examination that he went over guidelines with his attorney Benjamin Perry. (Civil No. 2-14-cv-00013, Docket Entry No. 53 at 7-8). Movant believed that his guideline range was 63 to 78 months. Id. at 9. Movant testified that his attorney stated that he would be surprised if the Court sentenced him to over 60 months. Id. at 10. Movant testified that if he had known that his guideline range was 92 to 115 months he may have changed his opinion of whether to go to trial, hi at 10. Movant also testified that his attorney discussed with him what type of evidence would be submitted in seeking the Court to go below the guidelines, such as Movant's mental health history, the extent of his involvement in the whole case, and childhood factors. Id. at 11-12. Movant admitted that his attorney provided evidence of his mental health history at sentencing. Id. at 12.

         As to Movant's claim that his conviction was based upon evidence seized as a result of an unconstitutional search and his counsel failed to file a motion seeking suppression of a cell phone that contained photographs of him holding a gun, Movant testified that his attorney advised him that, because Movant gave the cell phone to his girlfriend, Movant could not contest the search of another person. Id. at 12-15. Movant also testified that after sentencing he directed his attorney to appeal. Id. at 17-18. Movant testified that his attorney convinced him "that it was probably in [his] best interest just to leave [an appeal] alone" because his attorney was concerned that, if Movant won on appeal, Movant could receive a higher sentence because "the issues we had would still be within the guidelines." Id. at 18-19.

         When asked if there was anything else he wanted to address with the Court, Movant stated, "The only other thing that I would like to address was the fact that the judge granted me my credit for time served and the DOC won't honor it without the finding of one-third, but other than that -but the issues that we covered are, I believe, the main issues." Id. at 22.

         On cross examination, Movant admitted that he made a videotaped statement admitting to holding the weapon in the photograph. Id. at 24. Movant testified that his attorney filed a motion to suppress, but later withdrew it. Id. at 25. As to the ownership of the cell phone, Movant testified as follows:

Q. But you never said that the phone was yours, that the phone was ours, that you had bought it, anything like that; right?
A. Well, at the time, I was never advised as to those were ways to develop standing, so I was not familiar with that. I didn't know that I had to, you know, specifically say, "my phone." Id. at 26.

         Movant also admitted that he knew the guideline range was an estimate and not binding. Id. at 27. Movant then read a letter dated January 31, 2012, from his attorney who stated "As we discussed, anything in the five-year range would be a good outcome, and anything less than that would be a very good outcome." Id. at 28, Exhibit F. Movant admitted that statement implied that it was possible that he could be sentenced to more than five years. Id. at 29.

         Movant further admitted that during the plea colloquy, Movant stated That he was satisfied with counsel's representation and that he was pleading guilty voluntarily. Id. at 29-30. Movant also understood that, if he received a sentence that he did not like, he could not take back his guilty plea and that the final sentence would be determined by the Court. Id. at 30. When the Court at the end of the guilty plea colloquy, asked if Movant still wanted to enter the guilty plea, Movant said, "Yes." Id. According to Movant, after the plea hearing, he thought about changing his plea and going to trial after he learned that the guidelines showed 92 to 115 months. Id. Movant testified that he understood that if he went to trial, the evidence against him would be a photograph of him holding a weapon, his lengthy videotape statement where he admitted to possessing the weapon, and potential testimony of other people who witnessed him possessing the weapon. Id. at 31. Movant testified that his attorney told him that the guidelines were only advisory and the Court could go below them. Id. at 32. Movant stated that he and his attorney discussed strategy to contest the guidelines and that his attorney presented evidence of his mental health by submitting mental health records and referencing Movant's mental health history as grounds for requesting a 36 month sentence. Id. at 32-34. Movant admitted that his attorney asked the Court to make the 36 month sentence that he was requesting concurrent with his state sentence. Id. at 35.

         Movant denied that he had a conversation with his attorney on January 21, 2013, asking him to file an appeal, but stated that it was either the last week of January or the beginning of February that he told his attorney not to file a notice of appeal. Id. at 37-38. Movant admitted that in their discussion about whether to appeal, Movant's counsel explained that if he were to win on appeal and the case was remanded, the probation office might discover two prior convictions that were previously missed when drafting the presentence report. Id. at 3 8. Movant's counsel also explained that the question of whether the gun had a large magazine was a factual question. Id. Respondent then asked, "But at the end of this conversation that you're not sure when it was, you understood that he was not going to be filing an appeal for you; right?" to which Movant responded, "Yes, sir." Id. at 39.

         In a letter dated July 7, 2013, that Movant orally read at the hearing, ...


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