United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Defendant Odell Wells' Motion to Set Aside,
Correct and/or Vacate Sentence Under 28 U.S.C. § 2255,
R. Doc. 818, and Motion for Leave to File Supplemental
Pleading, R. Doc. 847. Having considered the Defendant's
motions, Government's response, and the applicable law,
the Court now issues this Order and Reasons.
February 13, 2014, a Second Superseding Indictment was
returned against Defendant Odell Wells and his codefendnats.
R. Doc. 192. On March 27, 2015, Defendant pled guilty to
Count One of the Second Superseding Indictment, which charged
that beginning around August 1, 2012 and continuing until
July 9, 2013 Defendant and his codefendants did knowingly and
intentionally conspire and agree with each other, along with
other persons known and unknown to the Grand Jury, to
distribute and possess with the intent to distribute 280
grams or more of a mixture or substance containing a
detectable amount of cocaine base, a Schedule II narcotic
drug controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), all in violation of
21 U.S.C. § 846. Id. at 2; R. Doc. 452.
of his plea Defendant entered into a plea agreement with the
Government. R. Doc. 454. The agreement includes a waiver of
Defendant's right to seek post-conviction relief under 28
U.S.C. § 2255. Id. at 3. Prior to sentencing
Defendant filed a motion to withdraw his guilty plea. R. Doc.
596. In his motion, Defendant alleged that he was coerced
into entering a guilty plea by his prior counsel and the
Government. Id. at 3. In addition, Defendant alleges
that his prior counsel failed to file motions on his behalf,
did not show him all the discovery, and did not amend the
proposed Factual Basis as Defendant requested. Defendant
argued he was told to sign the Factual Basis so he would
receive no more than a ten year sentence. Id. at 2.
The Government opposed this motion stating that Defendant
advised the Court he was entering a knowing and voluntary
guilty plea. R. Doc. 603 at 2. On October 29, 2015, a hearing
was held on this matter and Defendant orally moved to
withdraw his motion to withdraw. R. Doc. 609. The motion was
granted and Defendant's Motion to Withdraw was dismissed.
February 18, 2016, Defendant was sentenced to one hundred and
seventy-five months imprisonment. R. Doc. 708. On February
21, 2017 Defendant filed this Motion to Set Aside, Correct,
and/or Vacate Sentence Under 28 U.S.C. § 2255. R. Doc.
818. The Court now addresses Defendant's motion.
argues that his sentence should be set aside for three
reasons. R. Doc. 818. First, Defendant argues his due process
rights were violated when he was sentenced based on
materially false and inaccurate information. Id. at
14. Defendant contends that no documentary evidence of his
prior state drug convictions was attached to his presentence
report and therefore those charges should not have been used
as the basis for a sentence enhancement. Id.
Second, Defendant alleges ineffective assistance of counsel.
Id. at 18. Defendant asserts that he asked counsel
on the day of sentencing to file a direct appeal on his
behalf and counsel has not done so. Id. Finally,
Defendant alleges ineffective assistance of counsel on the
grounds that his counsel did not file an interlocutory appeal
on his behalf when the district court denied is motion to
withdraw his guilty plea. Id.
LAW AND ANALYSIS
reviewing a pro se motion, the district court is
especially obligated to consider whether the motion presents
any basis for relief. See Clymore v. United States,
217 F.3d 370, 373 (5th Cir. 2000). As such, the Court will
review Defendant's motion according to the less stringent
standard afforded to pro se litigants. See
Ominski v. Northrup Grumman Shipbuilding, Inc., 466 Fed.
App'x. 341, 345 (5th Cir. 2012).
Fifth Circuit has held that a criminal defendant may waive
his right to obtain post-conviction relief under 28 U.S.C.
§ 2255. United States v. Wilkes, 20 F.3d 651,
653 (5th Cir. 1994). Such a waiver is valid if it is informed
and voluntary and if it preserves a claim for ineffective
assistance of counsel with respect to either the validity of
the plea or of the waiver itself. Id.; United States v.
White, 307 F.3d 336, 343 (5th Cir. 2002). In this case,
Defendant's plea agreement provides that Defendant
“waives and gives up any right to challenge his
sentence collaterally, including but not limited to any and
all rights which arise under Titled 28, United States Code,
Sections 2255” except the ineffective assistance of
counsel that implicates the validity of the waiver or the
validity of the plea. R. Doc. 454 at 3. Given the terms of
the plea agreement, Defendant has waived his right to
challenge that he was sentenced on materially false and
inaccurate information as it is not a claim alleging
ineffective assistance of counsel.
raises two claims of ineffective assistance of counsel.
First, because of his counsel's failure to file a direct
appeal following sentencing. Second, his counsel's
failure to file an interlocutory appeal to contest the
Court's denial of Defendant's motion to withdraw his
plea. R. Doc. 818 at 18. As discussed above, Defendant's
claim based on his attorney's alleged failure to file a
direct appeal following sentencing is barred by the terms of
the plea agreement.
Defendant's claim that his attorney failed to file an
interlocutory appeal when the Court denied Defendant's
motion to withdraw his guilty plea may relate to the validity
of the guilty plea itself. As to Defendant's claim of
ineffective assistance of counsel regarding his motion to
withdraw his plea, Defendant was advised by the court, during
his rearraignment that mandatory minimum sentence for his
offence was ten years. R. Doc. 589 at 8. Defendant stated he
understood. Id. In addition, Defendant attested that
he plead guilty absent threats or promises regarding his
sentence. Id. at 13. The Court found Defendant
entered into the plea agreement voluntarily and knowingly.
Id. at 16. Therefore, Defendant has no claim for
ineffective assistance of counsel as to the waiver or the
plea. Further, as stated above, Defendant withdrew his motion
to withdraw his guilty plea and the Court dismissed the
motion to withdraw, it was not denied by the Court. R. Doc.
addition, in Strickland v. Washington,466 U.S. 668,
687 (1984), the Supreme Court announced the two-pronged
standard for a defendant to prevail on an ineffective
assistance of counsel argument. First, the defendant must
show that counsel's performance was deficient and second
that this deficient performance caused the defendant
prejudice. Id. Here, Defendant would likely
fail to satisfy the first prong as following counsel's
advice and pleading guilty allowed Defendant to avoid ...