The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On March 17, 2006, Petitioner, William L. Whitefield, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (#1) with an attached affidavit and Memorandum of Law. In his Motion, Petitioner claimed that the Government breached the plea agreement and his counsel provided ineffective assistance. Both of these claims are based upon Petitioner's assertion that two counts which were dismissed based upon the plea agreement were improperly used to enhance his sentence.
On April 11, 2006, the Government filed its Response to Petitioner's Motion (#3). The Government argued that Petitioner's Motion should be dismissed because Petitioner waived his right to pursue such relief during his plea of guilty. On May 24, 2006, Petitioner filed a Reply to the Government's Response (#5).
This court has carefully reviewed the record in this case and the arguments of the parties. Following this careful and thorough review, this court agrees with the Government that Petitioner waived his right to pursue relief under 28 U.S.C. § 2255. Therefore, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (#1) is dismissed.
On January 21, 2004, Petitioner was charged, with his co-defendant Michael W. Hembree, in an eight-count indictment with four counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and four counts of using a firearm during each of the bank robberies in violation of 18 U.S.C. § 924(c). On November 2, 2004, Petitioner entered a guilty plea pursuant to a written plea agreement. Petitioner pleaded guilty to all four robbery counts and to two of the § 924(c) counts. The Government agreed to dismiss two of the § 924(c) counts, agreed that Petitioner should receive a sentence reduction for acceptance of responsibility, and provided Petitioner with the opportunity to cooperate with the Government and potentially receive a downward departure for substantial assistance. In exchange for these and other concessions, Petitioner waived his right to appeal and his right to collaterally attack his sentence.
At the guilty plea hearing, this court carefully and thoroughly advised Petitioner of all the rights he was giving up by pleading guilty. The prosecutor, Richard N. Cox, stated that, under the statute, the maximum possible sentence for each of the four counts of bank robbery was 25 years imprisonment and that these sentences could be concurrent. However, Mr. Cox explained that the first conviction of using or carrying a firearm during a violent crime required a minimum sentence of seven years, which had to be consecutive to any other sentence. In addition, Mr. Cox explained that the second conviction for this offense required a sentence of not less than 25 years, which also had to be consecutive to any other sentence. Mr. Cox stated, "[s]o for the two counts of using or carrying a firearm during a violent crime, it's a minimum of 32 years." Mr. Cox later, in an exchange with this court, again stated that, "with regard to the two firearms counts, whatever sentence you give cannot be less than 32 years." Petitioner's counsel, Baku Patel, then indicated his agreement that the sentences to be imposed were statutorily consecutive. Upon questioning by this court, Petitioner then stated that he understood that it was "the firearm counts that are causing a large statutory penalty and a consecutive statutory penalty," which this court had no control over because "Congress made that law." This court again explained that "[t]his is not the guideline, but this is the statute." Petitioner stated that he understood he was facing "a very, very severe penalty."
This court further explained that the "only way to get less than 32 years is [if the Government makes] the motion for downward departure and then ask[s] the Court under 3553(e) to go below the mandatory minimum consecutive nature of 32 years." This court stated, "[i]f they don't do it, there's nothing I can do to give you a sentence of anything less than 32 years." Petitioner stated that he understood that, and understood it was a big risk he was taking, not knowing what the Government would do in the future. Petitioner stated that, knowing that uncertainty, he wanted to proceed with his guilty plea.
This court then thoroughly discussed the waiver of appeal rights included in the plea agreement. This court also stated, "[d]o you understand that you're also giving up a right to come in later and attack the conviction and sentence so that if there was any question about it being final, it's final." Petitioner responded, "Yes, Your Honor." The following exchange then occurred between the court and Petitioner:
Q: And you have entered in this agreement waiving that statutory right to appeal and statutory right to come in and collaterally attack because you believe it is in your best interest to obtain the benefit of the concession of cooperation because if you didn't do that, you would face an automatic mandatory minimum 32 years. So you believe it's in your best interests to waive your right to appeal and collaterally attack and enter into the cooperation agreement, hoping that the United States will make a 5K1.1 motion for downward departure and a motion below that 32-year mandatory minimum consecutive nature.
Mr. Cox then provided a factual basis for the guilty plea and recounted the factual details of the four bank robberies committed by Defendant Hembree and Petitioner. These facts showed that the robberies occurred in small town banks. Defendant Hembree had a gun during all four of the robberies and threatened people who were in the banks. In addition, during the first three bank robberies, Defendant Hembree sprayed pepper spray or mace in the face of most of the persons who were located in the bank at the time of the robbery. Petitioner agreed with the factual basis provided by Mr. Cox. This court then accepted Petitioner's guilty plea, and set the case for a sentencing hearing.
Petitioner's sentencing hearing was held on May 3, 2005. At the beginning of the hearing, Mr. Cox stated that the Government was dismissing two of the firearms counts, Counts 6 and 8 of the indictment, pursuant to the plea agreement. This court granted the Government's request to dismiss those two counts and proceeded to sentencing on the six counts Petitioner was convicted of following his guilty plea. The Government stated that it had no objections to the presentence investigation report (PSR). Petitioner's counsel withdrew the only remaining objection raised on behalf of Petitioner. Petitioner, during questioning by this court, stated that he agreed with the decision to withdraw the objection and further stated that he had no objections to the PSR that he wished to raise on his own behalf. After discussing the terrible nature of the crimes committed by Petitioner and Defendant Hembree, the Government stated that Petitioner was prepared to testify at Defendant Hembree's trial and would have been a credible, valuable witness. Petitioner's testimony was not necessary, however, ...