United States District Court, N.D. Alabama, Northwestern Division
SHARON LOVELACE BLACKBURN, District Judge.
This case is before the court on petitioner Jerry Smith's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255. (Doc. 1.) Petitioner sought an evidentiary hearing on his petition, (Docs. 9 and 17), and the court granted petitioner a hearing on the sole issue of whether petitioner's counsel was ineffective for failing to appeal petitioner's case within ten days of sentencing, as petitioner contends he instructed counsel to do. Because petitioner's former counsel denied that petitioner requested an appeal, the court held an evidentiary hearing on November 21, 2014 to resolve credibility issues on this claim. ( See Doc. 19 at 1 n. 2.) Upon review of the record, the submissions of the parties, the relevant law, and the evidentiary hearing, the court finds that petitioner's claim is due to be denied. The court finds that petitioner's remaining claims, for which the court did not hold an evidentiary hearing, are also due to be denied.
Petitioner was indicted on July 27, 2011 on six counts of knowingly transporting C.A., an individual who had not attained the age of 18 years, in interstate commerce, with the intent of engaging in sexual activity for which any person can be charged with a criminal offense, in violation of 18 U.S.C. § 2423(a). (Doc. 1 in Case No. 3:11-cr-283-SLB-HGD.)
Attorney Robert Tuten was originally appointed to represent petitioner, but the court granted Tuten's Motion to Withdraw as Counsel after petitioner retained attorney Casey Lott. On October 5, 2011, petitioner, with Lott as counsel, entered into a plea agreement with the government, in which he pled guilty to Counts Two, Three, and Four. (Doc. 21 at 1 in Case No. 3:11-cr-283-SLB-HGD.) The government agreed to dismiss Counts One, Five, and Six in exchange for petitioner's plea. ( Id. ) Petitioner agreed to the following factual basis for the plea:
The victim in this case is C.P.A., DOB XX/XX/1995, residing in Red Bay, Alabama, which is in Franklin County. C.P.A. has known Jerry Smith her entire life, since he was friends with her birth father. Smith lives less than a mile from C.P.A.'s house. C.P.A. has dated his eighteen year old son in the past. Smith was employed as a long haul truck driver at the time of these crimes. Smith's DOB is XX/XX/1970.
In December 2010, C.P.A. accompanied Smith on a work-related trip to Texas. Smith asked C.P.A.'s mother if she objected. C.P.A.'s mother did not object since Smith promised her he would treat C.P.A. as he would his own child and that they could "trust him." The trip to Texas was three days and according to C.P.A. was uneventful. C.P.A. and Smith both slept in the sleeper compartment of the truck but under separate blankets.
Shortly after this trip, Smith and C.P.A. began texting each other. The texts became very frequent and were sexual in nature. C.P.A. believed the texts were sent by Smith in an attempt to determine whether or not C.P.A. would have sex with him.
On January 17, 2011, C.P.A. accompanied Smith on a trip to Indiana. On the way there, C.P.A. asked Smith to stop at a rest stop outside of Nashville, Tennessee, so that she could use the rest room. It was at this rest stop that they had sex in his truck. After the trip resumed, they stopped at another rest stop in Tennessee, just before the Kentucky state line. They had sex again during this stop. They did not stop in Kentucky but stopped in Indiana, just prior to arrival at their destination in Indianapolis. They had sex for a third time at this location. After driving back to Alabama, Smith dropped C.P.A. off at her home at midnight. Smith did not buy condoms during this trip because he already had some in the truck, however, he did use condoms during the above-described sex acts.
The age of consent in Indiana is 16. The age of consent in Tennessee is 18.
(Doc. 21 at 2-4 in Case No. 3:11-cr-283-SLB-HGD.)
As part of the plea agreement, petitioner agreed to waive the right to appeal, which petitioner acknowledged both Lott and the court explained to him. ( See Doc. 30 at 8-9 in Case No. 3:11-cr-283-SLB-HGD.) The waiver read as follows:
IV. WAIVER OF RIGHT TO APPEAL AND POST-CONVICTION RELIEF
In consideration of the recommended disposition of this case, I, Jerry Smith, hereby waive and give up my right to appeal my conviction and/or sentence in this case, as well as any fines, restitution, and forfeiture orders, the court might impose. Further, I waive and give up the right to challenge my conviction and/or sentence, any fines, restitution, forfeiture orders imposed or the manner in which my conviction and/or sentence, any fines, restitution, and forfeiture orders were determined in any post-conviction proceeding, including, but not limited to, a motion brought under 28 U.S.C. § 2255.
The defendant reserves the right to contest in an appeal or post-conviction proceeding either or both of the following:
(a) Any sentence imposed in excess of the applicable statutory maximum sentence(s); and
(b) Any sentence imposed in excess of the guideline sentencing range determined by the court at the time sentence is imposed.
The defendant acknowledges that before giving up these rights, the defendant discussed the Federal Sentencing Guidelines and their application to the defendant's case with the defendant's attorney, who explained them to the defendant's satisfaction. The defendant further acknowledges and understands that the government retains its right to appeal where authorized by statute.
I, Jerry Smith, hereby place my signature on the line directly below to signify that I fully understand the foregoing paragraphs, and that I am knowingly and voluntarily entering into this waiver.
(Doc. 21 at 6-7 in Case No. 3:11-cr-283-SLB-HGD.) Petitioner was sentenced to 120 months imprisonment. (Doc. 31 at 37 in Case No. 3:11-cr-283-SLB-HGD.) No appeal followed.
Petitioner filed the instant § 2255 Motion on February 7, 2013 and submitted an Amended Memorandum supporting the Motion on January 1, 2014, alleging that counsel was ineffective for three reasons: (1) for failing to appeal petitioner's case after being requested to do so by petitioner; (2) for coercing petitioner into pleading guilty to a crime he did not commit; and (3) for refusing to seek a withdrawal of petitioner's guilty plea. (Doc. 6 at 2-4). Petitioner also argued that the victim's recantation in an affidavit, attached as an exhibit to petitioner's Amended Memorandum, proved that the ...