FERLANDO CARMISE MIMS v. United States of America

Birmingham, AL - Criminal defense lawyer represented defendant with a motion to vacate, set aside, or correct a sentence for conspiring to possess with the intent to distribute and distribute a mixture and substance containing a detectable amount of heroin, cocaine hydrochloride, and fentanyl charge.

On September 28, 2016, Mims was charged with five other defendants in a

six-count indictment. The indictment alleged that Mims conspired to possess with

the intent to distribute and distribute a mixture and substance containing a detectable

amount of heroin, cocaine hydrochloride, and fentanyl, each a controlled substance,

in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), and 846. (Doc. 1 in United States

v. Ward et al., 2:16-cr-00303-LSC-JHE-2.) A superseding indictment was returned

against him on October 26, 2016. On November 9, 2016, Mims initially appeared on

the charges and was arraigned. He pled guilty, pursuant to a written plea agreement,

to all charges against him on February 2, 2017. Specifically, Mims pled guilty to the

following: Count 1 – conspiracy to possess with the intent to distribute and

distribution of a mixture and substance containing one thousand grams or more of a

detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), and

846; Counts 2 – 3, 6–10, and 13 – possession with the intent to distribute a mixture

and substance containing a detectable amount of heroin or fentanyl, in violation of

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21 U.S.C. §§ 841(a)(1) & (b)(1)(C); Counts 17-24, 26, 31, 33, and 34 – use of a

communications facility to commit a felony drug trafficking crime, in violation of 21

U.S.C. § 843(b); and Count 55 – carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c). (Doc. 135 in United States v.

Ward et al., 2:16-cr-00303-LSC-JHE-2.) The plea agreement contained an appeal

waiver subject to some exceptions, including claims for ineffective assistance of

counsel.

Mims was sentenced on July 27, 2017. He was sentenced to 121 months

imprisonment on all the counts except for Count 55, with each count to run

concurrent to each other. On Count 55, the Court ordered a consecutive 60-month

sentence. In total, Mims received 181 months imprisonment and lifetime supervised

release. Mims did not appeal. He remains in custody.

III. Timeliness and non-successive Nature of Mims' Section 2255 Motion

The Court entered its Judgment and Commitment Order on July 28, 2017.

(Doc. 246 in United States v. Ward et al., 2:16-cr-00303-LSC-JHE-2.) Mims did not

file an appeal. His conviction thus became final fourteen days later, on August 12,

2017. See, e.g., Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Mims

filed the § 2255 motion on July 16, 2018, which is within one year of the date which

his conviction became final. The Eleventh Circuit applies the "mailbox rule” to

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deem a prisoner's § 2255 motion to have been filed upon the "date that he delivered

it to prison authorities for mailing, presumptively, . . . the day that he signed it.”

Jones v. United States, 304 F.3d 1035, 1038 n.7 (11th Cir. 2002) (per curiam). Thus,

the motion is timely.

Mims has not filed a previous § 2255 motion. The motion is not "second or

successive” within the meaning of the Antiterrorism and Effective Death Penalty

Act of 1996. Dodd v. United States, 545 U.S. 353, 358 (2005).

IV. Standard

In litigation stemming from a § 2255 motion, "'[a] hearing is not required on

patently frivolous claims or those which are based upon unsupported

generalizations. Nor is a hearing required where the . . . [movant's] allegations are

affirmatively contradicted by the record.'” Holmes v. United States, 876 F.2d 1545,

1553 (11th Cir. 1989) (quoting Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir.

1979)).

However, it is appropriate for the Court to conduct an evidentiary hearing if,

"'accept[ing] all of the . . . [movant's] alleged facts as true,'” the movant has

"'allege[d] facts which, if proven, would entitle him to relief.'” Diaz v. United

States, 930 F.2d 832, 834 (11th Cir. 1991) (internal citations omitted).

V. Discussion

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Mims asserts four grounds for ineffective assistance of counsel in his § 2255

motion. An evidentiary hearing is necessary before this Court can resolve his first

claim, but the remaining three assertions are meritless and will be dismissed without

a hearing.

A. A limited evidentiary hearing is warranted on Mims's claim that his

defense counsel was ineffective for failing to file a direct appeal on

his behalf

Mims asserts that his defense counsel's performance was constitutionally

deficient because he failed to file a notice of appeal when he requested one after

sentencing. Mims also claims that his family tried to contact his attorney for the

purposes of filing an appeal. However, Mims's attorney, Mr. Kevin Roberts, denies

Mims's assertion. (Roberts Affidavit, Doc. 5-1.) Mr. Roberts assertsthat "Mr. Mims

never asked” him to appeal "his conviction or any aspect of his sentence.” (Id.)

