United States v. Duffin

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.

         Currently 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 (8^th Cir. 2013). The undersigned, being well and sufficiently advised, finds and recommends as follows.

         BACKGROUND

         On June 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 (8^th Cir. 2016). Defendant filed the § 2255 motion currently before the Court on February 20, 2018 (Doc. 50.)

         DISCUSSION

         Ground One

         For his 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.)

         The 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 (8^th Cir. 2003), cert. denied, 540 U.S. 1199 (2004).

         The 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.

         As to 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.

         The undersigned, therefore, sees no merit to Defendant's claims regarding his counsel's performance in negotiating a plea.

         Ground Two

         Defendant 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 sentencing hearing.

         Absent 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 (8^th 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 ...