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Riggs v. United States

United States District Court, N.D. Alabama, Southern Division

May 2, 2018




         The 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).[1] 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).

         In his 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.

         I. BACKGROUND

         In 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. 9, 2012).

         Next, 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 at 16-17).

         Allison 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).

         Mr. 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).

         On 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, 2013).

         At the 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).

         Mr. 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 pleadings.

         The day 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).

         At Mr. 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).

         The 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.” (Id.).

         The 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).

         After 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).

         The 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 difference. (Id.).

         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.).

         The 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. ...

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