Additionally, Mr. Roberts states that he "never heard from any member of his

family” regarding his appeal. (Id.) Further, the Government's brief asserts that Mr.

Roberts routinely files appeals on behalf of clients who instruct him to do so.

Mims waived certain rights when he entered into his guilty plea, but he did

not waive the right to raise a claim of ineffective assistance of counsel on appeal or

on collateral review. Moreover, claims of ineffective assistance of counsel may be

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raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500,

504 (2003).

For a convicted defendant's claim of ineffective assistance of counsel to

warrant post-conviction relief, two components must be present—deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate deficient performance, the defendant must show that counsel's

representation fell below an objective standard of reasonableness. Id. at 688. To

demonstrate prejudice, the defendant must show that there is a reasonable

probability that, but for counsel's deficient performance, the result of the proceeding

would have been different. Id. at 694. The court need not "address both components

of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.

In determining whether an attorney's performance fell below the objective

standard of reasonableness, the court is highly deferential to counsel's decisions and

must keep in mind that "a fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged performance, and to evaluate the conduct

from counsel's perspective at the time.” Strickland, 466 U.S. at 689. The court must

also indulge a strong presumption that counsel's performance falls within the "wide

range of reasonable professional assistance.” Id. When seeking to overcome this

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presumption, a movant cannot rely on bare accusations and complaints, but instead

"must identify the acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment.” Id. at 690.

A criminal defense lawyer is not under a per se constitutional obligation to

consult with his or her client about an appeal. Otero v. United States, 499 F.3d 1267,

1270 (11th Cir. 2007). The Eleventh Circuit has found that there is only a

"constitutionally imposed duty to consult with the defendant about an appeal when

there is a reason to think either (1) that a rational defendant would want to appeal

(for example, because there are non-frivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he was interested in

appealing.” Id. at 480. In determining whether there was a duty to consult, courts

should consider (1) whether the conviction follows a guilty plea, (2) whether the

defendant received the sentence he or she bargained for, and (3) whether the plea

agreement expressly waived some or all appeal rights. Id.

However, the Eleventh Circuit has held "that a lawyer who disregards

instructions from his client to appeal has acted 'in a manner that is professionally

unreasonable.'” Gomez-Diaz v. United States, 433 F.3d 788, 789 (11th Cir. 2005)

(quoting Flores-Ortega, 528 U.S. at 477). In that situation, the petitioner does not

have to establish prejudice beyond showing that but for counsel's deficient conduct,

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he would have appealed. Id. at 792-93; Flores-Ortega, 528 U.S. at 486, ("[I]t is unfair

to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical

appeal might have had merit . . . Rather, we require the defendant to demonstrate

that, but for counsel's deficient conduct, he would have appealed.”). Further, the

appeal waiver does not establish an absence of prejudice for ineffective assistance

purposes. See Gomez-Diaz, 433 F.3d at 793 (favorably citing United States v. Garrett,

402 F.3d 1262, 1266-67 (10th Cir. 2005) (holding that although the defendant's

"appellate rights have been significantly limited by his waiver, . . . the waiver does

not foreclose all appellate review of his sentence. If [the defendant] actually asked

counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a

delayed appeal. This is true regardless of whether, from the limited perspective of

collateral review, it appears that the appeal will not have any merit.”)).

On the other hand, guilty pleas tend to indicate that the defendant is

"interested in seeking an end to the judicial proceedings.” Otero, 499 F.3d at 1270.

In Otero, the defendant pled guilty via a plea agreement that included a broad appeal

waiver. 499 F.3d at 1270. The defendant then filed a pro se motion pursuant to 28

U.S.C. § 2255, alleging his counsel was ineffective for failing to file a notice of appeal

after the defendant insisted he do so. Id. at 1269. Defense counsel denied the

defendant's assertions. Id. The court held an evidentiary hearing and found defense

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counsel's testimony to be credible and the defendant's testimony not to be credible.

Id. The court assumed, however, for the purposes of argument that defense counsel

failed to consult with the defendant about an appeal. Id. at 1270. The court found

such a failure not to be ineffective because the defendant's conviction was the result

of a guilty plea; the sentence he received was within the range of what his lawyer had

advised him was possible; his plea agreement included an appeal waiver with limited

exceptions; he had no argument that any of the exceptions applied which meant that

any appeal taken by him would have been frivolous and would have been an appeal

no rational defendant would have taken. Id. at 1270-71.

