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Fox v. United States

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

January 25, 2017

LEONARD AUGUSTA FOX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION, DENYING MISCELLANEOUS MOTIONS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.

         Leonard Augusta Fox has filed a motion under 28 U.S.C. § 2255 asking the Court to set aside or vacate his sentence (“petition”). (ECF No. 1.) Fox claims that his attorney provided ineffective assistance in connection with his guilty plea to one count of sex trafficking a minor. For the reasons set forth below, the petition is DENIED.[1]

         I. Background

         A. Criminal Charges and Plea

         On September 4, 2008, a federal grand jury returned an indictment against Fox charging him with three counts of sex trafficking of children by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591 (a)(1), (a)(2), and (b)(1). (United States v. Fox, 08-CR-20307-01 (hereinafter “Cr. Case”), ECF No. 17.) The factual bases for the charges, as stated in the presentence report (“PSR”), are Fox's alleged recruitment of underage girls for prostitution and use of coercion and force against them.

         According to the PSR, in September of 2008, Memphis police officers were flagged down by an individual who stated that Fox was inside an apartment complex with two juvenile girls. The officers went to the location and encountered Fox, whose pants were unzipped with his penis in plain view. (PSR at 4.) The investigative file describes what the officers saw next:

Two juvenile girls, [Jane Doe 1], age 14 and [Jane Doe 2], age 15, who were half-clothed, were found hiding under a bed. The officers observed a large box of condoms and a journal, which belonged to [Jane Doe 1], inside the bedroom. There were also several used condom wrappings on a mattress on the living room floor. Both victims admitted that they had recently had sexual intercourse with Fox. Fox was arrested and the two juvenile girls were taken into state protective custody.

(Id.)

         Further investigation revealed that when Jane Doe 1 was thirteen years old, Fox recruited her to work as a prostitute. Fox “showed [Jane Doe 1] money and gained her trust, ” eventually convincing her to run away with him. Shortly thereafter, Fox convinced the girl “to have sex with two of his friends, ” for which Fox was paid money. Fox “taught [Jane Doe 1] how to be a prostitute” and took her to apartment complexes to have sexual encounters with male residents. Jane Doe 1 indicated to investigators that Fox occasionally gave her marijuana and was “extremely violent” at times. On one occasion, Fox “bound her hands and feet, and left her in the attic for an extended period of time.” Fox also physically assaulted Jane Doe 1 on numerous other occasions. (Id.) Jane Doe 1 kept a journal of her experiences. (Id. at 4-5.)

         Another juvenile, Jane Doe 2, told investigators that she came to work for Fox in June of 2008 when she was fifteen years old. Like Jane Doe 1, Jane Doe 2 was taken by Fox to apartment complexes, where Fox allowed men to choose which girls they wanted to have sex with. Fox would collect money from the customers, keeping a tally of what amount of money the girls were earning by counting the number of condoms the girls used. Fox also “encouraged [Jane Doe 1 and Jane Doe 2] to engage in three way sexual encounters with him, which happened frequently.”

         Jane Doe 1 subsequently introduced fifteen-year-old Jane Doe 3 to Fox. Fox engaged in the same pattern of conduct with Jane Doe 3, taking her to apartment complexes and prostituting her to male residents. Fox told Jane Doe 3 that she “had to have sex with men or else.” (Id. at 5.)

         Fox never gave the three girls any of the money he made from prostitution and he “only allow[d] them to interact with certain people.” (Id. at 5, 6.) Fox “did not have a permanent residence and [he] moved the girls frequently from place to place.” (Id. at 5.)

         On February 23, 2009, Fox appeared with his attorney, Michael Robbins, and pled guilty to Count 2 of the indictment pursuant to a negotiated plea. (Hrg. Tr., Cr. Case, ECF No. 77.) The plea agreement specified that:

• the “indictment charge[d] a crime which [carried] a sentence of imprisonment [of] not less than 10 year or more than life”;
• the government would not seek a sentence enhancement based on 18 U.S.C. § 1591(b)(1), which carries a mandatory minimum sentence of fifteen years;
• the government would dismiss the remaining two charges at the appropriate time;
• the government would not oppose the Court's giving Fox credits for accepting responsibility;
• the government would recommend a prison term of 120 months;
• the government's sentencing recommendation was not binding on the Court;
• if the Court did not accept the recommended sentence, Fox had no right to withdraw his guilty plea; and
• Fox was waiving his rights to both appeal and collaterally challenge his conviction and sentence, with the exception of claims of prosecutorial misconduct and ineffective assistance of counsel.

         (Cr. Case, ECF No. 34.)

         At the change-of-plea hearing, Fox answered in the affirmative to questions asking if he had conferred with his attorney about the terms of the plea agreement, had agreed to the terms voluntarily, understood the terms, and understood that his potential sentence was not less than ten years and not more than life imprisonment. Fox also confirmed that he understood that the Court was not bound by the government's recommendation of a 120-month sentence. (Hrg. Tr., Cr. Case, ECF No. 77 at 8-15.)

         B Motion to Withdraw the Plea, Sentencing, and Appeal

         Robbins subsequently withdrew as Fox's counsel. On February 22, 2010, Fox filed a pro se motion to withdraw his plea. (Cr. Case, ECF No. 71.) Fox alleged that attorney Robbins did not explain the terms of the plea agreement to him and coerced him into pleading guilty. Fox retained attorney Javier Bailey to represent him at the evidentiary hearing on the motion. Attorney Robbins testified at the hearing about the circumstances surrounding the plea negotiations. The Court denied Fox's motion to withdraw his guilty plea, finding that Fox had voluntarily pled guilty to Count 2 of the indictment. (Cr. Case, ECF No. 82.)

         The Court sentenced Fox to 300 months of imprisonment followed by ten years of supervised release. Fox's sentence reflected, in part, a two-level reduction for acceptance of responsibility. (See Hrg. Tr., Cr. Case, ECF No. 115 at 14, 45.)

         The Sixth Circuit affirmed the judgment of conviction and sentence, (Fox v. United States, No. 10-5793 (6th Cir. Oct. 18, 2011)), and the Supreme Court denied certiorari. Fox ...


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