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United States v. Freeman

United States District Court, S.D. Texas, Houston Division

June 14, 2018

United States of America
v.
Walter Keitric Freeman

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER UNITED STATES DISTRICT JUDGE.

         Defendant, a federal prisoner represented by counsel, filed this section 2255 motion challenging his convictions and sentences for conspiracy to interfere with commerce by robbery and discharging a firearm during a crime of violence. (Docket Entry No. 197.) The Government filed a motion for summary judgment premised on Defendant's plea agreement waiver. (Docket Entry No. 201.) Defendant filed a response in opposition. (Docket Entry No. 202.)

         Having reviewed the section 2255 motion, the motion for summary judgment, the response, the record, and the applicable law, the Court GRANTS the Government's motion for summary judgment and DENIES section 2255 relief for the reasons that follow.

         Background and Claims

         Defendant pleaded guilty to conspiracy to interfere with commerce by robbery and discharging a firearm during a crime of violence. The Court sentenced him to a total of 177 months' imprisonment, to be followed by a five-year term of supervised release, and ordered restitution in an amount of $200, 000.00 and a $200.00 special assessment.

         Defendant's appeal was dismissed as barred by his plea agreement waiver. United States v. Freeman, Appeal No. 13-20405 (5th Cir. 2014).

         Defendant raises the following claims in his section 2255 habeas petition:

1. Pretrial counsel was ineffective in failing to
a. properly communicate and inform him of the risks and consequences of pleading guilty as opposed to proceeding to trial;
b. conduct an adequate, independent pretrial investigation;
c. file pretrial motions to put the Government's case to an adversarial test; and d. negotiate a favorable plea agreement.[1]
2. Sentencing counsel was ineffective in failing to
a. review, discuss and explain the PSR;
b. file a memorandum in mitigation of punishment; and
c. object to the sentence as substantially unreasonable.

         The Government argues that these claims are barred by Defendant's plea agreement waiver and that habeas relief should be denied.

         Legal Standards

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

         The pleadings of a pro se prisoner litigant are reviewed under a less stringent standard than those drafted by an attorney, and are provided a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, apro se litigant is still required to provide sufficient facts to support his claims, and "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertion on a critical issue in his pro se petition ... to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

         Analysis

         In his written plea agreement executed and filed in this criminal case, Defendant agreed to the following provisions:

8. Defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. The defendant agrees to waive the right to appeal the sentence imposed or the manner in which it was determined on any grounds set forth in Title 18 U.S.C. § 3742. Additionally, the defendant is aware that Title 28, U.S.C. § 2255, affords the right to contest or "collaterally attack" a conviction or sentence after the conviction or sentence has become final. The defendant waives the right to contest his/her conviction or sentence by means of any post-conviction proceeding. In the event the defendant files a notice of appeal following the imposition of the sentence, the United States will assert its rights under this agreement and seek specific performance of this waiver.

(Docket Entry No. 90.)

         During the plea hearing, the Court inquired into the voluntariness of Defendant's written plea agreement:

THE COURT: All right. Counsel, I understand there's a written plea ...

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