United States District Court, E.D. Michigan, Southern Division
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
D. BORMAN UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
Defendant Wilneita Smith
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.
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
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.
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.