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United States v. Nevers

United States District Court, E.D. Louisiana

December 27, 2019

UNITED STATES OF AMERICA
v.
SHAWANDA NEVERS

         SECTION: “E” (1)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Shawanda Nevers' Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (hereinafter, Petitioner's “2255 Motion”).[1] The Government opposes the motion.[2] Petitioner filed a reply.[3] For the following reasons, Petitioner's 2255 Motion is DENIED.

         BACKGROUND

         On May 6, 2016, a grand jury indicted Shawanda Nevers for: 37 counts of aiding or assisting in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2); one count of criminal contempt, in violation of 18 U.S.C. § 401(3); one count of bank fraud, in violation of 18 U.S.C. § 1344(2); and one count of forging the signature of a federal judge, in violation of 18 U.S.C. § 505.[4] A superseding indictment was later returned, adding one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A.[5]

         After her arrest, Petitioner retained Eddie J. Jordan, Jr. as her counsel of record.[6]On May 12, 2016, Mr. Jordan represented Petitioner at her arraignment proceeding before Magistrate Judge Sally Shushan.[7] The Government moved for Petitioner to be detained pending trial.[8] Mr. Jordan requested a special period of release to permit Petitioner to attend her father's funeral.[9] At Mr. Jordan's request, [10] a detention hearing was held before Magistrate Judge Shushan on the following day, May 13, 2016.[11] Mr. Jordan called Petitioner's husband, Daryl Alex and cross-examined the Government's witness, James Aime, Jr.[12] Magistrate Judge Shushan ordered Petitioner detained, but granted Petitioner's request for temporary release to attend her father's funeral.[13] On June 6, 2016, Mr. Jordan filed a motion to reopen Petitioner's detention hearing, [14] which Judge Shushan denied.[15]

         On June 21, 2016, Mr. Jordan filed a motion to continue the pre-trial conference and trial, citing his need to thoroughly review the voluminous discovery, file discovery motions, and file a motion to suppress evidence.[16] The Court granted this motion.[17] On August 18, 2016, Mr. Jordan filed a second motion to continue the pre-trial conference and trial, citing his need to complete additional discovery and file the discovery motions and the motion to suppress evidence.[18] The Court granted this motion.[19] On October 17, 2016, Mr. Jordan filed a motion seeking the Court's consent to conduct a Rule 15 deposition of a witness, Daryl Becnel.[20] The Court granted this motion.[21]

         On November 18, 2019, Petitioner, through Mr. Jordan, filed a motion to conduct a hearing to determine counsel of record.[22] The motion stated, in pertinent part:

The defendant recently complained to the bar association about the timeliness of undersigned counsel's preparation and filing of a motion to suppress that the defendant has instructed undersigned counsel to file and undersigned counsel's determination not to file a motion for a speedy trial that the defendant has also ordered undersigned counsel to file. Undersigned counsel avers that the defendant's complaints are without a basis in fact or law. Further, undersigned counsel avers, on information and belief, following a conference with the defendant, the defendant now asserts that her complaints have been addressed and resolved to her satisfaction. Nonetheless, it is necessary that the defendant state on the record whether or not she is satisfied with the services provided by undersigned counsel and whether she wishes that undersigned counsel continue to represent her. Further, undersigned counsel avers that following the indictment of the defendant's husband, Daryl Alex, the defendant is without adequate financial resources to pay undersigned counsel for further pre-trial services and possible trial services, and therefore a hearing must be conducted to determine whether she meets the legal requirements for a court appointed attorney.[23]

         On November 30, 2016, a hearing was held before Magistrate Judge Michael North, who ordered that Mr. Jordan would remain counsel of record.[24]

         On December 12, 2019, Mr. Jordan filed a motion to suppress evidence, [25] arguing: (1) “[l]aw enforcement officers engaged in illegal actions, improprieties, and irregularities that fatally tainted all searches and seizures in this case”[26]; (2) “[o]n December 20, 2013 and on March 19, 2014, Ms. Nevers did not voluntarily consent to the search of her business, and therefore the warrantless search of her business on those dates was unreasonable, unjustifiable, and invalid”[27]; and (3) “[a]ll evidence derived indirectly as a result of the government's warrantless search of Ms. Nevers' business must be suppressed.”[28] On December 20, 2019, Mr. Jordan filed a request for oral argument on the motion to suppress evidence, [29] which the Court granted.[30]

