United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Johnnie Ray Bragg, Jr.'s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence [Doc. No. 511]. The Motion is supported by a
memorandum of law and exhibits [Doc. No. 512], including
copies of correspondence and affidavits of Defendant and his
wife, codefendant Lakisha Perry a/k/a Lakisha Bragg
(hereafter “Lakisha”). The government has filed a
response, accompanied by an affidavit of Defendant's
original attorney, Billy Coyle [Doc. No. 527], and Defendant
has filed a reply [Doc. No. 533]. For reasons that follow,
the Court finds that no hearing is needed and the Motion
should be denied on the existing record.
Motion, Defendant asserts two claims for relief: Ground One,
Mr. Coyle provided ineffective assistance in connection with
Defendant's plea of guilty to two counts of the
Indictment; and Ground Two, the Court abused its discretion
in denying Defendant's motion to withdraw his guilty plea
before sentencing. See Motion at 5, 6. In support of
Ground One, Defendant asserts that his attorney erred in the
following particulars: 1) failing to discuss with Defendant
certain discovery materials produced by the government; 2)
failing to investigate and advise Defendant about available
defenses; 3) coercing Defendant to plead guilty by joining
with Assistant United States Attorney Leslie Maye in making
false promises to drop all pending charges against his wife
Lakisha and have her released from detention, to obtain
Defendant's release from a restricted housing unit of the
jail, and to cease any federal investigation of charges
related to a “cell phone incident;” 4)
misrepresenting the amount of prison time that Defendant
would receive; 5) failing to file a motion to suppress
evidence obtained from court-authorized wiretaps; and 6)
failing to explain the Sentencing Guidelines and their likely
effect on Defendant's sentence. See Def.'s
Mem. Supp. Mot. [Doc. No. 512] (hereafter, “Def.'s
Br.”) at 5, 9, 12, 19, 24, 29.
and Procedural Background
Bragg pleaded guilty on August 8, 2012, to Counts 1 and 2 of
the Indictment. The grand jury charged Defendant and 12
codefendants on March 6, 2012, with 47 offenses; Defendant
was named in 33 counts: Count 1, conspiracy to distribute
multiple Schedule I and Schedule II controlled substances, in
violation of 21 U.S.C. § 846; Count 2, conspiracy to
commit money laundering, in violation of 18 U.S.C. §
1956(h); Counts 6, 7, 10, 14, 16, 24, 25, 27, 28, 35, 37 and
47, money laundering in violation of 18 U.S.C. §
1956(a)(1); Counts 8, 15, 26, 30 and 31, interstate travel in
furtherance of the drug conspiracy, in violation of 18 U.S.C.
§ 1952(a)(3); and Counts 12, 13, 17, 18, 19, 20, 32, 34,
36, 38, 41, 42, 43 and 44, using a telephone in furtherance
of the drug conspiracy, in violation of 21 U.S.C. §
843(b). The alleged conspiracies spanned a time period from
September 2010 to April 2011, and involved drug trafficking
and financial transactions between California and Oklahoma.
The government's evidence was obtained through physical
surveillance, investigative activities, court-authorized
wiretaps, and cooperating witnesses.
presentence report was initially disclosed on November 2,
2012. Within the time period for written objections, the
Court received a handwritten letter from Defendant stating he
wanted to withdraw his guilty plea and wanted a new attorney.
His reason for withdrawing the plea was that he “did
not know what [he] was doing” when he entered it.
See Letter filed 11/15/12 [Doc. No. 285].
Specifically, Defendant stated that the prosecutors and his
appointed counsel, Mr. Coyle, promised him that Lakisha would
be released from jail if he signed the plea papers, that he
did not understand the charges until Mr. Coyle later provided
him with copies of written discovery, and that he was not
guilty of the charges. Defendant also accused Mr. Coyle of
not communicating with him, working with the prosecutor to
induce him to plead guilty, and failing to prepare a defense.
December 3, 2012, the Court ordered the appointment of new
counsel to replace Mr. Coyle, and denied Defendant's
pro se request to withdraw his plea. Defendant's
new attorney, Bill Zuhdi, obtained a plea hearing transcript
and subsequently filed a motion to withdraw Defendant's
guilty plea. This motion was again based on allegations,
supported by Defendant's affidavit, that the plea was
“not knowingly and voluntarily entered but was coerced,
and that Mr. Coyle failed to disclose to him certain
documents produced in discovery that revealed possible
defenses.” See 3/19/13 Order [Doc. No. 325] at
2. The Court denied the motion on March 19, 2013, without a
hearing. See id. at 1.
meantime, Defendant was indicted in February 2013 on a new
charge that he had attempted to intimidate a cooperating
witness in this case between November 2012 and January 2013.
