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Nesbitt v. United States

United States District Court, D. South Carolina, Charleston Division

May 31, 2016

JULIUS NESBITT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner Julius Nesbitt’s (“Nesbitt”) motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. ECF No. 285. The government filed a motion to dismiss, or in the alternative, for summary judgment. ECF No. 319. Nesbitt has also filed a number of related motions to which the government has not responded: (i) motion to expand the record, ECF No. 295; (ii) motion to amend the initial motion to vacate, set aside, or correct, ECF No. 299; (iii) motion to request District Court Judge to recuse himself, ECF No. 320; and (iv) motion to appoint counsel and schedule evidentiary hearing, ECF No. 331. For the reasons set forth below, the court: (i) grants in part and denies in part the government’s motion to dismiss, or in the alternative, for summary judgment; (ii) denies in part Nesbitt’s § 2255 petition as to all but one claim; and (iii) grants Nesbitt’s motion to appoint counsel with respect to the sole remaining § 2255 claim.[1]

         I. BACKGROUND

         Nesbitt was arrested in Indiana by the U.S. Marshals Service on January 8, 2008. Nesbitt was first indicted in the Southern District of Indiana on federal counterfeiting charges, to which Nesbitt pleaded guilty on August 21, 2008 and was sentenced to time served in Indiana on February 26, 2009. Following the Indiana indictment, on November 12, 2008, Nesbitt was named in a six-count indictment in the United States District Court for the District of South Carolina. Count 1 alleged violations of 21 U.S.C. §§ 841 and 846-Conspiracy to Possess with Intent to Distribute Oxycodone. Counts 2 and 3 alleged a violation of 21 U.S.C. § 841-Possession with Intent to Distribute Oxycodone. Count 4 alleged a violation of 18 U.S.C. § 924-Possession of a Firearm in Furtherance of a Drug Trafficking Crime. Count 5 alleged a violation of 18 U.S.C. §§ 922 and 924- Possession of a Firearm by a Convicted Felon. Count 6 alleged a violation of 14 U.S.C. § 88-False Distress Signal to U.S. Coast Guard.

         After Nesbitt’s January 2008 arrest and before either indictment, defense counsel and the government began negotiations in an effort to eventually resolve any potential South Carolina charges alongside any charges filed in Indiana. On March 14, 2008, Nesbitt entered into a Proffer Agreement with the government, pursuant to which Nesbitt agreed to provide the government with “fully truthful and forthright” information, and the government agreed “that any self-incriminating statements made and other information provided by [Nesbitt] during this Proffer” would not be used against him in any civil or criminal proceedings or at sentencing, “unless there is a breach of this Agreement.” ECF No. 167-2, Proffer Agreement 2-3. The Proffer Agreement specifically states that the government “does not agree to . . . enter into a plea agreement” with Nesbitt, and “[t]he [g]overnment makes no representation about the likelihood that any such agreement will be reached in connection with this Proffer.” Id. at 1. The Proffer Agreement also contained an integration clause and provided that it could not be modified except by a writing signed by all parties. Id. at 3-4.

         Nesbitt participated in two proffers, one on May 21, 2008 and the other on July 17, 2008. During this period, Nesbitt’s counsel and the government continued plea negotiations, but ultimately failed to reach any formal agreement. See ECF No. 276, Resentencing Hr’g Tr. 29:6-22 (describing emails from government to Nesbitt’s counsel indicating a plan to enter into plea agreement). Nesbitt was eventually indicted in South Carolina, and on August 22, 2010, the government moved to hold Nesbitt in breach of the Proffer Agreement based on certain false statements and material omissions made during his May 21, 2008 proffer. On August 25, 2010, the court found that Nesbitt breached his Proffer Agreement, and entered an order detailing this finding on September 14, 2010. On August 26, 2010, after a four day jury trial, Nesbitt was convicted on Counts 1, 2, 3, 5, and 6 in the South Carolina indictment.

         On November 30, 2010, Nesbitt was sentenced to 151 months imprisonment, followed by 36 months of supervised release. On appeal, the Fourth Circuit affirmed Nesbitt’s convictions, but vacated his sentence, finding that this court failed to provide a sufficient explanation for the sentence. On remand, this court held a resentencing hearing, and on December 19, 2013, the court resentenced Nesbitt to 151 months imprisonment, followed by 36 months of supervised release. Nesbitt again appealed, and the Fourth Circuit affirmed this court’s resentencing on October 16, 2014.

