United States District Court, E.D. Michigan, Northern Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND RESPONDENT'S MOTION TO DISMISS (Docs. 28, 41)
PATRICIA T. MORRIS, Magistrate Judge.
For the reasons set forth below, IT IS RECOMMENDED that Petitioner's motion to vacate (Doc. 28) be DENIED and Respondent's motion to dismiss (Doc. 41) be GRANTED.
On March 13, 2013, Petitioner John Hart, an Indian, was indicted on four counts of aggravated sexual abuse of minors between the ages of 12 and 16 years of age on the Isabella Reservation in violation of 18 U.S.C. §§ 2241(c), 1151, and 1153. (Doc. 10.) Petitioner was detained pending trial. (Doc. 11.) On June 4, 2013, Petitioner's counsel filed a motion for discovery, citing a need for assistance in locating and producing witnesses, or alternatively, for dismissal of the case due to delay in prosecution. (Doc. 18.) On August 8, 2013, the court granted in part and denied in part Petitioner's motion, requiring the government to produce all Brady material, but denying the motion in all other respects. (Doc. 21.)
On October 25, 2013, Petitioner and the government entered into a plea agreement, Petitioner pleaded guilty on January 30, 2014, and judgment entered on February 4, 2014. (Docs. 26, 27.) Pursuant to the plea agreement, Petitioner pleaded guilty to Count 1 of the indictment, and the remaining counts were dismissed. (Doc. 26.) Petitioner was sentenced to a term of 151 months. (Doc. 27.)
The plea agreement noted that there were no sentencing guideline disputes and that the applicable guideline range was 151-188 months. (Doc. 26 at ID 86.) The plea agreement also provided that the sentence of imprisonment was not to exceed the bottom of the applicable guideline range. (Doc. 26 at ID 88.) Petitioner could only withdraw from the agreement or appeal his conviction or sentence if the sentence imposed exceeded the maximum allowed by the agreement, i.e., the bottom of the applicable guideline range. (Doc. 26 at ID 90-91.) The sentence imposed, 151 months, did not exceed the maximum allowed by the agreement.
In addition, the plea agreement contained a waiver of Petitioner's right to collaterally attack his conviction or sentence in any post-conviction proceeding, including, but not limited to, any proceeding under 28 U.S.C. §2255. (Doc. 26 at ID 90-91.)
Petitioner's §2255 motion to vacate his sentence asserts that his trial counsel was ineffective because he: (1) failed to conduct any pretrial investigation; (2) failed to interview defense witnesses; (3) failed to inform the defendant of ongoing proceedings; (4) had a complete lack of communication; (5) failed to give defendant copies of discovery, PSI report, etc.; (6) failed, despite numerous requests, to file suppression motions; and (7) pressured defendant to submit to polygraph examination. (Doc. 28 at ID 117-18.) Petitioner also raises, as ground two, violation of his Sixth Amendment right to a speedy trial but then appears to couch this under ineffective assistance when he argues that his counsel failed, despite numerous requests, to press for speedy trial issues and failed to get his permission before seeking adjournment. (Doc. 28 at ID 120-21.)
Although docketed as a Notice of Appeal, Petitioner appears to have filed a letter in support of his motion to vacate sentence. (Doc. 33.) Petitioner addresses the "Appelant [sic] Court" and states:
I am filing this appeal due to misrepresentation by my [defense counsel]. I paid him $10, 000 to defend me. I believe he did not defend me to the best of his ability. He did not file motions that I asked him to file, he would not visit me when I asked him too, he only visited me 3 or 4 times the whole time I was waiting to be sentenced, he talked me into taking the lie detector test saying if I passed it I would be released. During the test I was only asked a few questioned, the guy told me I failed and told the officer to take me back. I don't feel that was enough questions to determine if I was telling the truth or lieing. He asked if the light in the room was on, I said yes and he said I lied. [Defense counsel] also pretty much pressured me into taking the plea. He kept telling me that if I lose the trial I am facing 30 to life and the judge that would be at my hearing has been giving everyone the max. I was scared that if I lost the trial I would be sitting in prison for the rest of life for something I did not do, because of things [defense counsel] was telling me, so I took the plea.
[M.H.] pressed charges against me in 2013, claiming that I raped her when she was around 15 or 16, either in 1995 or 1996. She couldn't even say exactly when this supposely happened. I swear I never raped her or anyone else for the matter. I would not even think of doing such a thing. I don't have any idea why she would even say such a horrible thing. I would like to let the court know that when she was 13 years old she started smoking weed and drinking which eventually lead to her doing other drugs such as cocaine and crack. When she was 15 or 16 she was selling herself to get drugs. There is several people that can testify to that. She has been the prison for robbing a couple in Grand Rapids, Michigan, while incarcerated her and some other ladies came up with this scam. They claimed to be raped by a guard. They won the case. After she was released she told family members and other people that she lied about being raped and that she agreed to do it because they needed so many to file the claim. She did it for the money. If she lied about that she would lie about anything. I told [defense counsel] about this, that this would discredit her, but he did not call anyone to check into it.
They also were using an accusation that I molested my step daughter which was also I lie. My wife was mad at me and being dispiteful called police and said that. I called in tribal police and child welfare to investigate this. She was taken to the hospital to be checked and the Dr. there said she has not been molested. It was dropped. [Defense counsel] also know this but did nothing to get this out of evidence to be used against me. [Defense counsel] never asked for any witnesses on my behalf. I lost my 6 month old son because of this, this has ruined my life and I have done no wrong.
This is my first time ever having to go through something like that. I did not know I could fire him or ask for someone else if I thought I was not being represented right. I trusted him to defend me to the best of his ability but apparently he only wanted the money. He said he used up the $10, 000 I paid him and that I still owed him $2, 000.00 for hardly doing anything to defend me.
I would like to withdraw my plea and bring this back to court. I feel my rights have been violated. I would appreciate it if I was given the opportunity to prove my innocence. Be better represented in the court. To have this looked into because she lied and people know she has. There is no evidence that this ever took place, it is ...