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Oglesby v. United States

United States District Court, M.D. Florida, Tampa Division

December 4, 2019



          JAMES D. WHITTEMORE United States District Judge.

         BEFORE THE COURT is Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (cv Dkt. 1). The motion is DENIED.

         Procedural Background

         Petitioner and ten others were charged in a ten count Second Superseding Indictment with conspiracy and controlled substance violations involving heroin, fentanyl, and fentanyl analogues. He pleaded guilty pursuant to a Plea Agreement to conspiracy to distribute controlled substances resulting in death and serious bodily injury (Count One) (cr Dkts. 222, 244). In exchange, Counts Four, Five and Six were dismissed (cr Dkt. 222 at ¶ 5). On December 3, 2018, he was sentenced to 230 months, followed by 5 years of supervised release (cr Dkt. 400). His appeal was dismissed by the Eleventh Circuit Court of Appeals (cr Dkt. 502). In his timely § 2255 motion, Petitioner raises five claims, one alleging prosecutorial misconduct, and four alleging ineffective assistance of counsel.

         Waiver by Guilty Plea

         During his Rule 11 change of plea colloquy, Petitioner confirmed his understanding “that if you have any objections as to how the charges were brought against you or as to how the evidence was gathered in your case, [he] was waiving any objections to those matters by entering a plea of guilt.” (cr Dkt. 493 at 39:12-18). The Magistrate Judge was correct. By pleading guilty, he waived all non-jurisdictional challenges to his conviction, including his claim of prosecutorial misconduct and his claims of pre-plea ineffective assistance of counsel that do not relate to his decision to plead guilty. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), cert. denied, 456 U.S. 992 (1982) (defendant who enters guilty plea waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained). Accordingly, his claim that there was prosecutorial misconduct (Ground One), and his claims that his attorney was ineffective in failing to file pre-trial motions (Ground Two), challenge the sufficiency of the Second Superseding Indictment (Ground Three), and challenge the indictment and admissibility of co-conspirator statements (Ground Four), are all subsumed within and waived by his decision to plead guilty. His contention that his attorney should have challenged cause of death before advising him to plead guilty (Ground Five) is not waived but is without merit.

         Three Core Concerns for a Knowing and Voluntary Plea

         Petitioner's Rule 11 change of plea colloquy demonstrates that the three core concerns of a knowing and voluntary guilty plea are met (cr Dkt. 493). His guilty plea was free from coercion, he understood the nature of the charge in Count One, and he understood the consequences of his guilty plea. United States v. Gandy, 710 F.3d 1234, 1240 (11th Cir. 2013). The Magistrate Judge found him competent, and that his guilty plea was “knowingly, voluntarily, and intelligently” entered (cr Dkt. 493 at 54:5-6). The proffered evidence supporting his guilty plea was compelling, and undisputed.[1]

         Ground One: Prosecutorial Misconduct

         Petitioner contends that “[t]he prosecuting attorney engaged in ‘prosecutorial misconduct' by having movant plead to a fraudulent duplicitous indictment.” (cv Dkt. 1-1 at 1). To prevail on a prosecutorial misconduct claim, he must show that the prosecutor's conduct was improper and that it was prejudicial to his substantial rights. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).

         By pleading guilty, Petitioner waived this non-jurisdictional claim. Moreover, this claim is procedurally defaulted because he failed to raise it on appeal. Bousley v. United States, 523 U.S. 614, 622-24 (1998). “Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). A defendant can avoid this procedural bar by establishing cause for not raising the claim on appeal and actual prejudice resulting from the alleged error. Bousley, 523 U.S. at 622. Or, he may proceed, despite his failure to show cause for the procedural default, if a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Lynn v. United States, 365 F.3d 1225, 1234-35 (11th Cir. 2004) (quoting Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994)).

         Petitioner makes no attempt to show cause for his procedural default. Indeed, in his Plea Agreement, he waived the right to appeal, except in circumstances inapplicable here. Nor has he shown that a miscarriage of justice occurred, or that he is actually innocent. See McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). There is no excuse for his procedural default of Ground One.

         Alternatively, assuming a cognizable claim in this § 2255 proceeding, this claim has no merit. Essentially, Petitioner accuses the prosecutor of compelling him to plead guilty to a duplicitous indictment. Specifically, Petitioner argues that Count One “charges two or more separate and distinct offenses . . . .” (cv Dkt. 1-1 at 1). But Count One was not duplicitous. Count One charged a single offense, conspiracy to distribute and possess with intent to distribute a controlled substance, the use of which resulted in death and serious bodily injury. As Petitioner acknowledges, conspiracy is an offense separate and distinct from the crime which is the object of the conspiracy. United States v. Nims, 524 F.2d 123, 126-27 (5th Cir. 1975). However, an indictment charging a conspiracy is not duplicitous where it “properly charge[s] a single illicit” agreement to possess and distribute a controlled substance. United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982). Indeed, contrary to Petitioner's argument, the object of an § 846 conspiracy may be alleged without charging a substantive offense, or by alleging several objects of the conspiracy. Braverman v. United States, 317 U.S. 49, 54 (1942) (“The allegations in a single count of conspiracy to commit several crimes is not duplicitous, for ‘[t] he conspiracy is the crime, and that is one, however diverse its objects.'”) (citation omitted). Ground One is therefore due to be denied.

         Ground Two: Ineffective ...

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