         On January 27, 2017, Petitioner, through Mr. Jordan, filed a second motion to determine counsel of record.[31] The motion stated, in pertinent part:

On information and belief, undersigned counsel avers that since the indictment of the defendant's husband, Daryl Alex, the defendant is without adequate financial resources to pay undersigned counsel for further pre-trial services and trial services, and therefore a hearing must be conducted to determine whether she meets the legal requirements for a court-appointed attorney.[32]

         Petitioner filed a memorandum in support of her second unopposed motion to conduct hearing to determine counsel of record, stating:

Undersigned counsel underscores that in or about October 2016, the defendant complained to the bar association about the timeliness of undersigned counsel's preparation and filing of a motion to suppress. Further, in her complaint, Mrs. Nevers took exception to undersigned counsel's determination not to file a motion for a speedy trial. On December 27, 2016, the bar association found that there is insufficient proof to support a finding that undersigned counsel engaged in unethical conduct. Significantly, however, the defendant did not formally withdraw her bar complaint or advise the bar association that her complaint has been addressed by undersigned counsel and resolved to her satisfaction.
. . .
It is now abundantly clear that undersigned counsel and the defendant have very different ideas about the kind of defense that should be presented, including the kind of legal and factual arguments that should be made, to achieve the best result. Undersigned counsel and the defendant have therefore developed serious and irreconcilable differences and, as a result, the attorney-client relationship between undersigned counsel and the defendant has been irreparably impaired. Accordingly, it is appropriate and necessary for [Petitioner] to have new counsel.[33]

         On February 8, 2017, a hearing on Petitioner's second motion to determine counsel of record was held before Magistrate Judge North, who ordered Mr. Jordan be withdrawn as Petitioner's counsel of record.[34] Also on February 8, 2017, the Federal Public Defender was appointed to represent Petitioner, and Jerrod Edward Thompson-Hicks enrolled to represent Petitioner.[35]

         On February 15, 2017, Mr. Thompson-Hicks filed a motion to continue the pre-trial conference and trial, to allow him “additional time to meet with the defendant, review the case and to prepare for the trial in this matter.”[36] The Court granted this motion.[37]

         On March 17, 2017, Mr. Thompson-Hicks filed a motion to continue the suppression hearing because “further time is necessary to continue to meet with the defendant at the St. Charles Parish jail, to review voluminous discovery, and to prepare for the hearing on the motion to suppress evidence filed by defendant's former counsel of record.”[38] On April 25, 2017, Mr. Thompson-Hicks filed another motion to continue the suppression hearing.[39] The Court granted both motions.[40]

         On May 22, 2017, Mr. Thompson-Hicks filed a motion to continue the pre-trial conference and trial to permit time to “to explore the possibility of a pretrial resolution of this matter” and “continue to meet with the defendant at the St. Charles Parish jail, to review voluminous discovery, and to prepare for trial in this matter.”[41] The Court granted this motion.[42]

         On May 25, 2017, Mr. Thompson-Hicks filed another motion to continue the suppression hearing, [43] which the Court granted.[44]

         Mr. Thompson-Hicks represented Plaintiff at her re-arraignment proceeding on August 3, 2017.[45] Petitioner pleaded guilty to four counts of aiding and assisting in the preparation of false tax returns (Counts 17, 23, 28, and 29).[46] In exchange for Plaintiff's agreement to plead guilty to these four charges, the Government agreed to dismiss the remaining counts in the superseding indictment and the original indictment.[47] At the re-arraignment, the Court explained to Petitioner the maximum sentence that could be imposed for the four counts:

THE COURT: Ms. Nevers, the maximum possible sentence that could be imposed on you in the event of a conviction with respect to each of Counts 17, 23, 28 and 29, either upon a plea of guilty or after a trial at which you are found guilty, is a three-year term of imprisonment, a one year term of supervised release and a fine of $250, 000 or the greater of twice the gross gain to you or twice the gross loss to another person or both. . . Ms. Nevers, do you understand that even if the Court accepts your plea of guilty, the Court could impose the maximum possible sentence that I have just related to you?
THE DEFENDANT: Yes, ma'am.[48]

         The Court also questioned Petitioner and Mr. Thompson-Hicks regarding representations made to Petitioner by Mr. Thompson-Hicks:

