United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
movant Kelly Patrick Riggs pled guilty to one count of
attempted enticement of a minor to engage in sexual activity,
in violation of 18 U.S.C. § 2422(b), and one count of
transfer of obscene material to a minor, in violation of 18
U.S.C. § 1470. (Cr. Doc. 89). The court sentenced him to
120 months imprisonment on each count, to run concurrently.
(Id.). Mr. Riggs moved, under 28 U.S.C. § 2255,
to vacate his sentence. (Doc. 1). After the government
responded (doc. 13), Mr. Riggs moved to amend his § 2255
motion. (Doc. 59). The court granted the motion to amend, and
Mr. Riggs filed an amended § 2255 motion and a motion
for appointment of counsel. (Docs. 63, 67). The Government
responded to the amended § 2255 motion and Mr. Riggs
replied. (Docs. 72, 75).
amended § 2255 motion, Mr. Riggs contends that (1) his
guilty plea was not intelligent, knowing, and voluntary; (2)
counsel was ineffective because he had a conflict of
interest; and (3) he is actually innocent. (Doc. 63). The
court WILL DENY Mr. Riggs' § 2255 motion because the
record confirms that Mr. Riggs' challenge to his guilty
plea is procedurally barred and procedurally defaulted; Mr.
Riggs waived the alleged conflict of interest; and Mr.
Riggs' freestanding claim of actual innocence is not
cognizable in a § 2255 motion. The court WILL DENY AS
MOOT Mr. Riggs' request for appointment of counsel.
2012, a grand jury charged Mr. Riggs with one count of
enticing a minor to engage in criminal activity in violation
of 18 U.S.C. § 2422(b) and one count of transfer of
obscene material to a minor in violation of 18 U.S.C. §
1470. (Cr. Doc. 6). The court appointed Jeffrey Bramer as his
defense attorney. (Cr. Doc. 3). Mr. Bramer, however, quickly
withdrew as counsel based on an undisclosed “ethical
issue.” (Cr. Doc. 18 at 2; Cr. Doc. Minute Entry, Oct.
the court appointed David Luker as Mr. Riggs' defense
attorney. (Cr. Doc. 20). While represented by Mr. Luker, Mr.
Riggs filed a pro se motion seeking to represent
himself. (Cr. Doc. 28). A magistrate judge held a hearing, at
which he allowed Mr. Luker to withdraw and appointed the
Federal Public Defender to represent Mr. Riggs. (Cr. Doc. 100
Case and Glennon Threatt entered appearances as Mr.
Riggs' public defenders. (Cr. Docs. 35, 36). While they
were representing him, Mr. Riggs filed a pro se
motion seeking subpoenas for various witnesses, including
seven alleged alibi witnesses and three character witnesses.
(Cr. Docs. 45, 105). After holding a hearing on the motion,
the magistrate judge issued all of the requested subpoenas.
(Cr. Docs. 46, 105).
Riggs next filed a pro se motion requesting that the
court hold a hearing on whether Mr. Threatt had a conflict of
interest. (Cr. Doc. 51). Mr. Riggs alleged that members of a
prison gang had threatened to harm or kill Mr. Threatt and
his family, and stated that he had also told Mr. Threatt
about “a confession to killing a co-conspirator and the
intent to kill witnesses of that event.” (Id.
at 2). Although that pro se motion itself did not
state who the alleged co-conspirator was, who made the
alleged confession, or what its relation to Mr. Riggs'
criminal case was, Mr. Riggs' current § 2255 motion
makes it apparent that Mr. Riggs was referring to another of
Mr. Threatt's clients, a man named Alvin Johnson, who Mr.
Riggs says confessed to killing another man named DeAndre
Washington. (See Doc. 63 at 6-8).
September 5, 2013, the magistrate judge held a hearing on Mr.
Riggs' allegation about Mr. Threatt's alleged
conflict of interest. (Cr. Doc. 109). The magistrate judge
indicated that Mr. Threatt “was aware of [the threat
against Mr. Threatt] and [he] has already discussed it with
the Federal Defender, Mr. Butler, and they reached the
conclusion that no further action would be taken on their
part at the present time . . . . And they also did make their
own independent inquiry as to whether or not there's a
conflict issue. And . . . Mr. Threatt . . . and Mr. Butler
did not believe there was a conflict.” (Id. at
7). Mr. Riggs then told the magistrate judge that he had
discussed the issue with Mr. Threatt several days earlier and
they had “determined that it was not going to be an
issue, ” but by then, he had already mailed the motion.
(Id.). After the hearing, the magistrate judge
entered an order stating that he was “convinced there
is no conflict in the representation of the defendant by
present counsel.” (Cr. Doc. Minute Entry, Sept. 5,
same hearing, Mr. Riggs stated that when he mailed the motion
requesting a hearing on Mr. Threatt's alleged conflict,
he also mailed two other pleadings, one of which was a notice
of alibi. (Doc. 109 at 3-5). The magistrate judge noted that
the court had not yet received those filings. (Id.
at 3-4). Mr. Riggs stated that, since mailing the notice of
alibi, he had spoken with Mr. Threatt and they had
“come to a point.” (Id. at 5). Neither
Mr. Riggs nor Mr. Threatt disclosed the content of their
discussion, but Mr. Riggs indicated that he was
“satisfied with the results of [that] conversation,
” and Mr. Threatt indicated that he was not planning to
file a notice of alibi. (Id. at 5-6).
