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United States v. Foster

United States District Court, E.D. Louisiana

November 8, 2018

UNITED STATES OF AMERICA
v.
KEITH FOSTER

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is petitioner Keith Foster's (“Foster”) motion[1] to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied.

         I.

         On November 3, 2016, Foster was charged in counts one through five of a six-count indictment.[2] On May 23, 2017, Foster pled guilty to conspiracy to distribute and possess with the intent to distribute a quantity of heroin, conspiracy to possess a firearm in furtherance of a drug trafficking crime, and possession of a firearm in furtherance of a drug trafficking crime.[3] On August 24, 2017, Foster was sentenced to a term of imprisonment of 295 months.[4] Foster timely appealed his sentence and conviction.[5] His appeal was later dismissed by his own motion on November 22, 2017.[6] Foster timely filed the present motion on August 22, 2018, which the government does not dispute.[7]

         II.

         Section 2255 allows a prisoner in federal custody to bring a motion to vacate, set aside, or correct his sentence, in the court that imposed the sentence, when that prisoner claims a

right to be released upon a ground that the sentence was imposed in violation of the constitution or laws of the United States, or that the court was without the jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255(a). When a defendant challenges his conviction and sentence collaterally under § 2255, the defendant can only bring “issues of constitutional or jurisdictional magnitude.” United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.1991) (citing Hill v. United States, 368 U.S. 424, 428 (1962)); see also United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (“Section 2255 motions may raise only constitutional errors and other injuries that could not have been addressed on direct appeal that will result in a miscarriage of justice if left unaddressed.”).

         Foster asserts seven grounds for relief: (1) inaccurate information in the presentence investigation report (“PSR”), specifically alleging there were two different PSRs before sentencing; (2) ineffective assistance of counsel for failure “to provide defendant with proper and accurate assistance/mislead”; (3) an illegal sentence that was beyond the guideline range; (4) counsel's failure to investigate and determine why Foster was federally charged; (5) “outrageous conduct by the Judge” at sentencing; (6) the government “never made [Foster] an offer”; and (7) the government pressured Foster to plead guilty.[8]

         All of Foster's claims, except his ineffective assistance of counsel claims, were waived in his plea agreement, and they are procedurally barred because he did not bring them on direct appeal. Likewise, Foster's ineffective assistance of counsel claims are meritless.

         III.

         Foster's claims set forth in his first, third, fifth, sixth and seventh grounds for relief were waived in his plea agreement. “A defendant may waive his right to 28 U.S.C. § 2255 post-conviction relief if the waiver was knowing and voluntary.” United States v. Michele, No. 13-160, 2016 WL 1660179, at *7 (E.D. La. Apr. 27, 2016) (Africk, J.) (citing United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002)). “A waiver is knowing and voluntary where the defendant indicates at the plea hearing that he has read and understands the plea agreement containing the waiver.” United States v. Singleton, No. 14-168, 2017 WL 3894687, at *1 (E.D. La. Sept. 6, 2017) (Africk, J.) (quoting United States v. Donahue, 333 Fed.Appx. 897, 898 (5th Cir. 2009)). “For such a waiver to be knowing and voluntary, a defendant must understand that he has the right to collateral review and that he is giving up that right.” Michele, 2017 WL 1660179, at *7 (citing United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011)). “[W]hen the record . . . clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed.” Singleton, 2017 WL 3894687, at *1 (quoting United States v. Portillo, 18 F.3d 290, 293 (5th Cir.1994)).

         Foster pled guilty, and entered into a plea agreement with the government.[9] Foster's plea agreement, which he and his counsel signed and authenticated, includes a waiver of any collateral challenges, including challenges under § 2255:

the defendant, in exchange for promise(s) and agreement(s) made by the United States in this plea agreement, knowingly and voluntarily . . . waives and gives up any right to challenge his sentence collaterally, including but not limited to any and all rights which arise under Title 28, United States Code, Sections 2255 and 2241, Rule 60 of the Federal Rules of Civil Procedure, Rule 36 of the Federal Rules of Criminal Procedure, writs of coram nobis and audita querla, and any other collateral challenges to his sentence of any kind.[10]

         At Foster's rearraignment, the Court, after finding that Foster was competent to enter into the proceedings, [11] questioned Foster as to his understanding of the plea agreement and the consequences of the waiver:

