United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE UNDER 28 U.S.C. § 2255 (Doc. 96) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a case under 28 U.S.C. § 2255. Petitioner Tyrone Richard Watkins (Petitioner), proceeding pro se, plead guilty under a Rule 11 agreement to five counts of bank robbery and one count of using a firearm during and in relation to a crime of violence. Petitioner filed a direct appeal, which was dismissed because of the waiver of appeal in his plea agreement. Petitioner then filed a motion under § 2255, claiming ineffective assistance of counsel, breach of the plea agreement, and that his sentence is procedurally unreasonable. The Court dismissed the petition as time barred. (Doc. 36). Petitioner then filed a motion under Fed.R.Civ.P. 60(b)(1). (Doc. 37). The Court granted the motion, finding Petitioner was entitled to equitable tolling and directed the government to file a substantive response to the § 2255 petition. (Doc. 40). The government filed a response (Doc. 41) and Petitioner filed an amended memorandum in support of the petition. (Doc. 42). The matter is now ready for decision. For the reasons that follow, the motion is DENIED.
The background is described in the Court's prior order as follows:
Petitioner robbed five separate banks between July 10 and August 20, 2010. During each robbery, Petitioner displayed a firearm and threatened bank employees. Petitioner was charged in a 12 count indictment, which included five counts of bank robbery, five counts of using and carrying a firearm during a crime of violence, one count of felon in possession of a firearm, and one count of possession of a controlled substance.
On May 2, 2011, Petitioner plead guilty to five counts of bank robbery and one firearm count. As part of the plea agreement, the parties calculated Petitioner's guidelines range at 108 to 135 months plus 84 months consecutive, for a range of 192-219 months. However, because Petitioner was facing the possibility of 107 years to life if he had been found guilty as charged, the parties stipulated to a 240 month sentence. The probation department later determined, due to an adjustment in Petitioner's criminal history category, that Petitioner's guidelines range was 97 to 121 months, plus 84 months consecutive, for a range of 181-205 months.
On October 31, 2011, the Court sentenced Petitioner to 240 months imprisonment. Petitioner appealed, contending he did not adequately understand the appellate-waiver provision in the plea agreement. The government moved to dismiss based on the appellate-waiver provision.. The Court of Appeals for the Sixth Circuit dismissed the appeal....
(Doc. 36 at p. 2).
Notably, the appeal waiver provision in the Rule 11 agreement states:
Defendant waives any right he may have to appeal his conviction or his sentence if the Court adopts the parties' proposed upward variance and sentences the defendant to a term of 240 months. If the sentence imposed is 240 months, the government agrees not to appeal the sentence. If the sentence imposed is higher than 240 months, the defendant retains the right to appeal his sentence. If the sentence imposed it less than 240 months, the government retains the right to appeal the sentence.
In dismissing Petitioner's appeal, the Sixth Circuit, after concluding that the plea was knowing and voluntary, explained in part:
... the district court specifically discussed the appellate-waiver provision, making clear that Watkins could only appeal his sentence if it ...