United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
CLARK, SENIOR DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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.
The Motion to Vacate or Correct Sentence
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.
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:
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?
DEFENDANT: I didn't know that. I thought I would retain
my rights to ...
COUNSEL: Not your conviction - can I have a moment?
Dickey speaks with the Defendant off the record].
COURT: So, with this arrangement, Mr. Varner, you could
appeal your sentence, if you wanted to, but you can't
appeal the conviction, your ...