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United States v. Tyms

August 28, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARCUS TYMS, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Marcus Tyms ("Tyms"), has filed a self-prepared 28 U.S.C. §2255 ("Section 2255") motion ("Motion"), seeking to get out from under (1) his guilty plea to an extraordinarily disturbing sex offense and (2) the consequent 280-month sentence that this Court then imposed. This Court has engaged in the careful examination mandated by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules"), and Tyms' motion is rejected out of hand without the need for any government response or for an evidentiary hearing.

Not only the recency of the case (Tyms was sentenced on July 2, 2009, less than two months ago) but the appalling nature of Tyms' offense, coupled with his post-guilty-plea conduct, have understandably left the case more than fresh in this Court's recollection. Accordingly it is possible to deal swiftly with Tyms' two stated grounds for relief:

1. In Motion ¶14.A, Tyms' "Ground one" asserts: My first attorney, J. Clifford Greene, Jr. was ineffective as counsel causing me to plead guilty.

2. In Motion ¶14.B, Tyms' "Ground two" asserts: The Government did not prove/provide evidence to show applicable jurisdiction.

As for the first of those grounds, Tyms' change to a guilty plea was indeed a last-minute event. Trial was set to begin on Monday, December 8, 2008, but Tyms announced at the Friday morning December 5 voir dire conference (which had been set to discuss various aspects of trial procedure) that he would accept the government's latest (and last) offer for a plea. Later that day this Court, presented with a comprehensive plea agreement signed by Tyms as well as by his counsel and government counsel, carried out its customary meticulous exploration of the matter to assure (1) that Tyms' plea was indeed voluntary, (2) that he understood the effect of the plea (what he had to give up as well as what he might consider to be the advantages of a change of plea) and (3) that he was proposing to plead guilty because he acknowledged the conduct that was necessary to sustain a conviction.

In that regard this Court is always careful to inquire into the aspect of voluntariness that involves the role of a defendant's attorney. After having made a series of inquiries that enabled this Court to find that Tyms was competent to plead guilty if he so elected, this Court engaged in the following colloquy with Tyms at Tr. 7:18 through Tr. 8:5 of the 29-page plea transcript:

THE COURT: Have you gotten a copy of this indictment, and have you fully discussed the charges in your case in general with Mr. Greene as your lawyer?

DEFENDANT TYMS: Yes, sir.

THE COURT: Are you fully satisfied with the representation, the counseling, the advice that you are getting from him?

DEFENDANT TYMS: Yes, sir.

THE COURT: You told me that you signed a plea agreement. Did you have the full opportunity to read and to discuss with Mr. Greene what the content was of the plea agreement before you signed it?

DEFENDANT TYMS: Yes sir.

In terms of the offense itself the government had Tyms dead to rights, based on the appallingly graphic nature of Tyms' own extensive chat exchanges with the 13-year-old virgin "Amber" and on the fact that Tyms, knowing her age, actually had her come to this District from her home elsewhere and had sex with her. Less than two years earlier Tyms (then 21 years old) had pleaded guilty to a state charge of having solicited, via the internet, a person that he believed to be ...


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