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Williams v. United States

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

February 5, 2018

Webster Douglas Williams, III, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Webster Douglas Williams's (“Petitioner's”) pro se [ECF #291] motion to vacate, set aside, or correct sentence (“motion to vacate”) pursuant to 28 U.S.C. § 2255. Also pending is the Government's [ECF #341] motion for summary judgment.

         Procedural History and Factual Background

         Petitioner was indicted on December 18, 2012, in a four count indictment for child pornography related offenses. [ECF #2]. Count one alleged that on or about September 22, 2006, Petitioner knowingly induced or coerced a minor, “Jane Doe #1, ” to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of 18 U.S.C. § 2251(a) and (e). Count two alleged that on or about September 4, 2011, Petitioner knowingly induced or coerced a minor, “Jane Doe #2, ” to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of 18 U.S.C. § 2251(a) and (e). Count three alleged that from December 19, 2009, to December 23, 2009, Petitioner traveled in interstate commerce with a minor, “Jane Doe #1, ” for the purpose of engaging in a sexual act in violation of 18 U.S.C. § 2423(b). Count four alleged that on or about November 12, 2011, Petitioner knowingly possessed child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Ultimately, Petitioner pled guilty to counts one, three, and four in exchange for a stipulated sentencing range of 262 to 327 months.

         On June 24, 2013, Petitioner's defense counsel filed a motion to suppress all evidence obtained as a result of a search of Petitioner's home on November 12, 2011, including a subsequent search of electronic storage devices on November 18, 2011. On January 8, 2014, the Court conducted a hearing on the motion to suppress. On January 13, 2014, Petitioner's defense counsel filed a supplemental memorandum in support of the previously filed motion to suppress. After a second hearing on February 19, 2014, the Court denied Petitioner's motion to suppress in an Order dated March 12, 2014.

         On June 16, 2014, Petitioner signed a plea agreement pursuant to Rule 11(c)(1)(C), which provided that Petitioner would plead guilty to counts one, three, and four in exchange for a stipulated sentencing range of 262 to 327 months imprisonment. The plea agreement also provided that Petitioner agreed to pay restitution in an amount to be determined by the Court at sentencing. Petitioner further agreed in the plea agreement to pay Jane Doe #1 restitution in the amount of $136, 600.00 plus $550 per month during the time he is incarcerated with said payments to begin one year from the day Petitioner was sentenced. The plea agreement contained a valid waiver of appeal provision waiving Petitioner's right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceedings under 28 U.S.C. § 2255. The appeal waiver did not apply to claims of ineffective assistance of counsel or prosecutorial misconduct.

         The Court conducted a change of plea hearing on June 16, 2014, and accepted Petitioner's guilty plea after conducting a complete Rule 11 plea colloquy. The Court deferred acceptance of the Rule 11(c)(1)(C) plea agreement until after the Court had the opportunity to review the presentence investigation report prepared by the U.S. Probation Office. Upon motion of the government, the Court sealed the portion of the change of plea hearing that involved the minor victim.

         A presentence investigation report (“PSR”) dated August 14, 2014, and revised on September 16, 2014, was prepared by the U.S. Probation Office. With regard to sentencing options, the PSR stated that Petitioner's maximum possible statutory sentence was a total of 840 months or 70 years (30 year maximum for count one 30 maximum for count three 10 year maximum for count four). Petitioner's advisory guideline range was 360 months to life imprisonment. As to restitution to the victim of counts one and three, the PSR stated that the Petitioner agreed to pay restitution to Jane Doe #1 in the amount of $136, 600 plus $550 per month during the time Petitioner is incarcerated with the payments to begin one year after sentencing. Accordingly, the PSR indicated that restitution to Jane Doe #1 would be calculated as follows: (number of months received at sentencing - 12 months x $550.00 per month $136, 600.00). With respect to restitution to the victims of count four (possession of child pornography count), the PSR indicated that the victims requested restitution in the amount of $177, 500.00.

         On December 19, 2014, Petitioner was sentenced to 327 months imprisonment pursuant to his Rule 11(c)(1)(C) plea agreement. Petitioner was also placed on supervised release for life upon his release from prison and ordered to pay restitution to Jane Doe #1 in the amount of $309, 850.00. Petitioner was also ordered to pay restitution to the victims of count four in the amount of $177, 500.00. The total amount of restitution ordered was $487, 350.00 to all of Petitioner's victims. Again, upon motion of the government, the Court sealed the portion of the sentencing hearing that involved the minor victim.