         Nesbitt filed a motion to vacate his sentence under 28 U.S.C. § 2255 on November 24, 2014. He then filed a motion to expand the record on December 22, 2014, and a motion to amend his motion to vacate on January 5, 2015. The government then filed a motion to dismiss Nesbitt’s motion to vacate on March 9, 2015, and Nesbitt filed a response to the government’s motion on March 31, 2015. The same day, Nesbitt also filed a motion for the District Judge to recuse himself. On May 29, 2015, Nesbitt filed a motion to appoint counsel and schedule an evidentiary hearing in connection with his motion to vacate under § 2255. The government has not seen fit to respond to any of Nesbitt’s numerous ancillary motions. These matters are now ripe for the court’s review.

         II. STANDARD OF REVIEW

         Nesbitt filed the instant motions pro se. Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

         Nesbitt proceeds under 28 U.S.C. § 2255, which provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         The government has filed a motion for summary judgment. Summary judgment shall be granted if the movant shows there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

         III. DISCUSSION

         Resolving the merits of Nesbitt’s motion to vacate under § 2255 disposes of many of the issues presented in Nesbitt’s numerous ancillary motions. The court will begin by addressing Nesbitt’s motion for the court to recuse, since granting this motion would relieve the court of the task of addressing any other issues.

         A. Motion for Recusal

         Nesbitt argues that recusal is proper under 28 U.S.C. § 455(a), which provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Nesbitt points to two prior rulings in this case, which he contends were so lacking in legal support and adverse to his interest that they would “cause a person with knowledge of the relevant facts reasonably to question the impartiality of this Judge and, in fact, believe in the Judge’s actual bias against [him].” ECF No. 320, Pet’r’s Mot. to Recuse 4-5. Specifically, Nesbitt contends that this court abused its discretion at a status conference following the resolution of Nesbitt’s initial appeal by stating that it lacked jurisdiction to resentence Nesbitt until his petition for certiorari was resolved. Id. at 2. Nesbitt further contends that this court ignored established Fourth Circuit precedent by denying his motion to correct the Amended Judgment where there was an alleged discrepancy between the oral judgment and written judgment. Id. at 4; see also ECF Nos. 311, 312 (Nesbitt’s motion to amend/correct and this court’s order denying that motion).[2]

         Nesbitt’s latter argument fails from the outset. The Fourth Circuit affirmed this court’s denial of Nesbitt’s motion to correct the Amended Judgment in a July 1, 2015 opinion. ECF Nos. 333, 338. Thus, there is no indication that the court’s denial of that motion was legally erroneous.

         However, even assuming the court’s rulings[3] were erroneous, they do not provide adequate grounds for recusal. The Supreme Court has explained that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion” under § 455(a). Liteky v. United States, 510 U.S. 540, 555 (1994). This is because that section’s concern with “partiality” is only implicated by “judicial predispositions that go beyond what is normal and acceptable.” Id. at 552. A judicial predisposition may be inappropriate “either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . ., or because it is excessive in degree . . . .” Id. at 550. Courts rulings, in and of themselves, “cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required [] when no extrajudicial source is involved.” Id. at 555.

         In this case, Nesbitt effectively contends that the court appears biased against him due to the fact that the court allegedly misapplied the law in a manner that is detrimental to his interests. Pt’r’s Mot. to Recuse 4-5. Nesbitt points to nothing indicating that these adverse rulings were based on extrajudicial information. Nor do they reveal a “deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky, 510 U.S. at 556. To infer such antagonism from the allegation that the court’s adverse ruling was in error would effectively require recusal every time a court made any decision. This result is absurd. The Supreme Court recognized as much in Liteky when it stated that judicial rulings are “[a]lmost invariably . . . proper grounds for appeal, not recusal.” Id. at 555. Therefore, the court denies Nesbitt’s motion for recusal.

         B. Motion to Amend

         Before turning to the merits of the case, the court also addresses Nesbitt’s motion to amend his original motion to vacate under § 2255. ECF No. 299, Pet’r’s Mot. to Amend. Nesbitt’s motion to amend simply seeks to add three additional claims to his original motion to vacate. Because the government has not responded to this motion, the court will grant Nesbitt’s motion to amend and will evaluate the additional claims described by that motion.

