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United States v. Eatman

United States District Court, Tenth Circuit

September 27, 2013

DEMARIO A. EATMAN, Defendant. Criminal No. 07-20057-CM


CARLOS MURGUIA United States District Judge

Presently before the court is a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. 99) filed pro se by defendant Demario A. Eatman. Defendant did not file a memorandum in support of his motion. Also before the court are defendant’s motion requesting production of discovery material from counsel (Doc. 105) and motion for expansion of record (Doc. 106). For the reasons below, the court denies all three motions.

I. Background

Count 1 of the Indictment charged Defendant with being a felon in possession of a firearm. (Doc. 1.) On October 14, 2010, defendant pleaded guilty without a plea agreement to Count 1. (Docs. 77–78.) A presentence investigation report (“PSR”) was prepared for defendant and identified that he qualified as an armed career offender. (Doc. 79.) Defendant’s attorney, John Duma, filed objections to the PSR, several of which challenged whether defendant’s prior felony convictions—including, specifically, a conviction for resisting arrest by fleeing from an officer—qualified as “crimes of violence.” (Id.) Defendant’s objections were denied. On February 8, 2011, this court sentenced defendant to a term of imprisonment of 180 months, which was the mandatory minimum sentence he could receive based upon his status as an armed career offender.[1] (Docs. 84, 85, 92.)

On behalf of defendant, defendant’s attorney appealed the court’s decision, arguing that defendant should not be classified as an armed career offender. (Doc. 86.) The Tenth Circuit granted defendant’s motion to delay briefing until the Supreme Court reached a decision in a pending case, United States v. Sykes, 598 F.3d 334 (7th Cir. 2010), cert. granted, 131 S.Ct. 63 (2010), aff’d, 131 S.Ct. 2267 (2011). Sykes presented the question of whether a conviction for resisting arrest via vehicular flight qualified as a violent felony. Id. The Tenth Circuit dismissed defendant’s appeal on February 9, 2012. (Doc. 94.) Applying Sykes, the Tenth Circuit found that defendant was properly sentenced because his challenged conviction—even if it was merely for resisting an arrest for a felony crime— nonetheless qualified defendant as an armed career offender. (Id.) The Tenth Circuit issued a mandate on March 2, 2012. (Id.) Defendant did not file a writ of certiorari.

II. General § 2255 Standards

A defendant is entitled to relief under 28 U.S.C. § 2255 “[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . .” 28 U.S.C. § 2255. “The standard of review of Section 2255 petitions is quite stringent, ” and “[t]he court presumes that the proceedings . . . were correct.” United States v. Illescas, No. 04-20120-JWL, 05-3411-JWL, 2006 WL 1517760, at *1 (D. Kan. May 26, 2006) (quoting United States v. Nelson, 177 F.Supp.2d 1181, 1187 (D. Kan. 2001) (citations omitted)). “To prevail, [the] defendant must show a defect in the proceedings which resulted in a complete miscarriage of justice.” Id. (citation omitted).

III. Discussion

a. Ground One: Guilty Plea Was Not Knowingly, Voluntarily, and Intelligently Made

Defendant first argues that his guilty plea was not knowingly, voluntarily, and intelligently made. Defendant contends that his attorney made false promises and representations that defendant would not receive a sentence greater than 10 years, or 120 months. Defendant claims that he would not have pleaded guilty and would have insisted on going to trial if he had not relied on the false promises allegedly made by his attorney.

Although the court has a specific recollection of this change of plea hearing, the court has reviewed its notes for completeness in deciding this motion. The petition to enter a guilty plea and the court’s recollection of the change of plea colloquy both contradict defendant’s claim. The petition explicitly states that defendant’s lawyer informed him that “[t]he maximum penalty is 10 years unless the court determines that the defendant has three prior serious drug offenses or violent felonies or a combination of three therof [sic] as set out in 18 U.S.C. sec 924(e)(1).” (Doc. 78 at 2 (emphasis added).) This section was marked with an asterisk, was written in a typeface different from the rest of the petition, and was set off from the rest of the text. Further, the petition stated that defendant acknowledges that he will be asked questions about his offense, and that his answers will be made “under oath, on the record, and . . . that [his] answers may later be used against [him] in a prosecution for perjury or false statement.” (Id.) The petition also stated that defendant had “read, understood, and discussed with [his] attorney, each and every part of this Petition to Plead Guilty . . . and that the answers . . . are true and correct.” (Id. at 5.) Finally, the petition states that defendant’s plea is made “freely and voluntarily” and that it is “not the result of any force or threats against me, or of any promises made to me other than those noted in this petition.” (Id. at 4 (emphasis added).)

The change of plea colloquy also contradicts defendant’s claim. Just as is common practice at any change of plea hearing, the court asked defendant if he understood that he could receive a term of imprisonment of (in this case) not more than 10 years, or 120 months. Defendant said he understood this. But the court also asked defendant whether he understood that if he had three previous convictions for either a violent felony or a serious drug offense or both, then his term of imprisonment would be not less than (in this case) 15 years imprisonment, or 180 months. Defendant stated that he understood. Like in all cases, the court questioned defendant whether anyone had forced or threatened him in order to get him to plead guilty, and defendant said no. Defendant was also asked, and responded in the affirmative, if he had entered his plea of guilty freely and voluntarily and of his free will. Finally, the court asked defendant whether he was entering his plea of guilty only because he was in fact guilty of the offense charged. Again, defendant said yes.

Defendant cites the case of Blackledge v. Allison, 431 U.S. 63 (1977), in support of his claim that his guilty plea was not knowingly, voluntarily, and intelligently made. But unlike the “sketchy record” in Blackledge upon which the Court based its decision, the record here directly refutes defendant’s claim. See Lasiter v. Thomas, 89 F.3d 699, 702–03 (10th Cir. 1996) (discussing Blackledge and noting that in North Carolina courts at that time, plea bargaining was not well-established and very little record was made of guilty plea hearings). The Tenth Circuit “has interpreted Blackledge to permit summary disposition of habeas corpus petitions based on claims of unkept promises and misunderstanding when the court record refutes the claims.” Id. at 703. And an evidentiary hearing on the voluntariness of a plea is not required when a defendant’s statements during the plea colloquy contradict the defendant’s claims. Gaskey v. Hartley, 280 F. App’x 746, 748 (10th Cir. 2008) (citation omitted). Based on the above-cited portions of the petition to enter a guilty plea and the ...

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