United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, District Judge.
This matter is before the Court on Carl Watkinis' motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The United States of America has responded to the motion. On April 19, Petitioner filed a motion for leave to amend the original §2255 motion. [Doc. 38]. The motion for leave to amend was granted on April 20, 2012. [Doc. 40]. Petitioner filed three subsequent motions to amend, all of which were granted by this court.
Facts and Background
On December 28, 2009, Movant entered a U.S. Bank, 301 North Tucker, St. Louis, Missouri. Movant approached a teller's window and presented a handwritten note stating, "This is a robbery. Give me everything in your top drawer". The teller collected $2, 100 in U.S. currency and handed it to Movant. Movant took the currency and his note and placed in an envelope. He then walked out of the bank.
On January 13, 2010, Movant entered Commerce Bank located at 6630 Delmar, University City, Missouri. Movant approached a teller's window and handed a note to the teller which stated, "This is a robbery". The teller pulled the piece of paper closer, at which time Movant responded by grabbing the paper and telling the teller, "Don't do anything, just give me the money". The teller handed $3, 785 in U.S. currency to Movant. Movant took the money and left the bank.
On February 1, 2010, Movant entered the Commerce Bank located at 6383 Clayton Road, Clayton, Missouri. Movant approached a teller window and presented a handwritten note with the words: "This is a robbery. Don't be a hero. Give me all large bills". The teller delivered Movant $2, 090 in U.S. currency. Movant took the money and ran from the bank.
The total amount of U.S. currency taken during the bank robberies totaled $7, 975. However, $2, 070 was recovered at the time of Movant's arrest and was returned to the Commerce Bank in Clayton, Missouri.
On February 4, 2010, the federal grand jury for the Eastern District of Missouri, in St. Louis, returned a three-count indictment against Movant. In Count I, he was charged with the robbery of the U.S. Bank in the City of St. Louis on December 28, 2009. In Count II, he was charged with the robbery of the Commerce Bank on January 13, 2010. The third count charged him with robbery of the Commerce Bank on February 1, 2010.
At the time the indictment was returned, Movant was in State custody awaiting resolution of a probation revocation matter arising from these bank robberies. The United States applied for a writ of habeas corpus ad prosequendum. That warrant was issued on February 5, 2010 and Movant was temporarily transferred into federal custody. [Doc. # 4] He was appointed a Federal Public Defender to represent him. In April, 2010, Movant waived his right to file pre-trial motions. [Doc. #24, 25, 26]. Thereafter, In July 2010, Movant=s attorney withdrew from representation and a new attorney, Paul Sims, was appointed by the Court to represent Movant. [Doc. #37, 39, 40, 41].
The matter was set for trial to begin on October 12, 2010. Movant, however, elected not to proceed to trial and appeared before this Court on October 14, 2010, to enter a plea of guilty. Movant pleaded guilty to Count I of the Indictment pursuant to a Plea Agreement between the parties.
On February 22, 2011, Movant appeared before this Court for sentencing. The Court sentenced Movant to a term of imprisonment of 54 months. The Court also imposed a term of Supervised Release of three years. Pursuant to the terms of the plea agreement, the Government moved to dismiss Counts II and III of the indictment. The motion to dismiss the remaining counts of the indictment was granted by the Court.
Despite a waiver of appeal in the plea agreement between the parties, Movant appealed his conviction to the Eighth Circuit Court of Appeals. Thereafter, Paul Sims filed a document with the Eighth Circuit stating that he had talked with Movant and they had determined it was in Movant's best interest to dismiss his appeal. The appeal was subsequently dismissed by the appellate court on April 11, 2011.
Movant next filed his Motion for Post-Conviction Relief pursuant to Title 28 U.S.C. Section 2255 and his various amended motions.
