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Perry v. United States

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

May 1, 2018

Latoya Perry, Movant,
v.
United States of America, Respondent.

          ORDER DENYING AS MOOT MOVANT'S MOTION TO CORRECT AND/OR VACATE SENTENCE UNDER 28 U.S.C. § 2255 [84]; GRANTING MOVANT'S MOTION TO AMEND/CORRECT MOTION TO VACATE SENTENCE [87]; DENYING AS MOOT MOVANT'S AMENDED MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 [88]; GRANTING MOVANT'S MOTION FOR LEAVE TO FILE SECOND AMENDED MOTION TO VACATE SENTENCE [104]; DENYING MOVANT'S SECOND AMENDED MOTION TO VACATE SENTENCE [104-1]; AND DENYING CERTIFICATE OF APPEALABILITY

          Arthur J. Tarnow Dated Senior United States District Judge

         On March 13, 2012, Movant Latoya Perry pleaded guilty, pursuant to a Rule 11 Plea Agreement [Dkt. 27] to one count of Distribution of a Controlled Substance, in violation of 21 U.S.C. § 841(a). The Honorable Julian A. Cook sentenced Ms. Perry to 188 months' (15.67 years') imprisonment pursuant to the Career Offender provisions, U.S.S.G. § 4B1.1, and Judgment [67] was entered on March 7, 2014.

         Ms. Perry's Motion to Correct and/or Vacate Sentence under 28 U.S.C. § 2255 [84] was filed on June 8, 2016. She also filed a Motion to Amend/Correct the Motion to Vacate [87] and an Amended Motion to Vacate [88] on June 24, 2016.

         Most recently, on August 3, 2017, Movant filed a Motion for Leave to File a Second Amended Motion to Vacate [104].

         In the Second Amended Motion to Vacate [104-1], Ms. Perry sets forth claims of ineffective assistance of counsel. She argues that her first two attorneys were ineffective because they incorrectly concluded that Ms. Perry was a career offender based upon her prior conviction for escape in Indiana, and because they failed to inform the Court of Ms. Perry's low IQ and mental health history at sentencing.

         For the reasons discussed below, the original Motion to Correct and/or Vacate Sentence under 28 U.S.C. § 2255 [84] and Amended Motion to Vacate [88] are DENIED AS MOOT. The Motion to Amend/Correct Motion to Vacate [87] and Motion for Leave to file Second Amended Motion to Vacate [104] are GRANTED. The Second Amended Motion to Vacate [104-1] is DENIED. Ms. Perry is denied a certificate of appealability.

         Factual and Procedural Background

         On November 1, 2011, Ms. Perry was charged via information [17] with one count of distributing crack cocaine, in violation of 21 U.S.C. § 841(a). A superseding information [25] that added two additional crack distribution counts was filed on March 8, 2012. Several days later, Ms. Perry executed a Guilty Plea Questionnaire [26] and Plea Agreement [27], both of which indicated that the conviction carried a minimum sentence of five years' imprisonment. In the Questionnaire, Ms. Perry indicated that: she could read, write, and understand English; she fully understood the nature of the charges against her; and she understood the questions asked of her in the Questionnaire form. The Plea Agreement contained the following appeal waiver provision:

Defendant waives any right she may have to appeal her conviction. If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant also waives any right she may have to appeal her sentence. If the sentence imposed is within the guideline range determined by Paragraph 2B the government agrees not to appeal the sentence, but retains its right to appeal any sentence below that range.

(Dkt. 27 at 5).

         During the plea hearing on March 13, 2012, Ms. Perry stated that she sold 31.75 grams of crack cocaine to a woman in exchange for $1, 350. (Dkt. 75, Plea Hr'g Tr. at 15:20-21). She acknowledged that she had the right to plead not guilty. Id. at 6:23-25. Counsel for the Government informed the Court of the 40-year maximum sentence. Ms. Perry said that her sentencing exposure did not change her decision to plead guilty. Id. at 19:3-5. Judge Cook stated that he was satisfied that Ms. Perry had established a factual basis for the offense and that in his opinion, Ms. Perry's offer of guilt was voluntarily and intelligently made. He found no evidence of any mitigating factors that would have adversely affected Ms. Perry's ability to fully understand the nature and consequences of her admission of guilt. Id. at 24:16-24.

         Due to a breakdown in the attorney-client relationship, Ms. Perry's first attorney filed a Motion for Withdrawal of Attorney [34] on July 30, 2012. Judge Cook granted the motion, and a second attorney was appointed to represent Ms. Perry on September 4, 2012 [39].

         Through her second attorney, Ms. Perry filed a Motion to Withdraw Plea of Guilty [43] on January 14, 2013. The basis for this motion was that Ms. Perry's former lawyer incorrectly stipulated that Ms. Perry's conviction for escape qualified her as a career offender under the Sentencing Guidelines. During the hearing on the motion, which took place on March 28, 2013, Ms. Perry withdrew the motion to withdraw. Judge Cook confirmed that Ms. Perry had not been pressured to withdraw her motion and that she did so freely and voluntarily. (Dkt. 72, Mot. Hr'g Tr. at 5:5-10).

         Ms. Perry moved ex parte for Appointment of Psychiatric Forensic Examiner [51-1] on May 2, 2013. A psychologist, Dr. Jeffrey Wendt, examined Ms. Perry at the Midland County Jail on May 30, 2013. After administering psychological testing and conducting a clinical interview, Dr. Wendt estimated that Ms. Perry functioned in the average range of intelligence. He opined that Ms. Perry had exhibited symptoms of mental illness throughout her life, but had only recently been diagnosed and treated.

         The Government considered Dr. Wendt's methodology and conclusions to be suspect, and moved for a Psychological Examination and Report [54] from a Bureau of Prisons (“BOP”) psychologist on July 9, 2013. After Judge Cook granted the motion, Ms. Perry underwent a 45-day examination by Dr. Lesli Johnson, a forensic psychologist, at a BOP facility in Los Angeles, California. Dr. Johnson found that Ms. Perry was not “experiencing any major mood disturbances, such as a major depressive disorder, mania, cognitive disturbances or impairment in concentration or memory.” (Dkt. 77 at 16). She also found no evidence that Plaintiff suffered from any other type of mental illness.

         At Ms. Perry's sentencing hearing on March 7, 2014, Dr. Wendt opined that Ms. Perry suffered from posttraumatic stress disorder (“PTSD”) and bipolar disorder. Judge Cook rejected Dr. Wendt's conclusions, and, after reviewing the 18 U.S.C. § 3553 factors and the pre-sentence report, sentenced Ms. Perry to 188 months' (15.67 years) imprisonment.

         Notwithstanding the appeal waiver provision in the plea agreement, Ms. Perry filed a Notice of Appeal [65] on March 14, 2014. Several weeks later, Ms. Perry's second lawyer withdrew as counsel of record.

         The Sixth Circuit granted the Government's Motion to Dismiss on September 11, 2015 [83]. Ms. Perry filed her first Motion to Vacate [84] on June 8, 2016. The ...


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