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United States v. Bragg

United States District Court, W.D. Oklahoma

June 20, 2018




         Before 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.[1]

         In his 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.[2]

         Factual and Procedural Background

         Defendant 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.

         Defendant's 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.

         On 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.

         In the 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.

         Defendant 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.

         Collateral-Attack Waiver

         Defendant 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 sentence.[3]

         The 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.[4] Thus, the Court proceeds to consider only Defendant's ineffective assistance claim to this extent.

         Standard of Decision

         “A 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.

         In the 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)).


         Defendant claims he received ineffective assistance of counsel because Mr. Coyle:

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 5);
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” ...

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