United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
before the Court is a pro se 28 U.S.C. § 2255 Motion
(Doc. 50) filed by the Defendant/Movant David Duffin
(hereinafter “Defendant”) and the
Government's Response (Doc. 53). While afforded the
opportunity to file a Reply (Doc. 42), Defendant did not do
so. An evidentiary hearing is not warranted in this matter,
as the § 2255 motion, files, and records in this case
conclusively show that the Defendant is not entitled to
relief. See 28 U.S.C. § 2255(b); Jeffries
v. United States, 721 F.3d 1008, 1014 (8th
Cir. 2013). The undersigned, being well and sufficiently
advised, finds and recommends as follows.
3, 2015, an Indictment was filed charging the Defendant with
transporting a 13-year-old in interstate commerce with the
intent to engage in criminal sexual activity, in violation of
18 U.S.C. § 2423(a). (Doc. 1.) On August 10, 2015,
Defendant signed a written plea agreement, agreeing to plead
guilty to the charge. The plea agreement set out the
applicable penalties of a mandatory minimum term of
imprisonment of ten years, and a maximum term of imprisonment
of up to life. (Doc. 53-2.) A change of plea hearing was
scheduled, but was subsequently cancelled because the
Defendant changed his mind about pleading guilty and elected
to proceed to a jury trial. The trial commenced on August 17,
2015, and the jury returned a guilty verdict on August 19,
2015. (Doc. 26.) On February 24, 2016, a judgment was entered
sentencing the Defendant to 420 months imprisonment,
supervised release for life, and a $15, 000.00 fine.
Defendant appealed and his conviction and sentence were
affirmed on January 23, 2017. (Doc. 49.) United States v.
Duffin, 844 F.3d 786 (8th Cir. 2016).
Defendant filed the § 2255 motion currently before the
Court on February 20, 2018 (Doc. 50.)
first ground for relief, Defendant asserts that his counsel
was ineffective in failing to inform him of the “exact
Agreement that [the] Government offered, instead stated that
it would be an agreement for 15-20 years if I had pleaded
guilty.” Defendant further asserts that counsel
“came back 5 time[s] with the exact same plea offer,
” and “did not counter Government offer . . .
even though I told him that it was to[o] much time that was
offered.” (Doc. 50 at pg. 4.)
right to effective assistance of counsel extends to the
plea-bargaining process, such that “[i]f a plea bargain
has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept
it.” Lafler v. Cooper, 566 U.S. 156, 168
(2012). In order to establish ineffective assistance of
counsel, Defendant must demonstrate that his counsel's
performance was both deficient and prejudicial. See
Strickland v. Washington, 466 U.S. 669, 693 (1984). In
determining whether counsel's conduct was deficient,
there is a strong presumption that counsel's conduct
falls within the range of reasonable professional assistance.
Id. at 689. To demonstrate that counsel's
performance prejudiced his defense, Defendant must show that
there is a reasonable probability that, but for his
counsel's alleged errors, the result of the proceedings
would have been different. Id. at 694. Specifically,
in this case, Defendant must show that, but for his
counsel's advice, he would have accepted the plea.
See Sanders v. United States, 341 F.3d 720, 722
(8th Cir. 2003), cert. denied, 540 U.S.
undersigned sees no merit to Defendant's assertion that
counsel failed to inform him of the exact agreement offered
by the Government. The written plea agreement, which is
attached to the Government's Response (Doc. 53-2) to
Defendant's § 2255 motion, was signed by the
Defendant, but was never filed because the Defendant changed
his mind about pleading guilty. The written plea agreement
sets out the exact agreement offered by the Government.
Defendant's contention that counsel informed him that the
agreement would be for 15-20 years is belied by the written
agreement, which correctly set out the ten-year minimum and
lifetime maximum penalties. Further, the written plea
agreement specifically stated that Defendant could be
sentenced to any sentence within the statutory range and that
no promises, agreements or understandings had been made to
him that were not set forth in the plea agreement.
Defendant's assertion that counsel failed to counter the
Government's plea offer, Defendant does not explain what
type of plea agreement would have been acceptable to him. As
pointed out by the Government, between the time of his trial
and his sentencing hearing, the Defendant wrote a letter to
the minor victim stating, “I took it to trial just so I
could see you one last time.” (PSR ¶ 18.) Thus, it
appears that Defendant's decision to go to trial was
motivated by seeing the minor victim at trial, rather than by
counsel's alleged failure to secure a more favorable plea
agreement. Moreover, there is no indication that the
Government had any incentive to bargain with the Defendant,
given the overwhelming evidence against him, including his
own confession and the victim's testimony.
undersigned, therefore, sees no merit to Defendant's
claims regarding his counsel's performance in negotiating
asserts that his counsel denied him the right to testify on
his own behalf. Specifically, Defendant contends that his
counsel informed him that if he testified, the Government
would call witnesses that could “hurt [his] case
further, ” but the Government called them anyway at his
a showing that his trial counsel unduly influenced or coerced
him not to testify, Defendant waived his right to testify by
remaining silent after his trial counsel rested without
calling him as a witness. See Hines v. United
States, 282 F.3d 1002, 1004 (8th Cir.),
cert. denied, 537 U.S. 900 (2002). Defendant has
made no showing of undue influence or coercion by his
counsel. To the contrary, the trial transcript demonstrates
that the Defendant knowingly and voluntarily waived his right
to testify. Trial counsel informed the Court, “Mr.
Duffin has decided not to testify.... I would ask the Court
to discuss with Mr. Duffin that testifying is his absolute
right and to determine whether or not he's made the
decision not to testify freely and voluntarily.” (Doc.
46-3 at pg. 663.) The Court then fully informed Defendant of
his right to testify and of the advantages and disadvantages,
such as subjecting himself to cross-examination. Defendant
stated on the record that he understood his right to testify
or not testify and that his counsel had answered any and all
questions he ...