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United States v. Tellis

United States District Court, M.D. Alabama, Northern Division

March 6, 2018

UNITED STATES OF AMERICA
v.
GIRRARD DEON TELLIS

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.

         Defendant Girrard Deon Tellis (“Tellis”) is charged in a one count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). (Doc. # 1). On September 13, 2017, the court accepted Tellis' guilty plea and adjudged him guilty of the single count in the indictment. On February 15, 2018, Tellis filed a motion to withdraw his guilty plea (doc. # 42) contending that his attorney rendered ineffective assistance of counsel to him prior to his guilty plea. Specifically, Tellis asserts that his counsel affirmatively advised Tellis that he would not be subject to an enhanced sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. §924(e)(1), because his prior convictions did not provide the necessary three predicate convictions. The government opposes the defendant's motion, and the court heard oral argument on the motion on March 5, 2018.[1] Upon careful consideration of the motions, briefs of the parties and oral argument, the court concludes that the motion to withdraw the guilty plea should be GRANTED.

         On June 28, 2017, the United States filed a one count indictment against Tellis that accuses him of having been convicted of felony offenses, . . . to wit:

• On or about March 25, 1999, first-degree possession of marijuana, in the Circuit Court of Montgomery County, Alabama, case number CC-97-002372.00;
• On or about January 9, 2006, unlawful distribution of a controlled substance, in the Circuit Court of Montgomery County, case number CC-2005-1209.0;
• On or about June 24, 2011, first-degree possession of marijuana and possession of a controlled substance, in the Circuit Court of Montgomery County, case number CC-2010-000746.00,
did knowingly and intentionally possess in and affecting interstate commerce a firearm, to wit, a Smith & Wesson, model SD40 VE, .40 caliber semiautomatic pistol, a better description of which is unknown to the grand jury, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e)(1).

(Doc. # 1).

         On September 13, 2017, the undersigned conducted a change of plea proceeding pursuant to Fed.R.Crim.P. 11. During the plea colloquy, the court asked Tellis pertinent questions related to his desire to enter a guilty plea.

THE COURT: Mr. Tellis, have you received a copy of the indictment returned against you in this case?
THE DEFENDANT: Yes, sir.
THE COURT: And do you understand the charge against you?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Tellis, are you fully satisfied with Mr. Ganter's representation of you in this case?
MR. GANTER: Your Honor, I'll go ahead and say that I am filling in for Nate Wenstrup, another office - attorney in our office. He has primarily consulted with Mr. Tellis, although I did do - handle the detention hearing. Primarily it's been Mr. Wenstrup who's consulted with Mr. Tellis.
THE COURT: All right. Mr. Tellis, are you fully satisfied with Mr. Wenstrup's representation and the other lawyer's representation of you?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Tellis, has anyone made any promise to you to get you to plead ...

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