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United States v. McGowans

United States District Court, D. Maryland

June 4, 2019

PHILLIP MCGOWANS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM ORDER

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         On September 6, 2016, Phillip McGowans ("McGowans" or "Petitioner") filed the pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF Nos.[1] 47, 54). McGowans challenges the sentence of 144 months that this Court imposed on October 21, 2015 on the grounds that the Government breached the plea agreement and that he received ineffective assistance of counsel. Specifically, McGowans claims that the Government breached the plea agreement by sentencing him pursuant to the guidelines for 18 U.S.C. § 924(c), even after the § 924(c) charge was dismissed, and that the Government failed to include the aiding and abetting provision in the plea agreement. McGowans also claims that his attorney failed to follow-up with him regarding an appeal and gave him faulty legal advice. On March 19, 2018, the Government filed a response in opposition to Petitioner's § 2255 Motion, to which Petitioner has not replied. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, Petitioner's motion remains PENDING as to his claim that defense counsel failed to file an appeal as he requested and is DENIED as to the remainder of the claims, asserted. An evidentiary hearing shall be scheduled regarding Petitioner's one pending claim.

         BACKGROUND

         On July 27, 2015, McGowans pled guilty to Count One, Hobbs Act Robbery, in violation of 18 U.S.C § 1951. (ECF Nos. 19, 20.) The original version of the plea agreement required Petitioner to plead guilty to two Counts: (1) the Hobbs Act Robbery, in violation of 18 U.S.C. § 1951, and (2) Using, Carrying and Brandishing a Firearm during and in relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c). (ECF No. 20.) The Government ultimately dropped the § 924(c) charge, and the plea agreement was manually revised with the edits initialed. (Id.) Under the original version of the plea agreement, pursuant to Rule 11(c)(1)(C), the parties agreed that the appropriate sentence would be somewhere between 120 and 156 months. (Id. at 6.) On dropping'the § 924(c) charge, the parties agreed that the appropriate sentence range had not changed. (See Id. at 6 (noting initialed changes with range unmodified).) On October 21, 2015, McGowans was sentenced to 144 months imprisonment, which was within the agreed range. (ECF No. 31.) No appeal was filed.

         On September 6, 2016, McGowans filed the pending motion in which he asserts that the Government breached the plea agreement and that he received ineffective assistance of counsel.

         LEGAL STANDARD

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., No. 17-1249, 698 Fed.Appx. 141, 142 (4th Cir. Oct 5, 2017) (citing Erickson for the proposition that "]p]ro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers").. Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizi'o, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         The scope of a § 2255 collateral attack is far narrower than an appeal, and a '"collateral challenge may not do service for an appeal.'" Foster p. Chatman, __U.S.__, 136 S.Ct. 1737, 1758 (2016) (quoting United States p. Frady, 456 U.S. 152, 165 (1982)). Thus, procedural default will bar consideration under § 2255 of any matters that "could have been but were not pursued on direct appeal, [unless] the movant show cause and actual prejudice resulting from the errors of which he complains." United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States p. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).

         ANALYSIS

         I. Breach of Plea Agreement

         Petitioner contends that the Government breached the plea agreement by not adjusting the guideline range after the plea agreement was revised to remove Count Two and requests resentencing without the 18 U.S.C. § 924(c) guideline enhancement. (ECF No. 47 at 3-4.) Petitioner also contends that the Government breached the plea agreement by failing to include the aiding and abetting provision in the plea agreement (Ground One, ECF No. 54 at 5.)

         The evidence contradicts Petitioner's contentions. McGowans pled guilty pursuant to a Rule 11(c)(1)(C) plea agreement. The original version of the plea agreement required McGowans to plead guilty to Count One, Hobbs Act Robbery, in violation of 18 U.S.C. § 1951, and Count Two, Using, Carrying and Brandishing a Firearm during and in relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c). The original plea agreement was modified so McGowans did not plead guilty to Count Two. In addition to McGowans' initials on the plea agreement itself indicating his agreement, the modification as well as the sentencing range was confirmed by this Court at the beginning of McGowans' rearraignment:

THE COURT: As I understand it, the defendant is the only defendant charged in a four-count criminal indictment in this case. And there has been a proffer of a plea of guilty to Count 1, the Hobbs Act robbery. But the original plea agreement has been modified, so the defendant is not pleading guilty to Count 2, a charge of using a firearm in furtherance of a crime of violence under 18 U.S.C, Section 924 (c).
Is that correct, Mr. Hanlon?
MR. HANLON: That's correct, Your Honor.
THE COURT: Correct, Ms. Dharia?
MS. DHARIA: That's correct, Your Honor.
THE COURT: All right. So with that, I'm ready to proceed in this matter.
Before we swear the defendant, let me just go over with you, Mr. McGowans, this plea is being proffered pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.
And, counsel, I gather that it is still the same agreed range of 10 to 13 years' incarceration or 120 to 156 months; is that correct?
MR. HANLON: That is correct, Your Honor.
THE COURT: Correct, Ms. Dharia?
MS. DHARIA: Correct, Your Honor.
THE COURT: Mr. McGowans, I'm certainly willing to accept the plea under those terms. And what that means is that if I'm inclined to sentence you to one day less than 120 months, the Government can seek to ...

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