         Having resolved these preliminary issues, the court now addresses Nesbitt’s numerous claims for relief under § 2255.

         C. Motion to Vacate Under § 2255 and Motion to Dismiss

         1. Breach of Agreement to Send Information or Offer Plea

         A large portion of Nesbitt’s claims depend, in one way or another, on his contention that the government breached an oral agreement to send an Information to Indiana resolving his South Carolina charges in exchange for him signing the Proffer Agreement. See Attach. to Pet’r’s Mot. 1-6. Two of Nesbitt’s government misconduct claims directly attack the legitimacy of the Proffer Agreement, arguing that it was induced by the government’s promises under the alleged oral agreement, which were never fulfilled. Id. at 1-2. Nesbitt also argues that the court deprived him of due process by failing to hold an evidentiary hearing on his claim that the government breached the oral agreement. Id. at 1. Nesbitt further argues that his pretrial and trial counsel were inadequate for failing to challenge the use of information obtained through his proffer statement, and that his appellate counsel was inadequate for failing to challenge the court’s rulings regarding the Proffer Agreement. Id. at 2-6.

         “The interpretation of plea agreements is guided by contract law, and parties to the agreement should receive the benefit of their bargain.” United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997); United States v. Martin, 25 F.3d 211, 216-17 (4th Cir. 1994) (“Although plea agreements between the government and a defendant are unique and call for special due process considerations, the judicial interpretation of plea agreements is largely governed by the law of contracts.”). This rule also applies to proffer agreements. See United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998) (“The construction of proffer agreements, like plea agreements, is governed generally by the principles of contract law, as we have adapted it for the purposes of criminal law.”). The court recognizes that the purported oral agreement in this case is alleged to be neither a plea agreement nor a proffer agreement, but an agreement to offer a plea agreement in exchange for the signing of a proffer agreement. Despite this distinction, the court sees no reason to depart from the general rule that such agreements are governed by the general principles of contract law.[4]

         “One of contract law’s fundamental doctrines is that there can be no agreement unless there is a ‘meeting of the minds.’” United States v. White, 628 F. App’x 848, 851- 52 (4th Cir. 2015) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). This “meeting of the minds” requires that the parties have mutually assented to the essential elements of the bargain. Id. at 852. “Where ‘substantial confusion’ calls into question whether there has been such a meeting of the minds over a plea bargain, there is no valid agreement to be enforced.” Id.

         Here, Nesbitt concedes there was no formal plea agreement, but argues there was an “oral agreement to send an Information to Indiana” in exchange for Nesbitt signing the Proffer Agreement. Resentencing Hr’g Tr. 32:5-7, 33:14-21;[5] see also Pet’r’s Response 5 (disputing the government’s characterization of his breach of agreement argument and stating that not all agreements are plea agreements). There is certainly no indication of any such agreement in the Proffer Agreement itself. Proffer Agreement 1-4. Nesbitt has identified excerpts from a series of emails sent by the government’s counsel in an effort to show that the purported agreement existed. Resentencing Hr’g Tr. 29:4-22; ECF No. 249, Attach. to Objs. to Use of Existing Presentence Investigation Report During Resentencing 10-11. Nesbitt outlined this argument at his resentencing hearing:

On May 14, 2008, [the government’s counsel] stated: “I should be sending you an Information soon, which hopefully Nesbitt will be able to plead guilty to along with the counterfeiting charges up [in Indiana].” This agreement was made through my attorney in Indiana to me from [the government’s counsel] that if I signed the [Proffer][6] Agreement, this would happen.
Another e-mail from [the government’s counsel] to [defense counsel]. On July 16, 2008. “I know it's been said before, but I am close to sending you the Information and Plea Agreement.” Before I signed the proffer and before I debriefed.
Another e-mail from [the government’s counsel] to [defense counsel] July 29th, 2008. “My intention is not to wipe out any help he gets for his assistance in the Indiana case. I don't have any objections at this time to the 5K reduction applying to my charges as well if possible.”

         Resentencing Hr’g Tr. 29:4-22.

         However, these excerpts do not evince a final agreement created through “mutual assent” but rather show only preliminary discussions and the possibility of a future agreement. The first email states that “hopefully Nesbitt will be able to plead guilty” to the charges in the forthcoming information, indicating that the plea was not a foregone conclusion. The second email, which notably post-dates Nesbitt’s first proffer interview, simply references the same information and clearly indicates that the plea agreement had yet to be offered, much less agreed upon by the parties. Finally, the third email, which post-dates both of Nesbitt’s proffer interviews, references a potential plea arrangement and states that the government has no “objections at this time, ” implying that the government retained the authority to decline such an agreement.

