Criminal No 11-cr-40067-JPG Criminal No 11-cr-40067-JPG
The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Jessica N. Childers' two motions to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. The motions were filed as separate cases, but the Court believes they constitute two iterations of a single petition.
Accordingly, the Court DIRECTS the Clerk of Court to file the § 2255 petition in Case No. 12-cv-666-JPG (Doc. 1) as a supplement to the § 2255 petition in Case No. 12-cv-648-JPG (Doc. 1) and to close Case No. 12-cv-666-JPG. All further filings shall be made in Case No. 12-cv-648-JPG. The Court now reviews the petition and its supplement pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings.
On August 11, 2011, Childers waived indictment and pled guilty pursuant to a written plea agreement to an information alleging one count of conspiracy to submit false, fictitious and fraudulent claims to the United States in violation of 18 U.S.C. § 286 (Count 1), one count of receiving money stolen from the United States in violation of 18 U.S.C. § 641 (Count 2), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) and (c)(1) (Count 3).
On January 13, 2012, the Court sentenced Childers to serve 84 months in prison on Counts 1 and 2 and to serve 24 months on Count 3 to run consecutive to the term for Counts 1 and 2, for a total sentence of 108 months in prison. The petitioner did not appeal her sentence.
On May 21, 2012, the petitioner filed a § 2255 motion, and on May 29, 2012, she filed the supplement. The Court has reviewed the two filings and identifies the following claims:
1. Childers' plea was involuntary because she was unable to understand what she was doing because she was on psychiatric drugs at the time of the plea;
2. Counsel for the plea was ineffective in the following ways, which rendered Childers' guilty plea involuntary:
a. failing to explain the plea agreement to Childers prior to the plea, including the waiver of appeal rights; and
b. failing to give Childers a reasonably accurate estimate of her likely sentence prior to the plea, including the total likely term of imprisonment, the 2-year consecutive term for Count 3, and the location she would likely serve her term of imprisonment;
3. Counsel for the plea was ineffective in failing to ask the presiding judge to recuse himself; and
4. Childers' conviction was obtained in violation of her right against self-incrimination and her right to counsel because she was not given Miranda warnings before she spoke with law enforcement agents and because ...