CLAIMS FROM THE INITIAL MOTION FOR POST CONVICTION RELIEF
Movant has raised eight grounds for post-conviction relief in his original motion for post-conviction relief. Each of his grounds for relief asserts ineffective assistance of counsel, citing the following reasons: (1) a generic claim that counsel was ineffective; (2) failing to subject the prosecution to meaningful adversarial challenge; (3) failing to explain the plea agreement fully to Movant; (4) incorrectly informing Movant that his federal and state sentences would run concurrently with each other; (5) failing to present mitigating evidence to the Court at sentencing; (6) failing to reinstate the pretrial motions and to conduct pretrial discovery; (7) misadvising him of the improbability of acquittal and benefit of pleading; and (8) misadvising Movant on direct appeal.
THE AMENDED CLAIMS
A. Amended Claim of April 19, 2012
Movant asserts a claim based upon the United States Supreme Court decision Lafler v. Cooper, 132 S.Ct. 1376 (2012), stating:
Just like in [ Lafler ], the Movant also entered a plea but neither before plea, or, after plea negotiations did Attorney Paul Sims, advise Movant that he could have negotiated a term of probation as part of the plea agreement.
However, or, that the government had the burden of proving beyond a Reasonable doubt the bank(s) were covered by FDIC.
B. Amended Claim of May 16, 2012
Movant asserts counsel was ineffective "for failure to file instructed direct appeal." In support of this claim, Petitioner asserts:
Movant instructed Attorney Paul Sims to raise the issue whether the U.S. Attorney Thomas Mehan obtained authorization and approval from his supervisors at the Department of Justice as required by the Petite Police §§ 9.XX-XXX-XXX, to initiate and continue the Federal Prosecution for Bank Robbery under §§ 2113(a), in violation Thompson v. United States, 444 U.S. 248 (1980); Rinaldi v. United States, 434 U.S. 22 (1977); Petite v. United States, 361 U.S. 529 (1960); Watt v. United States, 422 U.S. 1032 (1975). But counsel failed to appeal. Roe v. Flaves-Ortega, 528 U.S. 470 (2000). Movant requests this court to grant him a "nunc pro tunc" direct appeal as he desired. Padilla v. Kentucky, 130 S.Ct. 1473 (October 13, 2009).
C. Amended Claim of August 20, 2012
Movant re-asserts a Lafler v. Cooper claim, asserting his attorney provided ineffective assistance of counsel for failing:
to advise movant that he was eligible for six months probation, because offense was a class C felony, and not seeking a lesser plea offer than the 54 months terms of imprisonment for count one of Bank Robbery under §§ 2113(a) of the Grand Jury indictment in violation of movant's Sixth Amendment Right to effective assistance of counsel, and Fifth Amendment Right to real notice of the true nature of the charge against him guaranteed by the U.S. Constitution and Due Process; thus making the plea involuntary and unintelligent.
Citing Lafler v. Cooper , Petitioner explains further:
Had Mr. Sims advised movant after his investigation and discovery that the government had sufficient reason to accept terms and conditions of probation as well as psychotherapy treatments permitted such placement for non-violent offenders who suffered from a mental instability and duress at the time of the alleged crime, and sought to obtain a lesser plea offer from the government, movant would have agreed to negotiate a plea deal for 6 months probation terms and conditions that upon completion without violation of law, the conviction for count one be expunged from the record. But for counsel's unprofessional errors it is likely [probable], the court Would have accepted the terms and conditions of the plea agreement....
D. Amended Claim of September 19, 2012
Movant asserted he "wishes to add the claim of defect in instituting the prosecution and selective prosecution on and under newly discovered evidence.'" Movant also stated he "wants to separate his claim of ineffective assistance of counsel' from his involuntary guilty plea' claim, and ameliorate both with specificity, to overcome the ambiguity within: that he may procure the liberal constructions' due him." Id.
E. Amended Claim of October 25, 2012
Again asserting Lafler v. Cooper, Movant raised the same claim as he did in his Amended § 2255 ...