United States District Court, E.D. Louisiana
LANCE M. AFRICK, District Judge.
Before the Court is a petition filed by petitioner, Thaddeus Richardson ("Richardson"), for post-conviction relief pursuant to 28 U.S.C. § 2255. The government opposes the petition. For the following reasons, the Court finds that an evidentiary hearing is not necessary and the petition is DENIED.
On January 9, 2013, Richardson was charged in a two-count bill of information. Count 1 charged that on or about November 20, 2012, in the Eastern District of Louisiana, Richardson knowingly and intentionally possessed with the intent to distribute a mixture or substance containing a detectable amount of heroin, a Schedule I controlled dangerous substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count 2 charged that on or about November 20, 2012, in the Eastern District of Louisiana, Richardson knowingly possessed firearms (a Glock.40 caliber semi-automatic handgun, a Freedom Arms.22 caliber handgun, a Smith and Wesson.38 caliber revolver, and a Proff Tested 20 gauge shotgun) in furtherance of a drug trafficking crime, to wit, possession with intent to distribute heroin and oxycodone pills in violation 21 U.S.C. § 841(a)(1), all in violation of 18 U.S.C. § 924(c)(1). The bill of information also included notices of drug and gun forfeitures.
On March 1, 2013, the Court was informed that Richardson had entered into a plea agreement with the government in which he agreed to plead guilty to counts 1 and 2 of the bill of information. In exchange, the government agreed that it would not charge him with any other violations of the Federal Controlled Substances Act and the Federal Gun Control Act that he may have committed in the Eastern District of Louisiana prior to November 13, 2012, except for any crimes of violence or fraud against the United States. The plea agreement was predicated on Richardson truthfully informing federal agents of the details of any such crimes with which he was involved. The plea agreement contained a waiver of appeal and post-conviction proceedings.
At rearraignment, counsel for the government read the factual basis into the record. Richardson agreed under oath that he had signed the factual basis after reviewing it with his counsel. Richardson had no questions for the government or his counsel, stated that he understood the evidence, that the government's statements were correct, and that he "did the things in the factual basis."
With respect to the firearms charge in count 2, the factual basis stated that when Richardson sold five Oxycodone tablets to a confidential source at his apartment on November 13, 2012, he "had a semi-automatic pistol displayed on the table where the purchase occurred." He was also "observed [to be] in possession of a semi-automatic handgun" during another drug transaction on November 19, 2012. When Richardson was pulled over in his vehicle on November 20, 2014, law enforcement officers "recovered a.22 caliber pistol from the door panel of the driver's side" and "a Glock semi-automatic.40 caliber handgun from underneath the driver's side seat, " both of which were loaded. They also recovered from the vehicle a briefcase containing "166 Oxycodone tablets, 11 Lortab tablets and approximately 1 gram of Heroin" and "a notebook which appeared to be a ledger for illegal sales of narcotics." Richardson agreed in the factual basis that he possessed the firearms recovered from his vehicle "in furtherance of [his] possession with the intent to distribute the Oxycodone tablets and Heroin in his possession."
Richardson admitted that when officers executed a search warrant for his apartment, they recovered a.38 caliber handgun and a shotgun, both of which were "loaded and located within close proximity to the Oxycodone pills, scales, syringes and packaging materials recovered" from the apartment. Richardson again agreed in the factual basis that "the handgun and the shotgun were possessed by [him] both in furtherance of [his] possession with the intent to distribute the Oxycodone pills recovered from the apartment, and in furtherance of the November 13, 15, and 19, 2012, distributions of narcotics (Heroin and Oxycodone) to the confidential source that took place at [his] apartment."
At the rearraignment, the Court informed Richardson that he faced "a maximum term of 20 years imprisonment" as to count 1 and, as to count 2, "a minimum of five years imprisonment which must be served consecutive to any sentence imposed with respect to Count 1." Richardson stated that he understood that he would be sentenced within those ranges.
Also at rearraignment, counsel for the government summarized the waiver of appellate and post-conviction relief in the plea agreement,  and the Court confirmed that Richardson understood that he had rights to collateral review and that he was waiving those rights, except that he retained the right to appeal or challenge (1) "any sentence imposed in excess of the statutory maximum, " (2) his conviction or sentence if he could show he "received ineffective assistance of counsel and [that] the ineffective assistance directly affected the validity of [his] plea, the waiver of appeal, or the waiver of collateral challenge rights, " and (3) "the bill of information [if it] did not state an offense and/or where the factual basis for the plea did not show the commission of an offense." Richardson stated under oath that he understood the waiver and the rights he was giving up. Counsel for Richardson stated that he had explained "the waiver of appellate rights, both on direct appeal and through a collateral attack" to his client, and that he was satisfied that Richardson understood the rights he was giving up. Richardson agreed with his counsel's statements and he had no questions.
On June 6, 2013, the Court sentenced Richardson to a total term of imprisonment of 78 months, consisting of 18 months as to count 1 and the mandatory minimum 60 consecutive months as to count 2. The sentence imposed as to count 1 was a downward variance based on Richardson's lack of prior criminal record, the small amount of heroin involved, the significant 60-month sentence imposed as to count 2, and the many letters submitted on Richardson's behalf. At the sentencing hearing, the Court overruled an objection to a 2-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of distributing a controlled substance. Richardson's counsel argued for leniency in sentencing, but he did not specifically argue for a downward variance based on Richardson's pretrial release on bond, which initially required him to reside at a halfway house although it was later modified to permit home confinement.
Richardson filed no direct appeal. He filed this petition pursuant to 28 U.S.C. § 2255 on June 5, 2014,  and a corrected memorandum of law on June 20, 2014. The government filed its opposition on July 18, 2014,  to which Richardson filed a reply. The government then sought and received leave to file a supplemental response,  which Richardson both responded to and moved to strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. The matter is now under submission and ripe for a decision.
LAW AND ANALYSIS
I. Applicable ...