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Wafer v. United States

United States District Court, N.D. Texas, Dallas Division

February 26, 2018

MICHAEL WAFER, ID # 47873-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the motion to vacate, set aside, or correct sentence should be DENIED with prejudice.

         I. BACKGROUND

         Michael Wafer (“Movant”), a federal prisoner, challenges his criminal judgment in Cause No. 3:14-CR-63-B (4). (See doc. 1.)[1]

         Movant pleaded guilty to conspiracy to commit carjacking, carjacking, and using, carrying, or brandishing a firearm during a crime of violence. (See doc. 142.) The Court sentenced him to 180 months' imprisonment, with a 2-year term of supervised release. (See id.)

         Movant appealed, arguing only that the Court had imposed a sentence that exceeded the statutory maximum on one of the counts. See United States v. Wafer, No. 15-10089, doc. 59 at 32-35 (5th Cir. Nov. 12, 2015). While his direct appeal was pending, the Court entered an amended judgment that cured the alleged error, but left unchanged his aggregate prison sentence. (See doc. 190.) Movant's direct appeal was then dismissed as moot. (See doc. 192.)

         Movant now claims that the indictment was defective. (See 3:16-CV-2170-B, doc. 1 at 4, 12-16.) He also claims that his counsel was ineffective for failing to challenge the indictment, investigate his case, argue persuasively at sentencing, and pursue an appeal as to “important errors” and “complex issues.” (See Id. at 17-19.) Movant further claims that the plea colloquy was “flawed” because the Court failed to advise him of his constitutional rights, explain to him the charges, or ascertain whether his plea was knowing and voluntary. (See Id. at 20-22.)

         II. SCOPE OF RELIEF AVAILABLE UNDER § 2255

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted).

         III. THE INDICTMENT

         Movant first claims that the indictment was defective because it failed to “charge an offense against the United States, ” to explain what mens rea was required to prove carjacking, and to put him “on notice” of “which of the two (2) subsections of [] 18 U.S.C. Section 2” he was charged with. (See 3:16-CV-2170-B, doc. 1 at 4, 16.) Movant waived these challenges to the indictment, however, when he pleaded guilty. “A voluntary and unconditional guilty plea waives all non-jurisdictional defects, ” United States v. Scruggs, 714 F.3d 258, 261-62 (5th Cir. 2013), and defects in the indictment are not jurisdictional because they “do not deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630-31 (2002); see also United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002) (“Cotton demonstrates that standard waiver principles apply to defects in the indictment.”).

         Even if Movant's challenges to the indictment were not waived, they are meritless. Contrary to Movant's first challenge, the indictment did charge carjacking as an offense against the United States. (See doc. 1 at 1 (charging Movant with conspiracy to commit carjacking as “a certain offense against the United States”).) Likewise, and contrary to Movant's second challenge, Count 3 did make clear the required mens rea. (See doc. 1 at 6.) It charged that Movant and his coconspirators, “aiding and abetting one another, with intent to cause death and serious bodily harm, did knowingly and unlawfully take” the victim's vehicle “by force violence and by intimidation.” (Cf. 3:16-CV-2170-B, doc. 1 at 19 (arguing that “[t]he indictment never even had any mens[]rea to even charge an offense against the United States.”).)

         More fundamentally, Movant's principal claim-that the indictment was defective because it did not “indicate which of the two (2) subsections of [] 18 U.S.C. Section 2 [he] was being charged with, [a] or [b]”-rests on a faulty legal premise. Section 2 “does not define a crime but merely makes punishable as a principal one who aids or abets another in the commission of a substantive offense.” United States v. Cowart, 595 F.2d 1023, 1031 n. 10 (5th Cir. 1979). Because “[a]iding and abetting is not a separate offense, but it is an alternative charge in every indictment, whether explicit or implicit, ” United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992), the indictment was not required to identify whether Movant was liable under Section 2(a) or 2(b). See Id. (holding that the district court did not err in instructing the jury that it could convict the defendant of aiding and abetting where the indictment charged her only as a principle, and “did not include aiding and abetting language or charger her with conspiracy, ” because aiding and abetting is not a separate offense). Movant's challenges to the indictment are both waived and meritless.

         IV. INEFFECTIVE ...


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