United States District Court, D. Arizona
TO THE
HONORABLE DAVID G. CAMPBELL, SENIOR U.S. DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
Don
Milton Burns (“Movant”) is an inmate detained at
the Phoenix, Arizona Federal Correctional Institution. On
October 30, 2017, he filed a Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255 (hereinafter
“Motion”). (Doc. 1)[1] Respondent filed its response
(Doc. 8), after which Movant filed a reply (Doc. 14). For the
reasons set forth below, the undersigned Magistrate Judge
recommends the Court deny the Motion and dismiss it with
prejudice.
I.
BACKGROUND
On
December 1, 2015, Movant was indicted on a count of second
degree murder pursuant to 18 U.S.C. §§ 1153 and
1111 (CR Doc. 10 at 1). Subsequently, Movant waived
prosecution by indictment and consented to proceed under
information charging him with a count of Voluntary
Manslaughter pursuant to 18 U.S.C. §§ 1153 and
1112. (CR Docs. 35, 36) Movant entered into a plea agreement
in connection with a change of plea hearing held by this
Court on August 5, 2016. (CR Docs. 39, 51) The plea agreement
included a factual basis that Movant admitted to and conceded
could be proven by Respondent beyond a reasonable doubt, as
follows:
On or about March 26, 2015, on the Salt River Pima-Maricopa
Indian Reservation, in the District of Arizona, the defendant
and the victim named in the indictment engaged in a verbal
argument that escalated into a physical altercation. During
the said physical altercation, the victim threatened the
defendant's life. The defendant, then in the heat of
passion adequately provoked by fear and anger, and with
extreme disregard for human life, recklessly assaulted the
victim about [the] head and body causing multiple serious
injuries, including multiple fractures to the victim's
skull and spine, resulting in the victim's death.
(CR Doc. 51 at 6-7)
Movant
was sentenced on November 1, 2016. (CR Doc. 48) Applying an
upward departure from the sentencing guideline range, this
Court imposed a sentence of 160 months' imprisonment to
be followed by a term of 3 years of supervised release. (CR
Doc. 54 at 1)
II.
MOVANT'S HABEAS GROUNDS
Movant
asserts four grounds of ineffective assistance of counsel
(“IAC”). In Ground 1, Movant argues his counsel
failed to adequately investigate “the proper charges
that should have been brought” in his case, given that
he had “acted in self-defense from an attack initiated
by the deceased.” (Doc. 1 at 5) Movant contends in
Ground 2 that counsel failed to “investigate the
mitigating factors in this case” and further failed to
“properly investigate [the] law affecting the
Court's determination of proper application of a
sentencing variance(s).” (Id. at 6) In Ground
3, Movant complains that counsel did not make him properly
aware of “the nature of the charges against him or the
impact on the plea agreement he ultimately signed.”
(Id. at 7) Movant's Ground 4 arguments are that
counsel was ineffective at his sentencing hearing because he:
(1) did not allow Movant “proper allocution”; (2)
did not object to the Court's use of “otherwise
mitigating factors” against Movant; (3) did not object
to the Court's upward departure pursuant to U.S.S.G.
§ 4A1.3; and (4) did not object to the Court's
application of a sentencing variance (Id. at 8).
III.
MOVANT'S PLEA HEARING AND SENTENCING HEARING
Movant's
claims of IAC center on his counsel's representation
involving his plea agreement, his change of plea hearing, and
his sentencing hearing.
A.
Change of plea hearing
At his
change of plea hearing before a Magistrate Judge, Movant
attested under oath that he read through his plea agreement
carefully, line by line with his counsel, and that he
understood its terms. (CR Doc. 75 at 6) He further stated
that his counsel had explained the elements of the crime of
voluntary manslaughter with him and that he understood these
elements. (Id.) He attested his counsel had done a
good job for him “so far” and that he was
satisfied with his counsel's representation.
(Id. at 7) On questioning from the Magistrate Judge,
Movant declared that nothing had been promised to him other
than what was contained in the plea agreement. (Id.
at 8) The judge advised Movant that the maximum sentence he
could receive by pleading to the crime of involuntary
manslaughter was 15 years' imprisonment, and Movant
stated that he understood. (Id. at 9-10)
The
judge explicitly discussed language in the plea agreement
providing that there were no agreements “with regard to
the final sentence in this case, ” and that the parties
were “free to make any sentencing recommendations to
the Court that they believe are appropriate.” (CR Doc.
75 at 10) Movant said he understood. (Id.)
Movant
verified that his counsel had explained to him the United
States Sentencing Guidelines and sentencing factors the Court
would need to consider at the time of his sentencing. (CR
Doc. 75 at 11) Movant also agreed that his counsel had
discussed how the federal sentencing guidelines and factors
worked and might be applied to him in his case. (Id.
at 12) The judge explained that his counsel would make a
recommendation about what Movant's sentence should be,
but that the sentencing judge would not be bound to follow
such a recommendation. (Id. at 13) Movant attested
that he understood. (Id.) Movant specifically stated
he understood that the Court could sentence him to a term of
up to 15 years' imprisonment, and that after considering
the federal sentencing guidelines and sentencing factors, the
Court would be free to impose “any reasonable sentence
up to” 15 years' imprisonment. (Id.) The
Magistrate Judge asked Movant whether his counsel had
explained his “best estimate” about what sentence
Movant might receive. (Id. at 18) The judge then
cautioned Movant that the Court would not be bound by his
counsel's estimate, and Movant said he understood.
(Id.)
B.
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