THE COURT: Have the sentencing guidelines applicable to your case been explained to you by your counsel?
THE DEFENDANT: Yes, ma'am.
. . .
THE COURT: Mr. Thompson-Hicks, other than rough estimates of the sentencing guidelines, have you made any representations to Ms. Nevers as to the sentence I will impose?
MR. THOMPSON-HICKS: No, Your Honor.
THE COURT: Ms. Nevers, to the best of your knowledge is what your attorney just said correct?
THE DEFENDANT: Yes.
THE COURT: Do you understand that any discussions with your attorney or anyone else regarding sentencing guidelines have been merely rough estimates and that the Court is not bound by those discussions?
THE DEFENDANT: Yes, ma'am.
THE COURT: Has anyone connected with the government, anyone connected with any law enforcement agency or anyone else at any time, other than those rough estimates of the sentencing guidelines, made any prediction or promise to you as to what your sentence will be?
THE DEFENDANT: No, ma'am.[49]

         The Court questioned Petitioner and Mr. Thompson-Hicks regarding the accuracy of the Plea Agreement:

THE COURT: Ms. Nevers, have you seen this document before?
THE DEFENDANT: Yes, ma'am.
THE COURT: Is there anything in this document that you do not understand?
THE DEFENDANT: No, ma'am.
THE COURT: Is it factually correct in what it says you did?
THE DEFENDANT: Yes, ma'am.
THE COURT: Ms. Nevers, do you understand the government's evidence against you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Have you had sufficient time to discuss with your attorney the facts of your case and any possible defenses you may have?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you entirely satisfied with the advice and services of your attorney?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you wish to ask or have your attorney ask the U.S. Attorney any questions at this time about any of the things we have discussed?
THE DEFENDANT: No, ma'am.
THE COURT: Mr. Thompson Hicks, have you had full opportunity to investigate the facts of and the law applicable to this case as well as any possible defenses your client may have and to advise and counsel with your client?
MR. THOMPSON-HICKS: I have, Your Honor.
THE COURT: Ms. Nevers, to the best of your knowledge is what your attorney just said correct?
THE DEFENDANT: Yes.[50]

         Before accepting Petitioner's guilty plea, the Court questioned Petitioner and Mr. Thompson-Hicks as follows:

THE COURT: Mr. Thompson-Hicks, are you satisfied that Ms. Nevers is pleading guilty voluntarily and understandingly and with full knowledge of her plea?
MR. THOMPSON-HICKS: I am, Your Honor.
THE COURT: Ms. Nevers, let me ask you again, do you fully understand the charges against you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you fully understand the consequences of your guilty plea?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you pleading guilty because you are, in fact, guilty?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you pleading guilty voluntarily and of your own free will?
THE DEFENDANT: Yes, ma'am.
THE COURT: Although you have indicated all through these proceedings a desire to plead guilty, do you realize you still have the right to maintain a plea of not guilty at this time?
THE DEFENDANT: Yes, ma'am.[51]

         In her Plea Agreement, Petitioner confirmed her understanding of the maximum sentence that could be imposed:

The defendant understands that, should the defendant's plea of guilty be accepted, the maximum penalty the defendant may receive as to each of Counts 17, 23, 28, and 29 is 3 years of imprisonment and a fine of $250, 000 or the greater of twice the gross gain to the defendant or twice the gross loss to any person under Title 18, United States Code, Section 3571, or both.[52]

         Petitioner also waived her right to directly appeal her conviction and the right to collaterally attack her sentence under § 2255, except with regard to ineffective assistance of counsel claims:

[S]ubject only to the exceptions indicated in subsection (d) below, the defendant, in exchange for the promise(s) and agreement(s) made by the United States in this plea agreement, knowingly and voluntarily:
a. Waives and gives up any right to appeal or contest the defendant's guilty plea, conviction, sentence, fine, supervised release, and any restitution imposed by any judge under any applicable statute. . .;
b. Waives and gives up any right to appeal any order, decision, or judgment arising out of or related to Title 18, United States Code 3582(c)(2) . . . and further waives and gives up any right to challenge the manner in which the defendant's sentence was determined and to challenge any United States Sentencing Guidelines determinations. . .;
c. Waives and gives up any right to challenge the defendant's sentence collaterally, including but not limited to any and all rights which arise under title 28, United States Code, Sections 2255 and 2241. . .;
d. The defendant . . . retains the right to raise a claim of ineffective assistance of counsel in an appropriate proceeding.[53]

