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Berry v. United States

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

January 30, 2017

GERALD BERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 2:11-cr-20221-STA-1

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING MOTIONS TO AMEND, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

         Before the Court is the motion filed pursuant to 28 U.S.C. § 2255 by Gerald Berry, Bureau of Prisons register number 20559-076, an inmate at the Federal Correctional Institution in Otisville, New York (ECF No. 1), and his two motions to amend his § 2255 motion. (ECF Nos.11, 12.) The United States filed its response and answer to the original motion on May 27, 2014 (ECF No. 7), and Berry filed a reply to the response. (ECF No. 8.) The United States filed its response to the motions to amend on June 16, 2016. (ECF No. 18.) For the reasons stated below, the Court DENIES the motions to amend and DENIES the § 2255 Motion.

         Background

         On March 29, 2006, Berry pled guilty to Count 1 of the indictment in United States v. Berry, No. 2:05-cr-20293-01-JDB (W.D. Tenn.). (No. 2:05-cr-20293, Plea Agreement, ECF No. 58.) At a hearing on September 14, 2006, Berry was sentenced to a term of imprisonment of fifty-one months, to run concurrent to the sentence imposed in United States v. Berry, No. 2:05- cr-20295-JDB (W.D. Tenn.), to be followed by a three-year period of supervised release. (No. 2:05-cr-20293, Min. Entry, ECF No. 91.)

         On May 13, 2011, the United States Probation Office filed a petition for warrant or summons for offender under supervision, which charged Berry with violating the conditions of his supervised release due to his arrest on April 13, 2011, by the Mid-South Electronic Crimes Task Force on two counts of forgery and identity theft and two counts of theft of property over $500. (No. 2:05-cr-20293, Pet. for Warrant or Summons, ECF No. 121.)

         The conduct that formed the basis for the Probation Office's petition was the subject of a third federal indictment against Berry, United States v. Berry, No. 2:11-cr-20221-01-STA (W.D. Tenn.).[1] A grand jury charged Berry with fifteen counts of bank fraud in violation of 18 U.S.C. § 1344 and one count of identity theft in violation of 18 U.S.C. § 1028A(a). (No. 2:11-cr-20221, Indictment, ECF No. 1.) Because Berry was indigent, the Court appointed T. Clifton Harviel to represent him. (No. 2:11-cr-20221, Min. Entry and Not. Of App., ECF Nos. 21, 28.) Berry subsequently pled guilty to Count 1 of the indictment and was sentenced to a term of imprisonment of 78 months, with that sentence to be served consecutively to the 54-month sentence for the supervised release violations in Berry's prior cases. (No. 2:11-cr-20221, Am. J., ECF No. 107 (sealed).)

         The plea was pursuant to a negotiated plea agreement with the United States. (No. 2:11-cr-20221, Plea Agreement, ECF No. 46.) In the plea agreement, Berry agreed to enter a voluntary plea of guilty to Count 1 of the indictment, which charged him with bank fraud. The United States agreed to dismiss any remaining counts. The parties stipulated that the loss for purposes of relevant conduct would be between $30, 000 and $70, 000. The United States agreed to recommend a sentence within the applicable guideline range and agreed that Berry would receive a reduction for acceptance of responsibility, provided he did not engage in conduct inconsistent with acceptance of responsibility. The plea agreement contained an appeal waiver provision. Berry agreed that, for the purpose of restitution, the Court could consider losses derived from counts of conviction and losses caused from dismissed counts and uncharged conduct. Above Berry's signature, the plea agreement stated the following:

GERALD BERRY 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, GERALD BERRY acknowledges that he has read this agreement, has discussed it with his attorney and understands it.

(No. 2:11-cr-20221, Plea Agreement at ¶ 9, ECF No. 46.)

