EVERETTE BARNETT v. UNITED STATES OF AMERICA (2017)

ORDER

Everette Barnett, a pro se federal prisoner, appeals from the district court's judgment denying his motion to vacate sentence filed under 28 U.S.C. § 2255. Barnett now applies to this court for a certificate of appealability (COA).

In 2011, Barnett pleaded guilty to transporting his minor step-daughter in interstate commerce for illegal sexual activity in violation of 18 U.S.C. § 2423(a). Barnett subsequently moved to withdraw his guilty plea, but the district court denied his motion. The court imposed an above-Guidelines sentence of 264 months of imprisonment and a lifetime term of supervised release. On appeal, this court affirmed his conviction and sentence. United States v. Barnett, No. 11-6550 (6th Cir. Feb. 26, 2014) (unpublished order).

In 2014, Barnett filed his § 2255 motion, raising several claims of ineffective assistance of counsel. The district court concluded that Barnett's claims were without merit and denied his § 2255 motion. United States v. Barnett, Nos. 2:10-CR-116, et al., 2017 WL 160896 (E.D. Tenn. Jan. 13, 2017). The court also denied Barnett a COA to appeal its decision. Barnett now seeks a COA from this court, raising these same ineffective assistance of counsel issues.

Under 28 U.S.C. § 2253(c)(1)(B), this court will grant a COA for an issue raised in a § 2255 motion only if the movant has made a substantial showing of the denial of a federal constitutional right. A movant satisfies this standard by demonstrating that reasonable jurists “could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003)); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This court denies Barnett a COA because reasonable jurists could not disagree with the district court's conclusion that his ineffective assistance of counsel claims are meritless. In order to establish ineffective assistance of counsel, the petitioner first must show that his counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984); Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir. 2011). Second, the petitioner must demonstrate that the deficient performance prejudiced his defense, which requires showing that counsel's errors were so serious as to deprive him of a fair trial. Strickland, 466 U.S. at 687; Tibbetts, 633 F.3d at 442. In the guilty plea context of the current case, prejudice means that, “but for counsel's errors, [Barnett] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Further, a claim of ineffective assistance of counsel based on allegedly misleading information from counsel regarding the terms of a plea agreement never constitutes an “extraordinary circumstance” warranting relief when the district court has conducted a proper, clear, and thorough plea colloquy. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999).

Barnett first argues that his plea was not knowing and voluntary because his counsel did not adequately explain the ramifications of the plea agreement. Barnett maintains that he was promised that his federal sentence would run concurrently with a sentence for a pending state court conviction and that he would serve this sentence in federal prison. Contrary to his argument, Barnett's pending state conviction was addressed during the plea hearing, and he clearly stated his understanding that the state prosecutor would “not be bound in any way” by the federal court plea agreement. Further, Barnett understood that, if the state court would refuse to run the sentence concurrently, that fact would not provide the basis for withdrawing his guilty plea. Barnett is bound by these answers that he provided during the plea colloquy. See id. at 566.

Barnett next maintains that his attorney withheld three witness statements from him. As noted above, Barnett admitted his guilt to transporting his 14-year-old step-daughter across state lines for the purpose of illegal sexual activity. The statements on which Barnett now relies allegedly would have cast doubt on the reason for the trip across state lines. However, Barnett admitted, in his plea agreement and at his plea hearing, that he drove the victim from Tennessee to North Carolina and that they engaged in sexual intercourse once in North Carolina. Indeed, in an effort to be factually accurate, Barnett made a hand-written notation in the plea agreement clarifying where the sexual abuse occurred. He also clarified at the plea hearing that he and his wife shared the driving duties when going from Tennessee to North Carolina. Therefore, it is clear that Barnett accepted the facts as set forth in the plea agreement only after carefully reviewing and correcting them. To the extent that the facts set forth in the witness statements may be inconsistent with those from the plea agreement, Barnett remains bound by his answers from the plea colloquy. See id.

Barnett also contends that counsel never informed him that he could receive a term of supervised release as part of his sentence. However, the plea agreement specifically provided that Barnett could receive up to a maximum period of life on supervised release. Further, the district court reiterated this possibility during the plea hearing, and Barnett acknowledged his understanding of the potential sentence. Therefore, Barnett clearly knew that he could receive a life term of supervised release, even if his counsel did not inform him of that fact.

Barnett next maintains that he was coerced into pleading guilty by his counsel. It is not clear how counsel coerced Barnett, although he appears to rely in part on her failure to provide him with the witness statements. Regardless, he admitted at the plea hearing that no one had put any pressure on him to plead guilty, and he remains bound by that answer. See id.

Lastly, Barnett argues that his replacement counsel provided ineffective assistance. Prior to sentencing, Barnett was appointed new counsel, who also represented him on appeal. Counsel refused to challenge the district court's denial of his motion to withdraw his guilty plea on appeal. Since this underlying claim is without merit, Barnett has not made a substantial showing that appellate counsel was ineffective by failing to raise it in his direct appeal. See Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013).

Accordingly, this court DENIES Barnett a COA.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk