The opinion of the court was delivered by: Monti L. Belot United States District Judge
Before the court are the following:
1. Defendant's pro se motion pursuant to 28 U.S.C. § 2255 (Doc. 742);
2. Government's response (Doc. 793); and
3. Defendant's reply (Doc. 801).
The court also has reviewed the transcripts and orders of proceedings in this court, the presentence report and the Tenth Circuit's Order and Judgment of December 27, 2010, affirming defendant's convictions and sentence (Doc. 741). The court is well aware of the standards pertaining to pro se submissions and claims regarding ineffective counsel. For the following reasons, the court concludes that the motion and the files and records conclusively show that defendant is entitled to no relief and thus denies the motion.
I. Facts and Procedural History
Defendant was initially indicted on December 19, 2007, along with eight co-defendants and a total of forty-seven counts.*fn1
The superceding indictment alleged that defendant was the organizer of a criminal conspiracy to distribute cocaine. (Doc. 17). Defendant was the leading member of the conspiracy and was charged in the majority of the counts. On March 14, 2008, defendant's retained trial counsel, Charles O'Hara, filed a motion to suppress items seized pursuant to a search warrant and in a traffic stop. (Doc. 93). The court granted defendant's motion to suppress the items seized pursuant to the warrant but denied the motion to suppress the items seized during the traffic stop. (Doc. 122). During that same time period, the court also granted Michael Biglow's, a co-defendant, motion to suppress. The government appealed the order pertaining to Biglow but it did not appeal the granting of defendant's motion. The government was successful on appeal and thereafter sought a superceding indictment against defendant and several others.
In the second superceding indictment, defendant was alleged to have been the primary member of a conspiracy involving fifteen co-defendants. (Doc. 214). Defendant's retained counsel notified the court that he had a conflict and defendant requested court appointed counsel. The court appointed Lee Woodard, a very experienced attorney. Woodard filed twelve motions on defendant's behalf, including a motion to dismiss several counts in the superceding indictment and a renewed motion to suppress the evidence obtained during the traffic stop. Woodard also joined in several co-defendants' motions to exclude the alleged co-conspirator statements which were obtained pursuant to a wiretap on two different phone lines belonging to Andrews. On October 29, 2009, the court granted defendants' motions in part and found that the government had not established a conspiracy between all defendants. (Doc. 565). The court noted that the conspiracy centered around Andrews and that it lacked any evidence that the members were interdependent but that the evidence showed that the members only relied on Andrews who in turn relied on Pizana and Abarca.*fn2 The court held that the statements could not be introduced to establish the conspiracy allegations between all members. As a result, the government moved to dismiss the second superceding indictment. (Doc. 572).
Defendant objected to the dismissal of the indictment on the basis that the prolonged continuance of the charges resulted in prosecutorial harassment. (Doc. 581). Defendant, however, was in the minority as the majority of defendants did not object to a dismissal of the case. Ultimately, the court allowed the government to dismiss the action without prejudice. The government, however, quickly -- within one week -- filed a third superceding indictment containing eighty-eight counts against defendant, including an allegation of a conspiracy with Jose Pizana. (Doc. 595). The court promptly set the case for trial in early January 2010.
Defense counsel filed several pretrial motions, including a motion to dismiss the indictment on speedy trial grounds. The court ruled on all motions (Doc. 644) and defendant ultimately pled guilty to all but two counts in the third superceding indictment. (Doc. 657). The plea agreement contained a waiver of appeal and waiver of a collateral attack. During the plea colloquy, the court discussed the waiver with defendant as follows:
THE COURT: Paragraph 9 says that if I accept the plea agreement but ultimately impose a sentence that you don't like, you can't withdraw your plea. And I think that's important because I cannot tell you today what sentence I'm going to impose; but if I accept your plea here today, you can't come back later and say I don't think I ought to have a sentence that high and I want a trial. You can't do that. The other very important paragraph, to me, anyway, is Paragraph 11. Have you been in a penitentiary before, Mr. Andrews?
DEFENDANT MR. ANDREWS: No, sir.
THE COURT: When people go to a penitentiary to serve a sentence, frequently they get buyer's remorse and decide that they either want to appeal or they want to what's called collaterally attack their sentence. An appeal, obviously, is an appeal to the next higher court, the Court of Appeals out in Denver. A collateral attack is different. A collateral attack is not an appeal. A collateral attack, whether it's under 28 U.S.C. Section 2255 or a Rule 60 or whatever, the case comes back to me. The Defendant who is now a prisoner files a so-called 2255 motion and the basic purpose is to ask me to reopen the case. There's all kinds of different grounds that are alleged. But the bottom line is that for some reason or another the defendant wants me to take the case back and start it over again. And in Paragraph 11 you are giving up your right to both appeal and file a collateral attack, with one exception, and that is this exception noted in the case of United States against Cockerham. And I will tell you the reason I think this is an important paragraph is because frequently defendants, when they plead guilty, they say they understand, they tell me that they understand what they're doing in this paragraph, which is giving up your right to appeal and giving up your right to file a collateral attack, and they do it anyway. And frequently they do it without a lawyer, particularly the 2255. And the Government comes back and cites this paragraph in the plea agreement and the Court of Appeals in Denver is almost universally now enforcing this paragraph against the defendant and dismissing the appeal or the collateral attack. So I think it's very important you understand it. Do you have any questions about what Paragraph 11 means?
DEFENDANT MR. ANDREWS: No, sir. (Tr. at 18-19).
The following colloquy occurred in response to questions concerning defendant's plea and ...