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United States v. Martin

United States District Court, W.D. Arkansas, El Dorado Division

March 15, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
JAMIE B. MARTIN MOVANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Jamie Martin (“Martin”). ECF No. 271. The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The United States of America (hereinafter referred to as the “Government”) has responded to the Motion. ECF No. 275. Martin has replied. ECF No. 283.

         The Court has considered the entire record, and this matter is ready for decision. For the reasons stated below, the Court recommends the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 271) be DENIED.

         1. Background:

         On March 6, 2013, Martin was named in 4 counts of a 15-count Indictment filed in the Western District of Arkansas. ECF No. 1. Counts One and Two charged Martin with conspiracy to distribute methamphetamine while Counts Three and Four charged him with aiding and abetting in the distribution of methamphetamine. Id.

         After Martin's arrest, the Court appointed John Pickett to represent him. ECF No. 13. On May 2, 2013, a Motion for Substitution of Counsel was filed requesting John Pickett be relieved as counsel and replaced by Bill McLean. ECF No. 57. The Motion was granted on June 5, 2013. ECF No. 62. On June 11, 2013, Bill Luppen entered his notice of appearance along with Bill McLean as the attorneys of record for Martin. ECF No. 64.

         On December 11, 2013, Martin appeared with counsel McLean and Luppen before United States District Judge Susan O. Hickey for a change of plea hearing. ECF No. 108. A Plea Agreement was presented to the Court that set forth Martin agreed to plead guilty to Count One of the 15-count Indictment. ECF No. 109. Martin's Plea Agreement contained a Waiver of Appellate and Post-Conviction Rights. ECF No. 109 ¶ 7. The Plea Agreement provided, among other things, the following appeal waiver in Paragraph 7:

         WAIVER OF APPELLATE AND POST-CONVICTION RIGHTS

         7. In consideration of the promises and concessions made by the United States in this Plea Agreement, the defendant knowingly and voluntarily agrees and understands the following appellate and post-conviction terms of this agreement:

a. the defendant waives the right to directly appeal the conviction and sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a);
b. the defendant reserves the right to appeal from a sentence which exceeds the statutory maximum;
c. the defendant expressly acknowledges and agrees that the United States reserves all rights to appeal the defendant's sentence as set forth in 18 U.S.C. § 3742(b), and U.S. v. Booker, 125 S.Ct. 738 (2005);
d. the defendant waives the right to collaterally attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except for claims based on Ineffective assistance of counsel which challenge the validity of the guilty plea or this waiver;
e. the defendant waives the right to have the sentence modified pursuant to 18 U.S.C. § 3582(c), except for a rule 35(b) motion filed by the government;
f. the defendant waives the right to appeal the District Court's determination of any forfeiture issues and the Court's subsequent forfeiture order, if any.

         The Court accepted Martin's plea and ordered a presentence report. ECF No. 108. On April 4, 2014, the Probation Office issued a final Presentence Investigation Report (“PSR”) and recommended a sentence of 240 months imprisonment pursuant to the United States Sentencing Guidelines (“USSG”). ECF Nos. 131, 131-1. The PSR held Martin responsible for the equivalent of 5, 000.2838 kilograms of marijuana, which resulted in a base offense level of 34. ECF No. 131 ¶¶ 61, 66. Martin received 2-level enhancement for each of the following factors: possessing a dangerous weapon, threatening to use violence against a person whom he had distributed to, and maintaining a drug premises. Id. ¶¶ 67-69. Further, Martin received a 4-level adjustment for being a leader/organizer of the underlying conspiracy. Id. ¶ 71. This resulted in an adjusted offense level of 44, which became his total offense level after not receiving any adjustments for acceptance of responsibility. Id. ¶¶ 73, 75-77. Martin's criminal history score was determined to be three, which established a criminal history category of II. Id. ¶¶ 86-87. The USSG sentence range was life imprisonment. Id. ¶ 115. However, the statutory maximum sentence was 20 years imprisonment. Id. ¶ 114. Thus, 20 years imprisonment became the USSG range for sentencing.

         On April 9, 2015, Martin appeared before Judge Hickey for sentencing. ECF No. 208. After hearing the testimony of multiple government witnesses, the District Court sentenced Martin on Count One to 240 months imprisonment, three years supervised release, and a $100 special assessment and dismissed the remaining counts against him. ECF No. 209. The judgment was filed on April 15, 2015. Id.

         After being granted an extension of time, Martin filed a notice of appeal on May 12, 2015. ECF No. 216. After the appellant's brief was filed, the United States filed a motion to dismiss Martin's appeal based upon Rule 27 of the Federal Rules of Appellate Procedure and Rule 27A of the Eighth Circuit Rules of Appellate Procedure due to the appellate waiver contained in the Plea Agreement. See ECF No. 256. The Eighth Circuit agreed with the Government and issued its judgment on May 17, 2016 dismissing Martin's appeal. Id.

         On June 16, 2017, Martin filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person in Federal Custody. ECF No. 271. On July 3, 2017, Martin filed a Supplement to his 28 U.S.C. § 2255 Motion. ECF No. 273. Thereafter, the Court directed the Government to respond to Martin's § 2255 Motion, and the Government responded on September 25, 2017. ECF Nos. 274-275. Martin has replied. ECF No. 283. This matter is now ripe for consideration.

         2. Instant Motion:

         With the current Motion, Martin claims his counsel was ineffective, and he alleges five grounds of ineffective assistance of counsel:

A. Trial counsel allowed him to unknowingly and involuntarily enter into a Plea Agreement containing an appellate waiver;
B. Appellate counsel prematurely raised an ineffective assistance of counsel claim;
C. Trial counsel failed to inform him that drug amounts not admitted to would be used for relevant conduct;
D. Trial counsel failed to file a motion to suppress evidence; and
E. Trial counsel was ineffective for failing to contest the Government's violation of the terms of ...

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