THE COURT : Mr. Foster, have you had an opportunity to read and review and discuss this four-page plea agreement with your attorney of record, Mr. Arena?
THE DEFENDANT : Yes, sir.
THE COURT: And are your initials on all four pages of the plea agreement?
THE DEFENDANT : Yes, sir.
THE COURT : And is this your signature on the fourth and final page of the plea agreement?
THE DEFENDANT: Yes, sir. . . .
THE COURT : Now, as part of your plea agreement, you waived your rights, in most respects, to appeal your conviction and/or your sentence. Do you understand that, in addition to giving up your right to a direct appeal, you've further waived your right to contest your conviction and/or your sentence in any collateral proceeding pursuant to 28 U.S. Code, Sections 2255 and 2241, which allow defendants to challenge whether their sentence and/or conviction was constitutional and/or contrary to the laws of the United States? Do you understand that?
THE DEFENDANT : Yes, sir.. . .
THE COURT : Do you understand you are waiving and giving up your right to collaterally challenge your sentence, including but not limited to any civil rights which arise under the U.S. Code, Federal Rules of Civil Procedure, Federal Rules of Evidence, and any other collateral challenges to your sentence of any kind?
THE DEFENDANT : Yes, sir.
THE COURT : Have you had a chance to discuss your waiver with counsel?
THE DEFENDANT : Yes, sir.
THE COURT : Did your counsel explain the waiver to you, including the rights you are and are not giving up?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with the advice your attorney gave you regarding the waiver?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about the waiver?
THE DEFENDANT: No, sir.[12]

         Foster does not specifically allege that his waiver was involuntary or unknowing. He does, however, allude to such a claim in ground seven of his motion by stating that he was pressured into pleading guilty because the prosecutor gave him “one week to plead guilty or go to trial.”[13]

         The Court specifically questioned Foster at rearraignment about whether he was voluntarily and knowingly entering into the plea agreement and waiving his right to appeal:

THE COURT: Have you been influenced or persuaded in any way to plead guilty because of any promise of leniency or other things made by anyone?
THE DEFENDANT: No, sir.
THE COURT: Have you been induced or persuaded to plead guilty because of any threats made by anyone?
THE DEFENDANT: No, sir.. . .
THE COURT: Are you entering into the waiver voluntarily and of your own free will?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied you understand the waiver?
THE DEFENDANT: Yes, sir.[14]

         “Ordinarily a defendant will not be heard to refute his testimony given under oath when pleading guilty.” United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985) (quoting United States v. Sanderson, 595 F.2d 1021, 1021 (5th Cir. 1979). “If, however, the defendant offers specific factual allegations supported by the affidavit of a reliable third person, then he is entitled to have a hearing on his allegations.” Fuller, 769 F.2d at 1099 (citing Blackledge v. Allison, 431 U.S. 63 (1977)).

         Foster indicated that he read and understood the plea agreement, and he assured the Court that he was aware of the consequences of his plea agreement. Further, Foster has not provided the Court with any support for his allegations that pressure by the government rendered his waiver unknowing or involuntary. Therefore, his first, third, fifth, sixth, and seventh claims are rejected.[15]

         IV.

         Foster's claims in his first, fifth, and sixth grounds for relief also fail because they are insufficient to allege constitutional errors in his proceedings.

         Pro se § 2255 motions are construed liberally, but “mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.” United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (citing United States v. Woods, 870 F.2d 285, 287-88 (5th Cir. 1989)); see also Blackledge, 431 U.S. at 74 (“The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”).

         Foster's first ground for relief is not a claim of constitutional error. Furthermore, although Foster asserts that there was inaccurate information in the PSR and that there were two PSRs before sentencing, [16] such claim is not supported by the record, which reflects that only one final PSR was submitted to the Court.[17]However, included in the final PSR are Foster's two objections; one was cured before sentencing and the other was overruled by the Court at sentencing.[18]

         Moreover, the Court and Foster's counsel cured Foster's claim that there was inaccurate information in the PSR at Foster's sentencing. Foster's counsel objected to the inclusion of information in the final PSR that was allegedly added after Foster submitted his objections to the draft PSR.[19] Foster argued that some of the additional information did not apply to Foster, and the Court stated that it would not consider that information when sentencing Foster.[20]

         Foster's conclusory fifth ground for relief, that the conduct of the Court during his proceedings was “outrageous, ” sarcastic and petty, [21] is not a challenge to the constitutionality of Foster's proceedings and, without specific allegations alleging constitutional error, is not considered on habeas review. See Williamson, 183 F.3d at 462.

         Likewise, Foster's claim in ground six-that he “was never made an offer”-is conclusory and confusing. Even construing Foster's allegation liberally, his claim does not rise to a constitutional challenge. First and foremost, “a defendant has no right to be offered a plea.” Missouri v. Frye, 566 U.S. 134, 148 (2012) (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977)). Second, Foster received a plea deal, which he agreed to, and the government agreed to dismiss the remaining charges in the indictment.[22]

         The Court notes that it questioned Foster, his attorney and the government at Foster's rearraignment about any additional plea offers, and gave Foster an opportunity to ask the government or his attorney any questions:

THE COURT: All right. Has the government made any other plea offers other than what is set forth in the plea agreement?
THE DEFENDANT: No.
THE COURT: By the government?
[Assistant U.S. Attorney] JONES: No, Your Honor.
THE COURT: Counsel, have there been any other plea offers to your client?
MR. ARENA: No, Your Honor, no other plea agreements.
THE COURT: Not only plea agreements, but have there been any other plea offers?
MR. ARENA: No. other plea offers, Your Honor.
THE COURT: Sir, to the best of your knowledge, is what your attorney just said ...

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