United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE
reasons explained in this Entry, the amended motion of Henry
Washington for relief pursuant to 28 U.S.C. § 2255 must
be denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 Motion
receiving reports that Henry Washington was distributing and
dealing powder cocaine, crack cocaine, and heroin from his
residence in Kokomo, Indiana, law enforcement with the
assistance of a confidential informant (“CI”)
arranged a controlled buy of powder cocaine from Mr.
Washington. United States v. Washington,
1:15-cr-0042-TWP-DML-1, Crim. Case, dkt. nos. 1, 37, 41. On
October 24, 2013, the CI, who wore a recording device, was
picked up by an associate of Mr. Washington's and taken
to Mr. Washington's Kokomo residence for the purpose of
purchasing cocaine powder. After the CI entered Mr.
Washington's home, law enforcement heard a male voice
say, “I'm almost out.” Id. The CI
subsequently left Mr. Washington's home with an
African-American female and got into a black Cadillac with a
license plate registered to Yolanda and Henry Washington.
Id. The CI texted law enforcement that the drug
supplier was coming to Mr. Washington's residence because
Mr. Washington was almost out of cocaine. Id.
time later, law enforcement observed a blue Dodge pick-up
truck arrive at Mr. Washington's residence. An unknown
African-American male exited the vehicle and entered the
residence through the front door. Id. The CI
returned to Mr. Washington's residence and law
enforcement heard a male voice counting “1100,
1200.” Id. After purchasing approximately 11
grams of cocaine powder from Mr. Washington, the CI left the
residence. Id. The CI later reported that about one
half kilogram of cocaine was on the table at Mr.
Washington's home, it was being bagged up for resale, and
Mr. Washington had a firearm in his waistband at the time the
CI made the purchase. Id.
next day, law enforcement executed a search warrant at Mr.
Washington's residence. The following items were found in
the home: 6 firearms (one reported stolen); 5 boxes of
different caliber ammunition; mail addressed to Mr.
Washington at the Kokomo residence; 2 check books with names
Yolanda and Henry Washington; digital scales; 6 cellular
telephones; plastic baggies; 2 coffee grinders with white
powdery residue; 1 vacuum packaging system; 1 plate and straw
with white residue; 701.85 grams of marijuana; 107.93 grams
of heroin; 107.90 grams of cocaine; 19.02 grams of cocaine
base; and $24, 252.00 in United States currency (of which
$780.00 was the “buy” money provided to the CI).
Id. A Charter Arms .38 caliber revolver loaded with
five (5) rounds of ammunition was found near Mr. Washington.
Id. Heroin was located in a pot of boiling water on
the stove. Id. The cocaine and a portion of the $24,
252.00 was found in a safe along with a Titan Tiger .38
caliber revolver. Id. The four (4) other handguns
were found in the master bedroom as well as various calibers
of ammunition. Id., dkt. nos. 37, 41. The key to the
safe was on Mr. Washington's person. Id., dkt.
1. In February, 2014, an expert in firearms interstate nexus
confirmed that the six firearms found at Mr. Washington's
home were not manufactured in Indiana and therefore would
have affected interstate commerce. Id.
February 19, 2015, Mr. Washington was charged in a
three-count Indictment filed in the Southern District of
Indiana. Id., dkt. 12. Count 1 charged Mr.
Washington with possession with the intent to distribute 50
grams or more of heroin, in violation of 21 U.S.C. §
841(b)(1)(B) (The Presentence Investigation Report
(“PSR”) notes that the Indictment had a
scrivener's error when it stated “50” grams
or more instead of the correct amount of 100 grams or more.).
Id., dkt. 41, p. 4.
charged Mr. Washington with possession with the intent to
distribute cocaine and marijuana, in violation of 21 U.S.C.
§ 841(a)(1). Count 3 charged him with possession of a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c).
March 16, 2015, Mr. Washington filed a Petition to Enter a
Plea of Guilty. Crim. Case, dkt. 31. In the petition, Mr.
Washington represented to the Court that he received a copy
of the Indictment which he read and discussed with his
attorney; that his attorney was fully informed of the facts
and circumstances of this case; that his attorney informed,
counseled and advised him as to the nature and cause of every
accusation and possible defenses in this case; that his
attorney advised him of the minimum and maximum punishment
for Count 1 being 5-40 years in prison; that he believed his
attorney had done all that anyone could do to counsel and
assist and he understood the proceedings in his case; and
that he made no claim of innocence. He also declared that his
plea of guilty was free, voluntary, and of his own accord and
indicated that his attorney had explained to him and he
believed and understood the statements set forth in the
Indictment, in his petition, and in the certificate of
counsel. Id., Petition ¶¶ 4, 5, 6, 12, 13,
March 16, 2015, the parties filed a Plea Agreement pursuant
to Federal Rules of Criminal Procedure 11(c)(1)(A) and (B),
wherein Mr. Washington agreed to plead guilty to Count 1 of
the Indictment, the charge of possession with intent to
distribute 100 grams or more of heroin. Id., Plea
Agreement, dkt. 32. Mr. Washington understood that the final
determination of his sentence, including the advisory
guideline range, would be made by the Court. Id.,
¶ 3. He also acknowledged that if the Court decided to
impose a higher or lower sentence than any recommendation of
either party, or determined that a different advisory
sentencing guideline range applied, or decided to depart from
the applicable advisory sentencing guideline range, then Mr.
Washington would not be permitted to withdraw his plea of
guilty for that reason. Id., ¶ 4.
government agreed to recommend a sentence within the advisory
guideline range and that if Mr. Washington continued to
accept responsibility, he would be entitled to a three-level
decrease in his offense level pursuant to U.S.S.G. §
3E1.1(a) and (b). Id., ¶¶ 6(a) and 12(a)
and (b). The parties agreed that Mr. Washington was free to
request any available sentence, including a sentence below
the guideline range. Id., ¶ 6 (b). The
government agreed to move to dismiss the remaining counts at
sentencing. Id., ¶ 6(c). Mr. Washington also
agreed and understood that by accepting the terms of his plea
agreement, he agreed to waive his right to appeal his
conviction and sentence and his right to bring a challenge by
post-conviction motion, including an action brought under 28
U.S.C. § 2255. Id., ¶ 11.
April 2, 2015, the Court held a change of plea hearing. Crim.
Case, dkt. 36. The parties filed a Stipulated Factual Basis,
signed by Mr. Washington. Id., dkt. 37. The Court
advised Mr. Washington of his rights, and he entered a plea
of guilty. Id., dkt. 36. The Court found a factual
basis for the plea and that the plea was voluntarily and
knowingly made. Id. The Plea Agreement was taken
under advisement and Mr. Washington was adjudged guilty of
Count 1, possession with intent to distribute 100 grams or
more of heroin, as charged in the Indictment. Id.
18, 2015, the Court held a sentencing hearing. Id.,
dkt. 54. The Court sentenced Mr. Washington to 180 months of
imprisonment, to be followed by five years of supervised