United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, United States District Court Judge.
matter is before the Court on the Motion Under 28 U.S.C.
Section 2255 To Vacate, Set Aside, or Correct Sentence By a
Person in Federal Custody, filed by Tommy Rossiter on
February 20, 2015 (DE #400). For the reasons set forth below,
the section 2255 motion is DENIED without hearing. The Clerk
is ORDERED to DISMISS this case WITH PREJUDICE. The Clerk is
ORDERED to distribute a copy of this order to Tommy Rossiter,
#11869-027, Elkton FCI-FSL, Federal Correctional Institution
(FSL), Inmate Mail/Parcels, P.O. Box 10, Lisbon, OH 44432, or
to such other more current address that may be on file for
the Defendant. Further, this Court declines to issue
Defendant a certificate of appealability.
October 20, 2011, an indictment was filed against Defendant,
Tommy Rossiter (“Rossiter”) and numerous
co-defendants. Rossiter was charged with conspiracy to
possess with intent to distribute and distribute a quantity
of a mixture and substance containing a detectable amount of
heroin, in violation of 21 U.S.C. § 846 and 21 U.S.C
§ 841(a)(1). Rossiter entered into a plea agreement with
the Government, and the agreement was filed with this Court
on August 21, 2012. (DE #120). In it, Rossiter agreed to
plead guilty as charged. (Id., ¶ 7). The
Government and Rossiter also reached certain agreements that
were not binding on the Court. (Id.). Specifically,
they agreed that if Rossiter continued to accept
responsibility for his criminal conduct, he should receive a
two point, and if eligible, an additional one point reduction
in his offense level. (Id., ¶ 7(c)(i)).
Additionally, they agreed that the Government would recommend
that the Court impose a sentence equal to the minimum of the
applicable Guideline range. (Id., ¶ 7(c)(ii)).
Furthermore, the Government agreed to consider filing a
motion for downward departure with the Court pursuant to
Guideline section 5K1.1 and possibly 18 U.S.C. 3553(e).
(Id., ¶ 7(e)).
exchange for these benefits, the plea agreement contained the
I understand that the law gives a convicted person the right
to appeal the conviction and the sentence imposed; I also
understand that no one can predict the precise sentence that
will be imposed, and that the Court has jurisdiction and
authority to impose any sentence within the statutory maximum
set for my offense as set forth in this plea agreement; with
this understanding and in consideration of the
government's entry into this plea agreement, I expressly
waive my right to appeal or to contest my conviction and my
sentence imposed or the manner in which my conviction or my
sentence was determined or imposed, to any Court on any
ground, including any claim of ineffective assistance of
counsel unless the claimed ineffective assistance of counsel
relates directly to this waiver or its negotiation, including
any appeal under Title 18, United States Code, Section 3742
or any post-conviction proceeding, including but not limited
to, a proceeding under Title 28, United States Code, Section
(Id., ¶ 7(f)).
Rossiter agreed that his attorney had “done all that
anyone could do to counsel and assist [him], ” that he
was offering his guilty plea “freely and voluntarily
and of [his] own accord, ” that “no promises
[had] been made to [him] other than those contained in [the]
agreement, ” and that he had not been “threatened
in any way by anyone to cause [him] to plead guilty in
accordance with [the] agreement.” (Id.,
Court held a change of plea hearing on September 4, 2012. (DE
##161, 363). When asked whether he was “fully satisfied
with the counsel, representation, and advice given to [him]
in this case by Mr. Holesinger as [his] attorney, ”
Rossiter replied “yes, Your Honor.” (DE #363 at
8). After Rossiter read through paragraph 7 of his plea
agreement, the Court asked him whether he read it previously,
understood it, agreed with it, and was asking the Court to
approve it. (Id. at 10-11). Rossiter answered yes to
each of these questions. (Id.). Rossiter
acknowledged repeatedly that he agreed with the individual
and collective terms of the plea agreement and confirmed that
he wanted to plead guilty under the agreement. (Id.
Court informed Rossiter that for the count he was pleading
guilty to, “the most that you could get would be 20
years in jail, a fine of up to $1, 000, 000 or a combination
of both of those, up to life supervised release and a $100
special assessment, ” and Rossiter answered that he
understood. (Id. at 14). Additionally, the Court
advised Rossiter that the least he could get would be
probation, no fine, and no supervised release, but that he
would still have the $100 special assessment. (Id.
at 14-15). Rossiter again indicated that he understood.
(Id. at 15).
Court also confirmed that Rossiter understood that the Court
would ultimately decide his sentence and that neither the
Government's recommendations nor the Guidelines were
binding. (Id. at 15-16). This included clear
notification that the Government's recommendation that
Rossiter be sentenced to the minimum of the applicable
guideline range was not binding on the Court. (Id.
Court also discussed the cooperation provision of the plea
agreement with Rossiter. (Id. at 21-25). Rossiter
indicated he understood the risks of cooperating, and further
understood that the Government could, based on his
cooperation, file a motion under 5K1.1 seeking a sentence
below the applicable sentencing guideline calculation.
(Id. at 21-24). It was further explained that, even
if the Government filed a motion under 5K1.1, the Court has
discretion to grant or deny the motion. (Id. at
the hearing, this Court questioned Rossiter extensively about
his voluntary waiver of his right to appeal, including the
following excerpt from that colloquy:
Q: Let's go on to subparagraph (f). That deals with
appeals, Mr. Rossiter. In this case, you have acknowledged
that I have the jurisdiction and authority to sentence you up
to the maximum provided by the statute. Remember you and I
talked about that? That's the 20 years in jail, a fine of
up to a million dollars or a combination of both of those, up
to life supervised release and a $100 special assessment. Do
you understand that?
A: Right, Your Honor.
Q: Do you understand that the law gives all defendants a
right to appeal their conviction and/or sentence in a case?
Do you understand that?
A: Yes, Your Honor.
Q: In this case what you are doing is you're giving up
all those rights for all practical purposes. There's some
rights you can't give up, like jurisdiction. For all
practical purposes, you're giving up all of your rights
to an appeal. Do you understand that?.
A: Right, Your Honor.
Q: That includes incompetence of counsel except as it relates
to this waiver and/or its negotiation. Do you understand
A: Yes, Your Honor.
Q: Do you understand that the government is not giving up any
of their ...