Washington v. United States

          ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         For the 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.

         I. The § 2255 Motion

         Background

         After 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.

         A short 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.

         The 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.

         On 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.

         Count 2 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).

         On 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, 14.

         On 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.

         The 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.

         On 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.

         On June 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 release. ...