Riggs requested to withdraw the two pleadings that he had
mailed. (Id. at 13-14). The magistrate judge stated
that he would review them before allowing Mr. Riggs to
withdraw them. (Id.). The record does not include an
order permitting withdrawal, nor does it contain the two
after the conflict hearing, Mr. Riggs entered a plea
agreement with the Government, in which he agreed to plead
guilty to both counts against him. (Cr. Doc. 55). The plea
agreement described the factual basis of the crime.
(Id. at 3-5). It stated that, on May 23, 2012, Mr.
Riggs responded to an internet advertisement and emailed an
undercover law enforcement officer whom he believed to be a
14 year old girl. (Id. at 2-3). Over the next few
days, he emailed and texted with the undercover officer,
sending her nude pictures of an adult man's body and
asking for nude pictures in return. (Id. at 3-4). He
eventually arranged to meet the purported 14 year old girl at
a bowling alley around 10:00 am on May 26, 2012, but when he
arrived there at 10:20 am, law enforcement officers arrested
him. (Id. at 4-5).
Riggs' change of plea hearing, Mr. Riggs stipulated that
the factual basis set forth in the plea agreement was
accurate. (Cr. Doc. 62 at 25-26). The court asked Mr. Riggs:
“Has anyone promised you anything or threatened you in
any way to encourage you to enter this plea of guilty?”
(Id. at 16). Mr. Riggs responded, “No.”
(Id.). The court also asked Mr. Riggs if he was
“satisfied with Mr. Threatt and the work that he has
done, ” to which Mr. Riggs responded,
“Yes.” (Id. at 24).
next month, Mr. Riggs filed a pro se motion to
withdraw his guilty plea and to replace his attorney. (Cr.
Doc. 57). In the motion, he stated that he had entered the
plea agreement under duress because (1) a gang had threatened
his family, and (2) Mr. Threatt had told him the only way to
get a reduction in his sentence was to plead guilty.
(Id. at 1-2). He explained that, on the day of the
prior conflict hearing, he had given a statement against Mr.
Threatt's other client, Alvin Johnson, because Mr.
Johnson had made a jailhouse confession to the murder of
DeAndre Washington and had threatened Mr. Threatt and Mr.
Threatt's family. (Id. at 2, 6, 8). According to
Mr. Riggs, after he notified Mr. Threatt of those matters,
Mr. Threatt told Mr. Johnson that Mr. Riggs “was a
problem to [Mr. Johnson's] case.” (Id. at
6). Mr. Riggs also alleged that Mr. Threatt had told a United
States marshal that “this was a conflict.”
magistrate judge held a hearing on the portion of the motion
seeking to discharge counsel. (Cr. Doc. 111). Expressing
concern about potentially breaching attorney-client privilege
and revealing defense strategy, the magistrate judge told Mr.
Riggs not to reveal any confidential communications between
his attorney and himself. (Id. at 7-8). But when the
magistrate judge asked Mr. Threatt if he opposed Mr.
Riggs' motion for a new attorney, Mr. Threatt said he did
not. (Id. at 6).
that hearing, the magistrate judge entered an order stating
that “the interests of justice warrant the release of
the Federal Defender and the appointment of new counsel. The
court notes that the decision in no way reflects on the
performance of counsel, but is indicative of the
defendant's narcissistic personality.” (Cr. Doc. 59
at 4). The magistrate judge appointed Brett Bloomston as Mr.
Riggs' fifth appointed attorney. (Cr. Doc. 60).
court then held a hearing on the motion to withdraw Mr.
Riggs' guilty plea. (Cr. Doc. 114). Mr. Riggs told the
court that after the first conflict hearing on September 5,
2013, at which the court had ruled that Mr. Threatt had no
conflict, Mr. Riggs met with a United States deputy marshal
about Mr. Johnson's statements. (Id. at 4-5). At
that time, Mr. Threatt told the marshal that because Mr.
Johnson was another of his clients, he could not represent
Mr. Riggs during the marshal's interview of Mr. Riggs.
(Id. at 5). The court asked if Mr. Riggs understood
that “the conflict that Mr. Threatt was referring to
had to do with your conversation with the marshal about Mr.
Johnson . . . [h]ad nothing to do about his continued
representation with you at trial or at your plea.”
(Id. at 6). Mr. Riggs stated that he understood the
court pointed out that Mr. Riggs' change of plea hearing
took place after the meeting with the United States marshal
about Mr. Johnson, but Mr. Riggs had not mentioned the
conflict at that time, despite testifying under oath that he
was satisfied with Mr. Threatt's representation. (Cr.
Doc. 114 at 6-8). And the court asked Mr. Riggs about his
testimony that he had not been threatened into entering the
plea agreement. (Id. at 11). Mr. Riggs stated that
he had lied to protect his family. (Id.).
Government called Mr. Threatt to testify at the hearing on
Mr. Riggs' motion to withdraw. (Cr. Doc. 114 at 37). Mr.
Threatt testified that, at Mr. Riggs' meeting with the
United States deputy marshal on September 5, he had told Mr.
Riggs that the interview should take place “outside
[his] presence because [he] believed that [Mr. Riggs] was
going to give information about a client of [his] at the
time.” (Id. at 39-40). He testified that Mr.
Riggs never told him he was entering the plea agreement
because of fear for himself and his family. (Id. at
43). And he testified that he and Mr. Riggs had, on at least
three occasions, watched a videotaped confession in which Mr.