United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.
the Court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 [Record Documents
498, 516, 517, &.543],  filed by defendant Mayo Barnes
("Barnes"). The United States responded to the
motion [Record Document 521], and Barnes filed a reply
thereto [Record Document 525]. For the following reasons, the
motion is DENIED.
29, 2011, a grand jury in the Western District of Louisiana
returned a fourteen-count indictment charging eleven
defendants, including Barnes, with various drug offenses.
Record Document 14. Barnes was named in Counts One
(conspiracy to possess with intent to distribute
methamphetamine) and Fourteen (possession with intent to
distribute methamphetamine). Attorney Paul Carmouche
("Mr. Carmouche") was appointed to represent
Barnes. Record Documents 6 & 11.
December 5, 2011, with the advice of Mr. Carmouche and
pursuant to a plea agreement, Barnes pled guilty to Count
Fourteen. Record Documents 198 & 199. During the guilty
plea colloquy, the Court engaged in the following exchange
The Court: And, sir, could you tell me in your own words what
you believe you are charged with in the indictment?
The Defendant: Possessing methamphetamine.
The Court: And it's possession with intent to distribute
to distribute [sic]; did you understand that?
The Defendant: Yes, ma'am, I understood that.
The Court: What about the amount, the 50 grams? Do you agree
that that's the amount?
The Defendant: Yes, ma'am.
The Court: Okay. How do you wish, sir, to plead in this
The Defendant: Guilty. Record Document 378, pp. 4-5.
Haynes, a Louisiana State Trooper assigned to the DEA Task
Force ("Trooper Haynes"), testified to the factual
basis necessary to support the guilty plea. He explained that
Barnes's co-defendant, Lauralyn Thompson
("Thompson"), began cooperating with authorities in
this drug investigation. IcL. at p. 6. Thompson ordered a
half pound of methamphetamine from co-defendants Dwight Moody
("Moody") and Terry Pimpleton
("Pimpleton"). 14 at pp. 6 & 9. Moody, in turn,
hired Barnes to travel via Greyhound bus from Shreveport,
Louisiana, to Dallas, Texas to obtain the methamphetamine
from Pimpleton and then to bring the methamphetamine back to
Shreveport. Id. at pp. 9-10 Upon Barnes's
arrival in Shreveport, Pimpleton picked up Barnes and the
drugs from the Greyhound bus station. Id. at p. 10.
At the guilty plea hearing, Barnes agreed that Trooper
Haynes's factual recitation, outlined above, was correct.
Id. at p. 11. Barnes agreed that the quantity of
methamphetamine was fifty grams or more. When asked whether
he was pleading guilty because he was, in fact, guilty as
charged, Barnes responded, "Yes, ma'am."
Id. at p. 17. He answered the same way when asked
whether his guilty plea was "a free and voluntary act on
your part done with the advice and consent of Mr.
respect to the penalty he was facing, Barnes knew that Count
Fourteen carried a mandatory minimum sentence of ten years.
Record Document 199, p. 2; Record Document 378, pp. 19-20.
Further, Mr. Carmouche stated at the guilty plea hearing,
"Your Honor, under Section D of the plea agreement, we
discussed the fact that this is a 10 to life sentence. And
Mr. Barnes and I- and of course that part, we discussed that.
You know, there is always a chance, always, that he could
have a chance to get the safety valve and that- and hopefully
he wouldn't have to do at least that minimum 10 years in
jail. But that all comes after the presentence investigation
and the entirety of the report." Record Document 378, p.
19. At the conclusion of the hearing, the Court accepted
Barnes's guilty plea to Count Fourteen.
United States Probation Office prepared a Presentence
Investigation Report ("PSR") to which Mr. Carmouche
made a number of objections. At the sentencing hearing on May
3, 2012, he objected to the PSR assessing Barnes with five
criminal history points, noting that two of those points
resulted from misdemeanors and should not be counted, while
another point stemmed from conduct to which Barnes allegedly
pled guilty only to be released from jail. Barnes's
additional two points resulted from the fact that he was on
probation when he committed the instant methamphetamine
offense. The Court overruled the defense's objection to
the points allocated for the misdemeanor convictions, and
also explained that it would not allow the defense to
collaterally attack Barnes's felony conviction. Thus, the
Court found that Barnes had five criminal history points, and
it overruled the defense's objection to the criminal
history score. Id, at p. 11.
criminal history score rendered Barnes ineligible for the
safety valve, although Mr. Carmouche nevertheless urged the
Court to apply the safety valve. In opposition to the
defense's argument, the Government stated,
The Government's position is, is that the criminal
history points that are given by the Probation Office and
that are not rebutted under this record make [Barnes]
ineligible for the safety valve by statute. And since the
statute requires the sentence to be imposed, that's it.
That's the Government's position; it's plain and
simple. The 10-year mandatory minimum must be applied unless
the statutory criteria are met. Because of the criminal
history, he cannot meet the statutory criteria. That's
the Government's position.
Id, at p. 13. The Court agreed, explaining
The Court notes for the record, that as previously stated,
that the • charge to which Mr. Barnes pled is a charge
which carries a mandatory minimum sentence of 10 years. The
only way that the Court can get out of imposing that 10-year
sentence on Mr. Barnes is if in fact Mr. Barnes was safety
valve eligible. The Court holds that Mr. Barnes is not safety
valve eligible based on the wording of the statute, that he
has a criminal history category of III.
