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United States v. Smith

United States District Court, E.D. Michigan, Southern Division

March 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILNEITA SMITH, Defendant.

         ORDER DENYING PETITIONER'S MOTION TO VACATE OR SET ASIDE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. §2255 BASED UPON A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL RE FAILURE TO TIMELY COMMUNICATE TO DEFENDANT A MORE LENIENT SECOND PLEA OFFER

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         BACKGROUND

         Defendant Wilneita Smith filed a motion pursuant to 28 U.S.C. §2255, to inter alia, set aside her conviction and sentence because of ineffective assistance of counsel by her retained attorney S. Allen Early, to wit, failure to communicate a second, more lenient, government Rulel 1 plea offer. The Court has appointed Criminal Justice Act panel attorney Michael Dezsi to represent Defendant on this issue.

         On January 19, 2017, the Court held an evidentiary hearing that included testimony from Assistant United States Attorney Tare Wigod, Defendant's former attorney S. Allen Early, Angela Brown (Mr. Early's former paralegal) and Defendant Wilneita Smith.

         The initial prosecution Rule 11 plea offer created a guideline sentencing range of 70-87 months. All parties agree that Defendant rejected this offer. The parties also agree that the Government had orally presented a second, more favorable plea offer a few days before the trial.

         The critical issue before the Court is whether Attorney Early had informed Defendant Smith that second government Rule 11 plea offer. Defendant Smith asserts that had she known of the second Rule 11, she would have accepted it. Early claims that he informed her of that plea offer and she rejected it. Smith further alleges that Attorney Early had intentionally not informed her of that plea offer in order to receive a larger legal fee by proceeding to trial.

         PERTINENT TESTIMONY

         1. Defendant Wilneita Smith

         Defendant Smith testified that it was only after trial that Mr. Early told her, that two days before trial, the Government had offered her a more lenient Rule 11 agreement containing a 33-41 month guideline sentencing range. Defendant further testified that when Early mentioned that 33-41 month plea offer, post-trial, she asked him why he hadn't informed her about it before trial, and Early responded that he thought he had.

         Defendant Smith also testified that while incarcerated post-trial she asked her daughter to contact Angela Brown, who had been Mr. Early's legal assistant at the time of her trial, to seek information about that lower government plea offer. Defendant testified that her daughter met with Angela Brown and secured an affidavit stating that Mr. Early intentionally did not inform Defendant of that second plea offer because he wanted to receive a larger legal fee ($25, 000) by taking her case to trial.

         Defendant Smith testified that she was willing to plead to the four drug counts in the indictment, but not the conspiracy count, which had been added to the indictment on October 29, 2013.

         Defendant Smith denied that she knowingly carried drugs from the house on Log Cabin Street to the SUV. She and co-defendant Andre Hurston had traveled to that house that contained the proceeds from an armed robbery of a pharmaceutical delivery truck. Defendant said that she didn't know what was in the bags she helped Mr. Hurston carry from the house to the SUV, or what Hurston would do with the contents.

         2. ...


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