         On December 21, 2011, a hearing was held on Berry's change of plea. After the Court placed Berry under oath and Berry stated that he understood why he was in Court, the following exchange took place:

COURT: Have you had an opportunity to discuss your case fully and completely with Mr. Harviel?
DEFENDANT: Yes, Your Honor.
COURT: Has he been able to explain to your satisfaction what the facts of the case are, what the law would be that would apply to those facts and what your options are about whether to plead guilty or proceed to trial?
DEFENDANT: Yes, Your Honor.
COURT: Are you satisfied with Mr. Harviel's representation of you in this matter?
DEFENDANT: Yes, Your Honor.
COURT: Have you had any type of medication or alcohol or anything of that nature within the last 72 hours?
DEFENDANT: No, Your Honor.
COURT: Have you ever been treated for any type of mental health or emotional issues?
DEFENDANT: Yes, Your Honor.
COURT: How long ago was that?
DEFENDANT: Right before my incarceration.
COURT: And that was when?
DEFENDANT: 2010.
COURT: Okay. What kind of treatment was it, inpatient, outpatient?
DEFENDANT: Outpatient.
COURT: Outpatient?
DEFENDANT: (Nods head affirmatively).
COURT: How long did that last approximately?
DEFENDANT: Two months.
COURT: Okay. What were you being treated for, anxiety, depression, what?
DEFENDANT: Depression, bipolar.
COURT: Okay. And were you prescribed medication at that time?
DEFENDANT: Yes, Your Honor.
COURT: Did you take it for a period of time?
DEFENDANT: Yes, Your Honor.
COURT: Why are you currently not taking it?
DEFENDANT: They don't allow it at the facility that I'm at.
COURT: Have you been examined there?
DEFENDANT: No, Your Honor.
COURT: But you just-you are just not provided the medication?
DEFENDANT: Right.
COURT: Are you receiving any kind of counseling?
DEFENDANT: They check on me periodically.
COURT: Okay. Well, Mr. Berry, the thing I'm trying to determine and I want to be sure about is, one, that you understand what you are doing, that you are doing it freely and voluntarily, and that there is not anything going on in your life, you are not experiencing any kind of medical issues or emotional issues or anything that would make it either difficult or impossible for you to understand the consequences of what you are doing.
DEFENDANT: I comprehend.
COURT: Do you understand?
DEFENDANT: Yes, sir.
COURT: So you don't believe the fact that you had a period of time that where you were being treated for some emotional issues, you don't believe that you would in any way interfere or impair your ability to understand what you are doing here today?
DEFENDANT: No, Your Honor.
COURT: Okay, Mr. Berry, do you understand that under the laws of the United States you would be entitled to a trial by jury on the charge contained - or charges contained in the indictment?
DEFENDANT: Yes.
COURT: Do you understand that if we had a trial, you would be presumed to be innocent, and the government would have to prove that you were guilty by competent evidence beyond a reasonable doubt?
DEFENDANT: Yes, Your Honor.
COURT: Do you understand that if we had a trial, the government would have to put on witnesses here in the courtroom in your presence, and Mr. Harviel would have the right to cross-examine those witnesses?

(No. 2:11-cr-20221, TR Change of Plea Hearing, PageID 155 - 159, ECF No. 89.)

         During the plea colloquy, the Court explained to Berry his right to a trial, that he would be presumed innocent if he went to trial, that the United States would bear the burden of proving the charges beyond a reasonable doubt, that Berry could confront and cross-examine witnesses, that Berry could choose whether to testify and his decision to testify or not to testify could not be used against him in any way, and that, if convicted, the Court would sentence Berry after reviewing a pre-sentence report. (Id.at PageID 159 - 161.).

         After verifying that Berry had signed the plea agreement, the Court asked Berry if he had had an opportunity to discuss the terms and conditions contained in the plea agreement with Attorney Harviel before he signed it. Berry responded affirmatively. The Court then asked Berry if he fully understood the terms and conditions that were contained in the plea agreement before he signed, and Berry again responded affirmatively. (Id. at Page ID 165.) Berry denied being threatened to sign the agreement against his will and stated that he signed because he wanted to sign and because he believed it was the right thing for him. (Id. at PageID 171.)

         Counsel for the United States then described the evidence that would have been presented at trial to substantiate the factual basis for Count 1.

We would show that the banks which we listed in the introduction were all insured by the Federal Deposit Insurance Corporation which show that in February of 2011, Mr. Berry was released from the federal prison system where he had been convicted of bank fraud for cashing counterfeit checks with Judge Breen and was incarcerated at a halfway house when he started this scheme. He obtained I believe a number of counterfeit checks. He went to the Tennessee Department of Safety and received a fraudulent ID in the name of Dustin Chalpek. He would then fill out the checks as payable to Dustin Chalpek. He would use those to basically cash the checks. He would keep the amounts under $1, 000.00. Specifically on February 14, 2011, he represented ...

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