United States District Court, E.D. Michigan, Southern Division
ORDER DENYING AS MOOT MOVANT'S MOTION TO CORRECT
AND/OR VACATE SENTENCE UNDER 28 U.S.C.
§ 2255 ; GRANTING MOVANT'S MOTION TO
AMEND/CORRECT MOTION TO VACATE SENTENCE ; DENYING
AS MOOT MOVANT'S AMENDED MOTION TO
VACATE SENTENCE UNDER 28 U.S.C. § 2255
; GRANTING MOVANT'S MOTION FOR LEAVE TO FILE
SECOND AMENDED MOTION TO VACATE SENTENCE
; DENYING MOVANT'S SECOND AMENDED
MOTION TO VACATE SENTENCE [104-1]; AND DENYING
CERTIFICATE OF APPEALABILITY
J. Tarnow Dated Senior United States District Judge
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  was entered on March 7, 2014.
Perry's Motion to Correct and/or Vacate Sentence under 28
U.S.C. § 2255  was filed on June 8, 2016. She also
filed a Motion to Amend/Correct the Motion to Vacate  and
an Amended Motion to Vacate  on June 24, 2016.
recently, on August 3, 2017, Movant filed a Motion for Leave
to File a Second Amended Motion to Vacate .
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.
reasons discussed below, the original Motion to Correct
and/or Vacate Sentence under 28 U.S.C. § 2255  and
Amended Motion to Vacate  are DENIED AS
MOOT. The Motion to Amend/Correct Motion to Vacate
 and Motion for Leave to file Second Amended Motion to
Vacate  are GRANTED. The Second Amended
Motion to Vacate [104-1] is DENIED. Ms.
Perry is denied a certificate of appealability.
and Procedural Background
November 1, 2011, Ms. Perry was charged via information 
with one count of distributing crack cocaine, in violation of
21 U.S.C. § 841(a). A superseding information  that
added two additional crack distribution counts was filed on
March 8, 2012. Several days later, Ms. Perry executed a
Guilty Plea Questionnaire  and Plea Agreement , 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
(Dkt. 27 at 5).
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.
a breakdown in the attorney-client relationship, Ms.
Perry's first attorney filed a Motion for Withdrawal of
Attorney  on July 30, 2012. Judge Cook granted the
motion, and a second attorney was appointed to represent Ms.
Perry on September 4, 2012 .
her second attorney, Ms. Perry filed a Motion to Withdraw
Plea of Guilty  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).
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.
Government considered Dr. Wendt's methodology and
conclusions to be suspect, and moved for a Psychological
Examination and Report  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
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.
the appeal waiver provision in the plea agreement, Ms. Perry
filed a Notice of Appeal  on March 14, 2014. Several
weeks later, Ms. Perry's second lawyer withdrew as
counsel of record.
Sixth Circuit granted the Government's Motion to Dismiss
on September 11, 2015 . Ms. Perry filed her first Motion
to Vacate  on June 8, 2016. The ...