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Jones v. United States

United States District Court, E.D. Missouri, Eastern Division

December 27, 2017

JAMES EDWARD JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner James Edward Jones's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On September 10, 2013, Petitioner entered a plea of guilty, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to three counts: (1) assault of a federal officer in violation of 18 U.S.C. § 111(a), (2) brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and (3) possession with the intent to distribute cocaine base (“crack cocaine”) in violation of 21 U.S.C. § 841. Under the parties' negotiated Rule (c)(1)(C) plea agreement, in exchange for Petitioner's plea of guilty to these counts, the government dismissed a fourth count, for possession of a firearm in furtherance of a drug-trafficking crime in violation of § 924(c), and recommended a sentence of 20 years, in total, which would be binding on the Court if accepted. The Court accepted Petitioner's plea, and on December 17, 2013, sentenced Petitioner to a total of 20 years in prison, and a three-year term of supervised release.

         In his pro se motion to vacate and set aside his conviction and sentence, Petitioner claims that: (1) plea counsel failed to file a notice of appeal after Petitioner instructed him to do so; (2) there was no factual basis for Petitioner's plea because there was evidence of entrapment as to the drug charges, and plea counsel was ineffective for failing to object to the validity of the plea on this basis; (3) plea counsel was ineffective for failing to move to suppress the charge of possession with intent to distribute, and the charge of possession of a firearm in connection therewith, based on a defense of entrapment; and for failing to request a lesser sentence or a downward departure at sentencing based on the entrapment; and (4) the waiver of appeal and post-conviction rights included in the parties' plea agreement is not enforceable because the plea lacked a factual basis and was tainted by ineffective assistance of counsel, as stated above.

         On November 20, 2017, the Court held an evidentiary hearing on Petitioner's claims. The Court appointed counsel to represent Petitioner at the hearing. Based on the entire record, and having had the opportunity to observe and evaluate the demeanor of the witnesses at the hearing, Petitioner's motion will be denied.

         BACKGROUND

         Criminal Proceedings

         As part of the guilty plea agreement signed by both parties, Petitioner stipulated to the following facts. On April 15, 2013, Petitioner asked an undercover agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“agent”) to pick him up, as they had previously discussed Petitioner selling the agent crack cocaine. Petitioner advised the agent to drive to a certain location where Petitioner could obtain a firearm, stating that he (Petitioner) liked to have a firearm with him while conducting “business.” At the stated location, Petitioner exited the vehicle to meet with Frederick Crayton (“F. Crayton”), and retrieved a firearm from an area by a window of a nearby house. Petitioner brought the firearm back to the vehicle and handed it to the agent, who denoted the make, model, and serial number.

         Petitioner then called Dwayne Crayton (“D. Crayton”), who told Petitioner that a source who could provide crack cocaine wanted to meet Petitioner and D. Crayton at a second location. The agent was instructed to follow Petitioner to the second location. When the agent arrived, the agent gave Petitioner money. While still in possession of the firearm, Petitioner took the money, and walked with D. Crayton to purchase the crack cocaine. Petitioner brought the crack cocaine back to the agent. The agent weighed the substance and found it to be light. D. Crayton then spit out more crack cocaine from his mouth to make the requested amount. Petitioner was armed throughout the exchange, and the substance was later analyzed by the St. Louis Police Lab, which confirmed that it was approximately seven grams of crack cocaine.

         On April 18, 2013, Petitioner and F. Crayton met with the agent and two confidential informants (“CIs”), pursuant to a previous arrangement, to sell the agent and CIs three firearms. Petitioner and F. Crayton intended to rob the agent of the money that was to be used to buy the three firearms. At the meeting, F. Crayton stated, before walking away, that he was going to drive separately to the location where the firearm transaction was to take place. Petitioner remained in the agent's vehicle. Seconds later, F. Crayton returned to the agent's vehicle and pointed a firearm at the agent and one of the CIs. At the same moment, Petitioner pulled a firearm from under his jacket and pointed it at the agent as well. A struggle for the firearms ensued. Petitioner used his firearm to strike the agent in the head, leaving a gash. Petitioner then exited the vehicle, followed by the agent. The agent was immediately confronted by a third robber, a juvenile, but the juvenile ran off after a brief struggle with the agent. F. Crayton, who was still armed, then assaulted the agent, and the two struggled for control of F. Crayton's firearm. During the agent's struggle with F. Crayton, Petitioner pointed his firearm at the agent and pulled the trigger. However, the firearm did not discharge as its magazine and a single round had been ejected during the prior struggle inside the vehicle. Petitioner then ran off.

         On April 24, 2013, Petitioner was indicted on four counts: (1) assault of a federal officer, (2) brandishing a firearm in furtherance of a crime of violence, (3) possession with intent to distribute crack cocaine, and (4) possession of a firearm in furtherance of a drug trafficking crime, pursuant to 18 U.S.C. § 924(c). Count 4 carried a mandatory term of imprisonment of not less than 25 years, consecutive to any other sentence imposed. 18 U.S.C. § 924(c)(1)(C)(i). Petitioner initially pled not guilty.

         At the change-of-plea hearing held on the day the plea agreement was executed, September 10, 2013, Petitioner was given time to discuss the terms of the plea agreement with both his attorney and the prosecutor, and to address any questions Petitioner had about the same. Following that discussion, Petitioner represented to the Court at the change-of-plea hearing that he understood the terms of the plea agreement and that he was guilty of the crimes to which he was pleading guilty. He further confirmed that he was satisfied with the representation he received from his attorney, and that there was nothing he wanted his attorney to do for him that the attorney had not done in representing Petitioner. United States v. Crayton et al, No. 4:13-CR-157-AGF-2 (“Crayton I”), ECF No. 149 at 22-28 (E.D. Mo.). Petitioner also represented that he understood that he would normally have the right to appeal both his conviction and his sentence, but that in the plea agreement, he was waiving his right to appeal all nonjurisdictional, nonsentencing issues, and all sentencing issues other than the calculation of his criminal history. Id. at 31-32. The Court ascertained the factual basis for the guilty plea and found that the plea was knowing, intelligent, and voluntary. Id. at 55.

         As noted above, on December 17, 2013, consistent with the parties' plea agreement, the Court sentenced Petitioner to a total of 20 years in prison, and a three-year term of supervised release.[1] Petitioner was sentenced 13 years each for counts one and three, to be served concurrently. As required by statute, 18 U.S.C. § 924(c)(1)(A)(ii), Petitioner was sentenced to seven years for Count 2, to be served consecutive to the term for Counts 1 and 3. The government dismissed Count 4 pursuant to the plea agreement.

         At the sentencing hearing, the Court again advised Petitioner that he had entered into a plea agreement that waived some or all of his rights to appeal his sentence. The Court further advised Petitioner that if he believed that the waiver was not valid or did not cover some ground he wished to raised, he could present that theory to the appellate court, and that Petitioner could also appeal his conviction if he believed that his guilty plea was somehow unlawful or involuntary, or if there was some other fundamental defect in the proceedings that was not waived by his guilty plea. Crayton I, ECF No. 146 at 54. The Court advised Petitioner that he had the right to apply for leave to appeal in forma pauperis and that his attorney or the Clerk of Court would prepare and file a notice of appeal upon his request. The Court then asked plea counsel to review with his client and promptly file the Notice of Compliance required by Local Rule 12.07(A). Id.

         On December 17, 2013, plea counsel filed the Notice of Compliance, which was signed by Petitioner that day, and in which a box containing the following representation was checked: “I have been fully informed of my right to appeal the final judgment in this case, I do not wish to file a Notice of Appeal, and I ...


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