         On December 13, 2017, Petitioner was sentenced on Counts 17, 23, 28, and 29.[54]At sentencing, Petitioner was represented by Mr. Thompson-Hicks.[55] The Government requested a sentence be imposed within the U.S. Sentencing Guidelines (the “USSG”) range of 84 to 105 months.[56] Mr. Thompson-Hicks filed a sentencing memorandum on Petitioner's behalf.[57] At the sentencing, Mr. Thompson-Hicks argued for a downward variance based on factors including Petitioner's declining health, her acceptance of responsibility, and her need to make restitution.[58] Mr. Thompson-Hicks also requested the Court take into consideration the fact that she had already been incarcerated for 19 months.[59] The Court sentenced Petitioner to 84 months (21 months as to each count, to be served consecutively), the bottom end of the USSG range.[60] The Court also ordered that Petitioner's federal sentence run concurrently with her state sentence of 12 years.[61]

         Although Petitioner waived her right to directly appeal her conviction and the right to collaterally attack her sentence under § 2255, [62] she appealed her sentence.[63] The Fifth Circuit dismissed Petitioner's appeal, holding Petitioner's “guilty plea was knowing and voluntary, and her appeal waiver is enforceable.”[64]

         On September 26, 2019, Petitioner filed the instant 2255 Motion.[65] Petitioner raises several ineffective assistance of counsel claims as well as several substantive claims related to her re-arraignment and sentencing.

         LEGAL STANDARD

         Under 28 U.S.C. § 2255, a federal prisoner may move the court that imposed her sentence to vacate, set aside or correct the sentence.[66] Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (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 exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.”[67] A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.”[68]

         When a Section 2255 motion is filed, the district court must first conduct a preliminary review. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . .”[69] If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action.[70] The court may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery.[71]

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted.[72] An evidentiary hearing must be held “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[73] No evidentiary hearing is required if the defendant fails to produce any “independent indicia of the likely merit of [her] allegations.”[74], [75]

         Ultimately, the Defendant bears the burden of establishing her claims of error by a preponderance of the evidence.[76] For certain “structural” errors, relief follows automatically once the error is proved.[77] For other “trial” errors, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case.[78] If the court finds that the defendant is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence [her] or grant a new trial or correct the sentence as may appear appropriate.”[79]

         ANALYSIS

         I. Substantive Claims Related to Re-arraignment and Sentencing

         Petitioner raises several substantive claims related to her re-arraignment and sentencing, including: (1) the district court erred in “prevent[ing]” Petitioner from speaking at her re-arraignment[80]; (2) her sentence was “substantively unreasonable” because Petitioner's “criminal history computation came from sentences resulting from convictions that have been because errors of the law”[81] and the “tax loss amount” was incorrect[82]; (3) “prosecutorial misconduct” by, for instance, “threaten[ing] to prosecute her disabled daughter, eldest daughter and husband”[83] and withholding evidence in an unrelated state trial[84]; (4) Fourth Amendment claims, such as “[t]he federal agent . . . maliciously obtained a search warrant for the [Petitioner's] restaurant premises” based on the agent's “frivolous” affidavit[85]; and (5) judicial bias, namely, “the contempt charge was because they said that Ms. Nevers had defied Judge Morgan order.”[86] For the following reasons, the Court finds Petitioner waived these claims in her plea agreement and at her re-arraignment, and, further, the majority of these claims are procedurally barred.

         A. Waiver

         A defendant may waive her right to direct appeal and collateral attack of a conviction and sentence by means of a plea agreement, so long as the waiver is both knowing and voluntary.[87] A defendant knowingly enters a waiver when “the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it.”[88] “The Constitution does not require a great deal of knowledge on the part of the defendant.”[89] “If the defendant is aware of the potential maximum prison term and fine for the offense charged, but nevertheless pleads guilty, [her] plea is knowingly and intelligently entered.”[90] “As long as [the defendant] understood the length of the time [s]he might possibly receive, [s]he was fully aware of [her] plea's consequences.”[91]