See United States v. Bragg, Case No. CR-13-32-D,
Indictment (W.D. Okla. Feb. 19, 2013). Shortly before trial
was set to begin, Defendant reached a second plea agreement
with the government (through the same prosecutors) and
entered a plea of guilty on April 8, 2013, admitting that he
sent a threatening letter to a witness in late 2012 in an
attempt to prevent the witness's cooperation. Final
presentence reports were then completed in both cases, and a
combined sentencing hearing was held. In July 2013, the Court
imposed concurrent 480-month prison sentences on Counts 1 and
2 in this case, to be followed by a consecutive 46-month term
of imprisonment in the second case.
appealed, but the Tenth Circuit dismissed the appeals upon
motions of the government to enforce appeal waivers contained
in both plea agreements. See United States v. Bragg,
554 Fed.Appx. 781 (10th Cir. 2014). In an effort to avoid
dismissal of the appeal, Defendant made allegations of
ineffective assistance against Mr. Coyle affecting the
validity of the waiver in this case, but the court of appeals
ruled that the claim must be brought in a collateral
proceeding under § 2255. Id. at 783. Defendant
timely filed the instant § 2255 Motion.
signed a plea agreement by which he “voluntarily
waive[d] his right to . . . “[a]ppeal or collaterally
challenge his guilty plea, sentence restitution imposed, and
any other aspect of his conviction . . .” and
“[a]ppeal, collaterally challenge, or move to modify
under 18 U.S.C. §3582(c)(2) or some other ground, his
sentence as imposed by the Court and the manner in which the
sentence is determined, provided the sentence is within or
below the advisory guideline range determined by the Court to
apply to this case.” See Plea Agreement [Doc.
No. 186] at 9, ¶ 8(a)-(b). The government asserts that
all claims except Defendant's allegations against Mr.
Coyle that draw into question the validity of Defendant's
guilty plea, are barred by his waiver of the right to
collaterally challenge his conviction and
Tenth Circuit has already determined that the waiver is
enforceable “without prejudice to [Defendant's]
ability to bring a § 2255 motion claiming ineffective
assistance of counsel to the extent permitted by his
collateral-attack waiver and applicable precedent, including
[United States v.] Cockerham, ” 237
F.3d 1179 (10th Cir. 2001). See Bragg, 554 Fed.Appx.
at 783. Under Cockerham, 237 F.3d at 1187, a
defendant cannot waive “ineffective assistance claims
challenging the validity of the plea or the waiver.”
Most of Defendant's allegations in support of the
ineffective assistance claim in Ground One of his Motion are
not barred by the waiver of collateral-attack rights because
they draw into question the validity of his plea agreement or
his guilty plea. Thus, the Court proceeds to consider only
Defendant's ineffective assistance claim to this extent.
successful claim of ineffective assistance of counsel must
meet the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).” United States v. Harms, 371 F.3d
1208, 1211 (10th Cir. 2004). Under this test, Defendant must
show that his “counsel committed serious errors in
light of ‘prevailing professional norms' and that
there is a ‘reasonable probability' that the
outcome would have been different had those errors not
occurred.” United States v. Haddock, 12 F.3d
950, 955 (10th Cir. 1993) (quoting Strickland, 466
U.S. at 688, 694); accord United States v. Mora, 293
F.3d 1213, 1217 (10th Cir. 2002). Courts apply “a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 669; see United States
v. Barrett, 797 F.3d 1207, 1214 (10th Cir. 2015)
(counsel's performance must be “completely
unreasonable, not merely wrong”); Byrd v.
Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (same).
“An insufficient showing on either element is fatal to
an ineffective-assistance claim, rendering consideration of
the other element unnecessary.” Smith v.
Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016); see
Byrd, 645 F.3d at 1168.
context of a guilty plea, the prejudice prong of
Strickland requires Defendant to “show that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985); see Premo v. Moore, 562 U.S.
115, 131-32 (2011); United States v. Silva, 430 F.3d
1096, 1099 (10th Cir. 2005). This showing involves an
objective component; “proof of prejudice requires a
petitioner to show that ‘a decision to reject the plea
bargain would have been rational under the
circumstances.'” See Heard v. Addison, 728
F.3d 1170, 1184 (10th Cir. 2013) (quoting Padilla v.
Kentucky, 559 U.S. 356, 372 (2010)) (emphasis omitted).
The assessment includes “objective factors such as
whether an unmade evidentiary or legal discovery
‘likely would have changed the outcome of a trial,
' or whether a defense about which the defendant was not
advised ‘likely would have succeeded at
trial.'” Id. at 1183 (quoting
Hill, 474 U.S. at 59). A showing of prejudice also
involves a subjective component, which “take[s] into
account a particular defendant's own statements and
actions in determining whether he would have insisted on
going to trial.” Id. Where a defendant claims
a guilty plea was involuntary due to counsel's errors,
the “defendant's statements on the record,
‘as well as any findings by the judge accepting the
plea, constitute a formidable barrier.'” Romero
v. Tansy, 46 F.3d 1024, 1033 (10th Cir. 1995) (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
claims he received ineffective assistance of counsel because
1) “fail[ed] to reveal, review or discuss the
government's released discovery materials prior to
coercing [him] into pleading guilty” (Def.'s Br. at
2) “fail[ed] to advise him that he had ‘viable
defenses' to the conspiracy and related offenses”
(Def.'s Br. at 9);
3) “coerced [Defendant] to plead guilty in conjunction
with the United States' Attorney's
representative” (Def.'s Br. at 12);
4) failed to provide competent advice “during the plea
negotiation stages” (Def.'s Br. at 19);
5) “fail[ed] to file for suppression hearing to
challenge the Title III wire interception affidavits”