         Nesbitt attempts to avoid this interpretation of the emails by arguing that the government never agreed to a particular plea arrangement, but simply agreed to offer a plea agreement. However, the emails do not provide any indication that the plea negotiations were being conducted pursuant to some prior oral agreement, and they certainly do not suggest that the government was obligated to provide a plea offer by any such agreement. The emails simply reflect plea negotiations. Evidence that plea negotiations occurred cannot, in and of itself, constitute evidence that plea negotiations, much less a plea offer, were required by some ancillary oral agreement. The logic underlying such a finding is simply not reasonable; the fact that a party takes some action, or prepares to take some action, does not mean that such action was contractually obligated. To the extent the emails provide any indication of the forces motivating the government’s plea negotiations, they suggest that the government was guided only by its own “intentions, ” not its obligations. Id. at 29:19-20. Therefore, the court finds that Nesbitt has failed to present evidence of any alleged oral agreement.

         Consequently, all of Nesbitt’s proffer related claims in his motion to vacate must fail. Grounds Two A and Two B, which directly allege that the government failed to fulfill its obligations under the oral agreement fail for lack of factual support as described above.

         Grounds Three B, Three E, and Three F all allege ineffective assistance of counsel based on defense counsel’s failure to challenge the indictment, trial evidence, and sentencing guideline calculations, which were all based on information gained through the Proffer Agreement. Similarly, Ground Three G alleges that Nesbitt’s appellate counsel was inadequate for failing to challenge the court’s rulings regarding the Proffer Agreement and failure to conduct an evidentiary hearing on the issue. Ineffective assistance of counsel claims require the petitioner to “show that [his] attorney[’s] performance fell below an objective standard of reasonableness and that [he] suffered prejudice as a result.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Because the court finds no factual support for Nesbitt’s contention that the Proffer Agreement was not involuntarily or unknowingly made, the court finds that any challenges to the indictment, trial evidence, guidelines calculations, or related court rulings relying on that contention would have failed. Thus, Nesbitt cannot show that there is a reasonable probability that he was prejudiced by his counsel’s failure to mount such attacks, and his counsel’s decision to forego such a strategy was likely reasonable.

         Ground One alleges that the court denied Nesbitt due process by failing to hold an evidentiary hearing to determine whether the proffer statement was knowingly and voluntarily given, and whether the information used to calculate the guidelines range was the result of the government’s breach of agreement. The Fourth Circuit “has never held that an evidentiary hearing is required to resolve disputed matters at sentencing. Only when the reliability of evidence is an issue has [the Fourth Circuit] held that an evidentiary hearing is necessary.” United States v. Jackson, 155 F.3d 562 (4th Cir. 1998). Even when the court does hold an evidentiary hearing to resolve sentencing issues, the hearing need not take any specific form. See United States v. Reyna, 611 F. App’x 124, 126 (4th Cir. 2015) (“While ‘the court must ensure that the parties have an adequate opportunity to present relevant information [on a disputed issue], ’ there is no affirmative requirement that the court allow live testimony.” (quoting U.S. Sentencing Guidelines Manual § 6A1.3, cmt. (2013))).

         Here, Nesbitt submitted objections outlining his arguments prior to the resentencing hearing, ECF No. 249, and took the opportunity to argue his position at the hearing itself. Resentencing Hr’g Tr. 25:15-35:5. In fact, the court accepted that the emails Nesbitt relied on were valid, but simply found them insufficient to support his legal claim. Id. at 34:2-15. Thus, the court finds that Nesbitt had ample opportunity to present his arguments. Moreover, Nesbitt’s allegation that the proffer statement was not knowing and voluntary does not turn on the reliability of the evidence, so no evidentiary hearing was necessary. Finally, the court accepted the legitimacy of the emails in finding that the proffer statement was knowing and voluntary. Id. at 34:6-12 (relying on dates of the emails to find no meeting of the minds). Thus, any error in not ordering an evidentiary hearing was harmless. United States v. Dutton, 92 F.3d 1183 (4th Cir. 1996) (finding that “any error regarding the denial of the continuance motion ...


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