         A defendant's waiver is involuntary if “induced by threats, misrepresentations, or improper promises, such as bribes.”[92] The Constitution requires that guilty pleas be made “voluntarily” and their attendant waivers made “‘knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.'”[93] A plea is intelligent when the defendant enters it after receiving “real notice of the true nature of the charge against [her], the first and most universally recognized requirement of due process.”[94] In determining whether a plea is intelligent, “the critical issue is whether the defendant understood the nature and substance of the charges against [her], and not necessarily whether [s]he understood their technical legal effect.”[95] The Supreme Court's decision in Boykin v. Alabama[96] “requires that defendants have a hearing prior to entry of the plea, at which there needs to be an affirmative showing that the decision to plead guilty was voluntarily and intelligently made.”[97] “Rule 11 of the Federal Rules of Criminal Procedure requires a judge to address a defendant about to enter a plea of guilty, to ensure that [s]he understands the law of [her] crime in relation to the facts of [her] case, as well as [her] rights as a criminal defendant.”[98] “The very premise of the required Rule 11 colloquy is that, even if counsel is present, the defendant may not adequately understand the rights set forth in the Rule unless the judge explains them.”[99] “However, a determination of whether a defendant understands the consequences of [her] guilty plea, including the waiver of [her] right to appeal, does not require a trial court to determine that the defendant has a perfect understanding of the consequences; the court must only ascertain whether the defendant has a realistic or reasonable understanding of [her] plea.”[100]

         “When a petition does not allege, and the record contains no indication that ratification of the plea agreement was not ‘voluntary' or knowledgeable, the Court will hold the defendant to the bargain that he made-the Court need not presume that the waiver was ineffective.”[101] Further, “when the record of the Rule 11 hearing clearly indicates that a defendant has read and understands [her] plea agreement, and that [s]he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished [her] concerning the waiver of appeal.”[102]

         In this case, Petitioner entered into a Plea Agreement wherein she waived her right to:

1) “[A]ppeal or contest [her] guilty plea, conviction, sentence, fine, supervised release, and any restitution . . . including but not limited to any right to appeal any rulings on pretrial motions of any kind whatsoever, as well as any aspect of the defendant's sentence. . .”[103];
2) “[A]ppeal any order, decision, or judgment arising out of or related to Title 18, United States Code, Section 3582(c)(2) imposed by any judge and further waives and gives up any right to challenge the manner in which the defendant's sentence was determined and to challenge any United States Sentencing Guidelines determinations and their application by any judge to the defendant's sentence and judgment”[104]; and
3) “[A]ny right to challenge [her] sentence collaterally, including but not limited to any and all rights which arise under Title 28, United States Code Sections 2255 and 2241. . .”[105]

         The Court finds Petitioner knowingly waived these rights, which include the right to collaterally attack her sentence on a 2255 motion. During Petitioner's re-arraignment, the Court explained to Petitioner the maximum sentence that could be imposed for the four counts, and Petitioner acknowledged she understood the maximum sentence:

THE COURT: Ms. Nevers, the maximum possible sentence that could be imposed on you in the event of a conviction with respect to each of Counts 17, 23, 28 and 29, either upon a plea of guilty or after a trial at which you are found guilty, is a three-year term of imprisonment, a one year term of supervised release and a fine of $250, 000 or the greater of twice the gross gain to you or twice the gross loss to another person or both. . . Ms. Nevers, do you understand that even if the Court accepts your plea of guilty, the Court could impose the maximum possible sentence that I have just related to you?
THE DEFENDANT: Yes, ma'am.[106]

         Further, in her Plea Agreement, Petitioner confirmed her understanding of the maximum sentence that could be imposed:

The defendant understands that, should the defendant's plea of guilty be accepted, the maximum penalty the defendant may receive as to each Counts 17, 23, 28, and 29 is 3 years of imprisonment and a fine of $250, 000 or the greater of twice the gross gain to the defendant or twice the gross loss to any person under Title 18, United States Code, Section 3571, or both.[107]

         The Court likewise finds Petitioner voluntarily waived these rights. During Petitioner's re-arraignment, the Court thoroughly questioned Petitioner to ensure she understood the nature and substance of the charges against her. For instance, the Court inquired:

THE COURT: Have the sentencing guidelines applicable to your case been explained to you by your counsel?
THE DEFENDANT: Yes, ma'am.
The Court also questioned Petitioner regarding her understanding of the Plea Agreement:
THE COURT: Ms. Nevers, have you seen this document before?
THE DEFENDANT: Yes, ma'am.
THE COURT: Is there anything in this document that you do not understand?
THE DEFENDANT: No, ma'am.
THE COURT: Is it factually correct in what it says you did?
THE DEFENDANT: Yes, ma'am.
THE COURT: Ms. Nevers, do you understand the government's evidence against you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Have you had sufficient time to discuss with your attorney the facts of your case and any possible defenses you may have?
THE DEFENDANT: Yes, ma'am.

         Before accepting Petitioner's guilty plea, the Court questioned Petitioner ...


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