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Varner v. United States

United States District Court, E.D. Texas, Tyler Division

May 30, 2019

DANNY VARNER
v.
UNITED STATES OF AMERICA

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

          RON CLARK, SENIOR DISTRICT JUDGE

         The Movant Danny Varner, proceeding pro se, filed this motion to vacate or correct his sentence under 28 U.S.C. §2255 complaining of the validity of his federal conviction and sentence. This Court ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

         I. Background

         On January 23, 2013, Varner was indicted on one count of possession with intent to distribute more than 50 grams of methamphetamine, which carries a penalty range of 10 years to life in prison. He and the Government could not agree on a written plea agreement, but Varner ultimately agreed to plead guilty to an information charging him with possession with intent to distribute methamphetamine, which carries a penalty range of up to 20 years in prison.

         Varner entered an open plea of guilty on January 23, 2014. There was no signed plea bargain agreement. Assistant United States Attorney Bill Baldwin stated that the only agreement between the parties was that if Varner entered the open plea to the information, the Government would dismiss the underlying indictment.

         At the plea hearing, Varner testified that he understood what had happened in his case, he knew what he would be doing in court that day, he wished to waive his right to indictment, he was satisfied with his attorney, Assistant Federal Public Defender Wayne Dickey, he wished to plead guilty because he was in fact guilty, and he would give up a number of rights by persisting in his plea of guilty. He acknowledged that the factual resume was correct.

         Dickey told the Court that there was a question as to whether or not Varner was a career offender. If Varner pleaded to a charge carrying a penalty of 10 years to life, he would be looking at a plea for 262 months under the Sentencing Guidelines, and if he went to trial and was found guilty, he would be looking at a range of 360 months to life. However, Dickey stated that he and Baldwin had reached an agreement which would result in a sentencing range of 151 to 188 months if he were found to be a career offender, and Baldwin was willing to agree to a sentence of 188 months.

         A sentencing hearing was held on October 29, 2014, at which Varner was sentenced to 188 months in prison. He was represented at this hearing by Tonda Curry. The judgment was entered on November 3, 2014.

         On January 25, 2015, Varner wrote a letter to the Court asking about his appeal, saying that he “gave every indication of desire to have appellate review. I even left my publications on appeal with Tonda Curry prior to leaving Smith County.” However, he stated that he never received a notice that his appeal had been filed and he learned there was a time limit in which to appeal. The letter was construed as a notice of appeal, but the appeal was dismissed as untimely on January 10, 2017.

         II. The Motion to Vacate or Correct Sentence

         On May 29, 2018, Varner signed his motion to vacate or correct sentence under 28 U.S.C. §2255. He explained he filed a notice of appeal on February 2, 2015, referring to the letter he had signed on January 25, and said that on February 26, 2015, Curry withdrew as counsel and Charles Van Cleef was appointed to represent him. Van Cleef filed an Anders brief and motion to withdraw, but according to Varner, the Fifth Circuit invited further scrutiny of the career offender sentencing and directed Van Cleef to supplement the Anders brief or file a merits brief. While the appeal was pending, Varner filed a pro se motion for sentence reduction under 18 U.S.C. §3582. The motion was denied and Varner appealed, and Van Cleef was appointed as counsel in that appeal as well. The appeals were consolidated and later dismissed as untimely.

         Varner raised three grounds in his motion to vacate or correct sentence. In his first ground, he asserted that he wanted to appeal but Curry did not file a notice of appeal for him. He maintained that he consistently informed both Dickey and Curry that his desire was to retain his appellate rights, specifically as to sentencing, pointing to a portion of the transcript of the plea hearing reading as follows:

         THE COURT: Okay. So, Mr. Varner, in light of that, then I do want to ask you, that with the exception of those sentencing determinations, this plea will give up your right to appeal your conviction in this case. And do you understand that?

         THE DEFENDANT: I didn't know that. I thought I would retain my rights to ...

         DEFENSE COUNSEL: Not your conviction - can I have a moment?

         THE COURT: Yes.

         [Mr. Dickey speaks with the Defendant off the record].

         THE COURT: So, with this arrangement, Mr. Varner, you could appeal your sentence, if you wanted to, but you can't appeal the conviction, your ...


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