And, Mr. Barnes, there is nothing I can do about that.
Id. at p. 13.
sentencing hearing, Trooper Haynes explained that agents,
working with cooperating co-defendant Thompson, ordered the
methamphetamine that Barnes ultimately obtained from Dallas:
"we ordered it from Mr. Pimpleton. We had Lauralyn
Thompson . . . working under our direction at that
time." Record Document 379, p. 23. Trooper Haynes
established through his testimony that two different packages
of methamphetamine were secured from Pimpleton. One package,
which was hidden behind an ice machine at Boomtown Casino,
stemmed from Thompson's order, while the other package,
which was hidden in Pimpleton's rental vehicle, was
intended to be delivered to Winnfield, Louisiana to sell to
others. Id, at 23-24. The package found at Boomtown
Casino contained 168.9 grams of actual methamphetamine, while
the package found in the rental vehicle contained 137.3 grams
of actual methamphetamine. Id. at p. 21, 24.
held Barnes accountable for only 168.9 actual grams of
methamphetamine. Record Document 281, p. 5, ¶ 24. Mr.
Carmouche objected that Barnes pled guilty to only fifty
grams of methamphetamine, implying that Barnes should not be
held responsible for morethan fifty grams of
methamphetamine. However, as the record confirms, Barnes
pled guilty to fifty grams or more of
methamphetamine. Under Title 21, it is the fifty grams itself
that triggers the ten year mandatory minimum sentence. This
distinction of whether Barnes was held accountable for more
than fifty grams at sentencing is not critical to the matter
before the Court, as Barnes's § 2255 does not
challenge his Guideline calculation or the resultant
Guideline range. Instead, it attacks the mandatory minimum
sentence which was triggered by his possession with intent to
distribute at least fifty grams of methamphetamine.
Significantly, Barnes has never disputed that the weight of
the drugs he transported from Dallas to Shreveport was at
least fifty grams.
calculation of the Guideline range, the Court found that
Barnes began with a level 34, which corresponded to between
150 and 500 grams of actual methamphetamine. The offense
level was reduced by four for Barnes's limited role in
the offense, and reduced another three levels based on his
acceptance of responsibility, resulting in a total offense
level of 27. With a total offense level of 27 and a criminal
history level III, Barnes's guideline range was 87-108
months. The Court imposed the mandatory minimum sentence of
120 months, but noted that that sentence did not reflect
Barnes's overall minimal culpability in the overall
conspiracy. Id. at p. 31.
timely filed a notice of appeal. [Record Document 308].
Barnes argued on appeal that the Government breached the plea
agreement by failing to file a U.S.S.G. § 5K1.1 motion
for downward departure based on his substantial assistance.
See Record Document 455, pp. 2-3. The Fifth Circuit
dismissed this argument, finding that the plea agreement did
not require the Government to file a substantial assistance
motion, that the possibility of a downward departure did not
induce Barnes to plead guilty, and also that the record
revealed the only real discussions counsel had about any
downward departures involved Barnes's possible
eligibility for the safety valve. Id. at pp. 3-4.
The court held that the Government did not breach the plea
agreement by failing to file a § 5K1.1 motion.
Id. at p. 7.
appeal also lodged the "novel claim" that the
Attorney General's August 12, 2013 Memorandum, entitled
"Department Policy on Charging Mandatory Minimum
Sentences and Recidivist Enhancements in Certain Drug Cases,
" (the "August 12 Memorandum") entitled him to
relief from his sentence. Id. In cases in which a
defendant met certain criteria, the August 12 Memorandum
allowed prosecutors to decline to charge defendants with drug
quantities that would trigger a mandatory minimum sentence.
Id. The Fifth Circuit disagreed with Barnes's
contention that he was entitled to a sentence reduction under
the August 12 Memorandum, finding that even if it assumed
Barnes met the criteria enunciated by the Attorney General,
the policy was not applicable to defendants who were already
convicted and sentenced. Id. Further, the court
noted that the Memorandum itself expressed that it did not
create or confer any rights, privileges, or benefits.
Id. Accordingly, Barnes was not entitled to any
appellate relief or sentencing reduction on the basis of the
August 12 Memorandum. Id. The Fifth Circuit affirmed
this Court's judgment. Id.
The Instant § 2255.
December 16, 2014, Barnes timely filed the instant motion
under 28 U.S.C. § 2255. Barnes's petition, which has
been amended a number of times, asserts the following grounds
for relief, all based on ineffective assistance of counsel.
[Record Documents 498, 516, 517, & 543]. First, as to Mr.
Carmouche, Barnes claims that he provided ineffective
assistance by (1) advising him to enter into a plea agreement
when he was not guilty of the charges against him; (2)
failing to secure a "binding" plea agreement in
which the Government would have agreed either not to apply
the mandatory minimum to Barnes at sentencing, or it would
have filed a substantial assistance motion under 18 U.S.C.
§ 3553(e), which would have authorized the Court to
sentence Barnes without regard to the mandatory minimum; (3)
advising him to enter into a plea agreement when Mr.
Carmouche should have asserted the defense of entrapment; and
(4) failing to review the presentence report with Barnes.
Second, as to Barnes's appellate counsel, Ms. Elizabeth
Dougherty ("Ms. Dougherty"), Barnes claims that she
was ineffective in (1) frivolously arguing on appeal that the
Government breached the plea agreement; and (2) failing to
seek a limited remand to the district court.