United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.
the Court is the Petitioner's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody filed April 24, 2017. (ECF No. 33).
The United States of America filed a response on May 25,
2017. (ECF No. 38). Petitioner filed a reply to the
Government's response on June 26, 2017. (ECF No. 39). The
matter is ready for Report and Recommendation.
October 28, 2015, Defendant/Petitioner, Antoine Lebeux
Michael (“Michael”), was named in an Indictment
charging him with two counts of knowingly crossing a State
line with the intent to engage in a sexual act with a person
who had not attained 12 years of age, all in violation of 18
U.S.C. § 2241(c). (ECF No. 1). Michael was arrested on
November 24, 2015 (ECF No. 13), and he appeared for
arraignment on the same date, whereupon he entered a not
guilty plea to each count of the Indictment. (ECF No. 8).
James B. Pierce, Assistant Federal Public Defender, was
appointed to represent Michael. (ECF Nos. 8, 10). Granted
leave of Court (ECF Nos. 14, 15), the Government filed an
Amended Indictment (ECF No. 16) on January 21, 2016 which
corrected the spelling of Michael's first name.
January 21, 2016, Michael appeared with his counsel before
the Hon. P. K. Holmes, III, Chief U.S. District Judge, for a
change of plea hearing. (ECF No. 17). A written Plea
Agreement (ECF No. 18) was presented to the Court, and
Michael pleaded guilty to Count One of the Amended
Indictment. The Court accepted the plea and ordered a
presentence investigation. (ECF No. 17).
initial Presentence Investigation Report (“PSR”)
was prepared by the United States Probation Office on
February 29, 2016. (ECF No. 20). On March 11, 2016, the
Government advised that it had no objections to the PSR. (ECF
No. 22). On March 18, 2016, Michael advised that he had three
objections to the PSR. (ECF No. 24). Two of Michael's
objections concerned enhancements reported in the
Michael objected to the two-level obstruction of justice
enhancement, and he also objected to the five-level
Chapter Four enhancement for engaging in a pattern of
activity involving prohibited sexual conduct. A Second Amended
Notice of Objections to Presentence Investigation Report was
filed by Michael on March 29, 2016; it presented further
argument in support of his objection to the five-level
Chapter Four enhancement. (ECF No. 27).
March 31, 2016, a final PSR was submitted to the Court. (ECF
No. 28). The Probation Officer addressed Michael's
objections in an Addendum to the PSR, and no significant
changes were made to the PSR. (ECF No. 28-1). The final PSR
determined that Michael's conduct called for a base
offense level of 38. (ECF No. 28, ¶ 30). Since the
offense involved the use of a computer, the offense level was
increased by two levels. (ECF No. 28, ¶ 31). A two-level
increase was assessed for obstruction of justice. (ECF No.
28, ¶ 34). Due to these enhancements, Michael's
adjusted offense level was determined to be 42. (ECF No. 28,
¶ 35). A five-level enhancement was assessed pursuant to
USSG § 4B1.5(b). (ECF No. 28, ¶ 38). After a
three-level reduction for acceptance of responsibility was
made, Michael's total offense level was determined to be
44. (ECF No. 28, ¶¶ 36, 37, 39). Michael's
criminal history score of one placed him in criminal history
category I. (ECF No. 28, ¶¶ 46-47).
statutory minimum term of imprisonment for Michael's
offense is 30 years and the maximum term is Life. (ECF No.
28, ¶ 78). A total offense level greater than 43 is to
be treated as an offense level of 43. U.S.S.G., Commentary to
Sentencing Table, Application Note 2. With a total offense
level of 43 and a criminal history category of I,
Michael's advisory guidelines range was determined to be
Life imprisonment. (ECF No. 28, ¶ 79).
appeared for sentencing on May 11, 2016. (ECF No. 30). The
PSR was amended in open court to remove the two-level
enhancement for obstruction of justice, and the Court
determined that Michael's total offense level was 42 and
his criminal history category was I, resulting in an advisory
guidelines range of 360 months to Life imprisonment. (ECF No.
30; ECF 32, p. 1). The Court imposed a Guidelines sentence of
360 months imprisonment, lifetime supervised release, no
fine, and a $100.00 special assessment. (ECF No. 30).
Judgment was entered on May 11, 2016. (ECF No. 31). Michael
did not pursue a direct appeal.
April 24, 2017, Michael filed his Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “motion”). (ECF
No. 33). The motion raises two grounds for relief: (1) the
appeal waiver cannot serve to preclude argument on the issues
raised, or alternatively, the appeal waiver was not validly
entered; and, (2) ineffective assistance of counsel for
failing to move to dismiss the Indictment on jurisdictional
grounds. (ECF No. 33, pp. 3, 4). No supporting facts are
stated for either ground in the motion. Attached to the
motion is a copy of the signature page of the written Plea
Agreement and Michael's Affidavit, sworn under penalty of
perjury, that the signature on the Plea Agreement “is
not my signature.” (ECF No. 33, pp. 10-11).
Memorandum of Law in Support of Motion Under 28 USC Section
2255 was also filed by Michael on April 24, 2017. (ECF No.
35). In it, Michael alleges the Plea Agreement “was
unlawfully intered (sic) and not made voluntarily and without
understanding of the consequences of the plea and the charged
indictment.” (ECF No. 35, p. 1). Michael asserts the
same grounds as stated in his motion, but he further states
under Ground One that “the district court was in error
in calculating the appropriate guidelines sentence range . .
., ” and “the court issued an unreasonable
sentence withing (sic) the improperly calculated guideline
range . . .” (ECF No. 35, p. 4). Michael claims
“[c]ounsel had an opportunity to have the illegally
obtained waiver [of appeal] dismissed prior to sentencing,
yet counsel failed to grasp this chance[, ]” and
“the Petitioner was prejudiced by this failure as he
was convicted and sentenced upon an Unconstitutional
Plea'd (sic) Agreement.” (ECF No. 35, p. 6). He
again avers that the Plea Agreement has an “unknown
signature” and that “counsel failed to advise the
court of the errouces (sic) plea agreement.”
his second ground for relief, Michael asserts the Court
should dismiss the Indictment because 18 U.S.C. §§
2241(c), 2251, 2251A and 2253 are “Unconstitutional on
their face and as applied to Petitioner.” (ECF No. 35,
p. 7). He argues these statutes “exceed congress's
power to legislate under the commerce clause . . ., ”
and after focusing his discussion on §
2252A, he asserts that the Indictment
“does not explain how the defendant actually traveled
at any time Interstate Commerce . . .” (Id.).
Finally, Michael contends his counsel had an opportunity to
raise the Commerce Clause issue to seek dismissal of the
Indictment, and that the failure to do so resulted in his
conviction and sentence “upon an [I]ndictment that
should not have resulted in the Plea-Agreement.” (ECF
No. 35, p. 11).
his motion, no supporting facts are stated in Michael's
Memorandum of Law.
United States' response in opposition to the motion was
filed on May 25, 2017. (ECF No. 38). Michael filed a reply on
June 26, 2017. (ECF No. 39).
prisoner in custody under sentence . . . claiming the right
to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “If the court finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b). A thorough review of Michael's
motion and the files and records of this case conclusively
shows that Michael is not entitled to relief, and the
undersigned recommends the denial and dismissal of
Michael's § 2255 motion with prejudice.
Legal Standard for Ineffective Assistance ...