         After sentencing on December 19, 2014, Petitioner filed a waiver of appeal indicating the following: 1) that he had been notified by the court of his right to appeal; 2) the time limit for filing a notice of appeal; 3) that he had discussed his right to appeal with his attorney; and 4) that he did not want to appeal.

         Judgment was filed on January 7, 2015, and an Amended Judgment reflecting priority of the victims for restitution was filed on February 10, 2015.

         Petitioner filed his first motion to vacate under 28 U.S.C. § 2255 on December 7, 2015, raising, among other issues, a claim that his lawyers were ineffective for failing to file a direct appeal when requested. On July 12, 2016, the Court granted in part Petitioner's motion to vacate. Specifically, the motion to vacate was granted only as to ground four on the issue of counsel's alleged failure to file a direct appeal when instructed to do so. The Court vacated Petitioner's sentence and immediately re-imposed and reinstated the same conviction with the date of judgment being July 12, 2016. The remaining claims in Petitioner's motion to vacate were dismissed without prejudice.

         On July 12, 2016, the Court appointed the Federal Public Defender's Office to represent Petitioner on his direct appeal. Petitioner, through counsel, filed a notice of appeal on July 13, 2016, appealing his criminal conviction and sentence.

         On October 25, 2016, the government moved to dismiss Petitioner's direct appeal based on the appeal waiver contained in Petitioner's plea agreement.

         On December 20, 2016, the Fourth Circuit Court of Appeals granted the government's motion to dismiss and dismissed Petitioner's direct appeal. The mandate and judgment were issued on January 11, 2017.

         Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on February 6, 2017.

         Petitioner has made numerous filings and asserts what appear to be 31 grounds for relief, many of which overlap or are duplicative to some extent and are addressed accordingly in this Order.

         On June 22, 2017, the government filed a response and motion for summary judgment. Petitioner has made several filings in opposition to the government's motion to dismiss.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Nonconstitutional claims may be brought pursuant to § 2255, but will not provide a basis for collateral attack unless the error involves a “fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct., 2235, 2240 (1979); United States v. Morrow, 914 F.2d 608, 613 (4th Cir. 1990).

         A petitioner cannot ordinarily bring a collateral attack on the basis of issues litigated on direct appeal. United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013) (stating petitioner “cannot ‘circumvent a proper ruling . . . on direct appeal by re-raising the same challenge in a § 2255 motion'”); United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.), cert denied, 429 U.S. 863, 97 S.Ct. 169 (1976). An exception occurs where there has been an intervening change in the law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2302 (1974). Additionally, where a defendant could have raised a claim on direct appeal but fails to do so, the claim may only be raised in a federal habeas proceeding if the defendant can show both cause for and actual prejudice from the default, see Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or that he is actually innocent, see Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

         In deciding a motion to vacate, the court may summarily dismiss the motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rules Governing Section 2255 Proceedings 4(b); see 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief). An evidentiary hearing “is required when a movant presents a colorable [ ] claim showing disputed material facts and a credibility determination is necessary to resolve the issue.” United States v. Coon, 205 F. App'x 972, 973 (4th Cir. 2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000)). However, a hearing is not required unless the claim shows “disputed facts involving inconsistencies beyond the record.” United States v. Robinson, 238 F. App'x 954, 955 (4th Cir. 2007). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139-40 (4th Cir. 2007). “Thus, no hearing is required if the petitioner's allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statement of fact.' ” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).

         Petitioner's motion to vacate alleges, among other things, ineffective assistance of counsel. Claims of ineffective assistance of counsel are constitutional in nature and therefore are properly asserted under § 2255. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Constitution. amend VI. The United States Supreme Court has interpreted the Sixth Amendment to require that counsel be effective. Strickland v. Washington, 466 U.S. 668, 686, (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). In order to prevail on an ineffective assistance claim, petitioner must satisfy the two-prong test of Strickland that (1) his “counsel's representation fell below an objective standard of reasonableness, ” id. at 688; and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A court applying the Strickland test may apply either prong first and does not need to analyze both prongs of the test if petitioner makes “an insufficient showing on one.” Id. at 697.

         In examining the performance of counsel, there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689. A reviewing court must be highly deferential in scrutinizing counsel's performance and must filter from its analysis the “distorting effects of hindsight.” Id.

