United States District Court, W.D. Arkansas, El Dorado Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
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.
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
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
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
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:
OF APPELLATE AND POST-CONVICTION RIGHTS
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
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.
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.
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.
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.
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.
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
E. Trial counsel was ineffective for failing to contest the
Government's violation of the terms of ...