         Regarding “deficient performance, ” a court must defer to counsel's tactical decisions and give counsel the benefit of a strong presumption of reasonableness. See Id. at 689. While an attorney has a duty to investigate reasonable claims and defenses, an attorney's performance cannot be deemed ineffective or deficient if he fails to raise a defense which is “very weak”. Smith v. State of South Carolina, 882 F.2d 895, 898 (4th Cir. 1989); Sistrunk v. Vaughn, 96 F.3d 666, 671 (3rd Cir. 1996). A habeas petitioner alleging prejudice must show “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome may have been different but for counsel's error is not dispositive of the “prejudice” inquiry. Rather, a court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Id. A defendant cannot show that a proceeding was fundamentally unfair if the underlying claims the attorney failed to raise are meritless, because the outcome of the proceeding would not have been different.

         Analysis

         Grounds 1 and 23 - Counsel Animus Towards Petitioner

         In grounds one and twenty-three, Petitioner alleges he was denied effective assistance of counsel based trial counsels' animus towards him. Petitioner contends that "counsel so despised Movant for the offenses with which Movant was charged that he could not provide the loyalty and assistance demanded by the Sixth Amendment." [ECF No. 296 at 19]. Petitioner argues that his attorneys were working against him and he never stood a chance to have a fair hearing. Id. at 51. Petitioner also states that a financial conflict arose between himself and Mr. Brittain over the alleged liquidation of Petitioner's share of a $24 million dollar estate. Petitioner states he believes his attorneys were so fixated on Petitioner's money that they were blinded to performing adequately. He does not indicate how this led to ineffectiveness, or inadequacy of representation, nor the purpose of the liquidation (e.g. to generate monies for restitution, fees, etc.). Moreover, Petitioner does not allege that he was not a willing participant in any such transactions.

         Regardless, Petitioner's claims are in direct conflict with his sworn testimony during his guilty plea hearing. At the guilty plea hearing, Petitioner testified as follows:

The Court: Are you satisfied with the manner in which your attorneys have advised you and represented you?
Petitioner: Yes, sir.
The Court: Have you talked with your attorneys for as often and for as long as you felt it was necessary for them to represent you?
Petitioner: Yes, sir.
The Court: Do you need any more time to talk to your attorney?
Petitioner: No, sir.
The Court: Have you understood your conversations with your attorneys?
Petitioner: Yes, sir.
The Court: Has your attorney done everything for you that you feel he should have done or could have done for you?
Petitioner: Yes, sir.
The Court: Has your attorney failed to do anything that you've asked them to do?
Petitioner: No, sir.
The Court: Is there anything else you wanted your attorneys to do prior to this hearing?
Petitioner: No, sir.
The Court: Are you completely satisfied with your attorney's services?
Petitioner: Yes, sir.
The Court: Do you have any complaint that you want to make to the Court about your attorney?
Petitioner: No, sir.

[Plea hearing tr., ECF NO. 159 at 30-35].

         "[A] defendant's solemn declarations in open court affirming [a plea] agreement ... ‘carry a strong presumption of verity.” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). Courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. United States v. Bowman, 348 F.3d 408, 417 (4th Cir.2003). In the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always “palpably incredible” and “patently frivolous or false.” See Crawford v. United States, 519 F.2d 347, 350 (4th Cir.1975) (holding that “the district court was not required to conduct an evidentiary exploration of the truth of an allegation in a § 2255 motion which amounted to no more than a bare contradiction of statements made by [the petitioner] when he pleaded guilty”), partially overruled on other grounds by United States v. Whitley, 759 F.2d 327 (4th Cir.1985) (en banc); Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.1996) (“[The petitioner] [i]s bound by his solemn declarations in open court and his unsubstantiated efforts to refute that record [a]re not sufficient to require a hearing. This case does not involve the most extraordinary circumstances.”) (internal quotation marks omitted); Ouellette v. United States, 862 F.2d 371, 377-78 (1st Cir.1988) (holding that an evidentiary hearing is not required when a petitioner's uncorroborated allegations are directly contradicted by his testimony at the time of his plea colloquy); see also Bowman, 348 F.3d at 417 (“[W]hen a defendant says he lied at the Rule 11 colloquy, he bears a heavy burden in seeking to nullify the process.”).

         "Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations ...


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