The instant case is factually analogous to Otero. Here, Mims pled guilty

pursuant to a plea agreement with a broad appeal waiver. Mims has no plausible

arguments that any of the exceptions to the waiver apply, and thus any appeal he may

have filed would have been frivolous. Like the defendant in Otero, Mims received a

sentence that was within the range of what his lawyer would have advised him was

possible. Therefore, there was no reason for defense counsel to believe that Mims

would want to appeal. Thus, the only issue is whether Mims reasonably

demonstrated to his counsel that he was interested in appealing.

Because Mims's assertions contradict Mr. Roberts's assertion, this claim

cannot be resolved on the existing record. The Court will hold a limited evidentiary

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hearing for the purpose of determining whether Mims asked Mr. Roberts to file an

appeal. Mims is advised that, should this Court find in his favor after an evidentiary

hearing is held, the only relief available to Mims is the ability to file a delayed direct

appeal.

B. Mims's claim that his defense counsel was ineffective for failing to

file a motion to suppress evidence lacks merit

With regard to claims about a failure to file a motion to suppress, the Strickland

two-prong test for ineffective assistance of counsel turns on the viability of the

motion to suppress. Arvelo v. Sec'y, Fla. Dep't of Corr., 788 F.3d 1345, 1348 (11th Cir.

2015). A lawyer's conduct falls outside of the reasonableness and professionalism

standard if failure to pursue a motion to suppress would have affected the outcome

of the case had the defendant rejected the plea and gone to trial instead. Premo v.

Moore, 562 U.S. 115, 124 (U.S. 2011).

Mims presumably asserts that his counsel was ineffective for failing to file a

motion to suppress with regard to Count 55, which alleged a violation of 18 U.S.C. §

924(c). To support his allegation, Mims wrote that "because the gun was purchased

for drugs, it was not used to facilitate drug trafficking. I bought the gun and it was

not found near drug proceeds nor was it present to protect me during any drug

deals.” (Doc. 1 at 5.)

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However, Mims does not identify what evidence he believes should have been

suppressed if a motion had been filed on his behalf. Nothing in Mims's argument

would support a motion to suppress any evidence against him on Count 55. Instead,

Mims appears to argue that he does not believe that the facts of his case supported

conviction on Count 55, which is a separate issue.

However, contrary to Mims' claim, the record provided more than adequate

support for a finding of guilt on Count 55. The facts in the plea agreement support

the finding of guilt. (Doc. 135 at 4-9, in United States v. Ward et al., 2:16-cr-00303-

LSC-JHE-2.) The facts contained therein reveal that Mims was intercepted over a

wiretap discussing his plan to exchange drugs for a Ruger 9mm pistol. (Id.) Later that

day, and after the exchange, Mims and a coconspirator were pulled over by

Birmingham Police. (Id.) After Mims was removed from the vehicle by police, he

fled on foot as two small baggies containing fentanyl fell out of his shoes. (Id.) In

searching the vehicle, officers found the Ruger 9mm under the driver's seat. (Id.)

These facts clearly support a conviction to the charge. In Smith v. United States, 508

U.S. 223 (1993), the Supreme Court affirmed the Eleventh Circuit's holding that,

"[b]oth a firearm's use as a weapon and its use as an item of barter fall within the

plain language of § 924(c)(1) so long as the use occurs during and in relation to a drug

trafficking offense.” Id. at 240.

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Moreover, the plea transcript makes clear that Mims understood the charge

against him in Count 55 and entered a knowing and voluntary plea to it. Near the end

of the consent colloquy, the Court specifically addressed Count 55, as follows:

THE COURT: ARE YOU WANTING TO PLEAD

GUILTY BECAUSE YOU ARE GUILTY

IN EACH ONE OF THESE COUNTS

THAT WE HAVE TALKED ABOUT?

THE DEFENDANT: YES, SIR.

THE COURT: INCLUDING COUNT 55?

THE DEFENDANT: YES, SIR.

(Doc. 5-2.) Habeas relief is not due to be granted on this claim.

C. Mims's involuntary guilty plea claim lacks merit

Mims maintains that his Sixth Amendment right to a jury trial was violated

because his "[c]ounsel refused to subject the case to adversarial challenges” and

"refused to allow him to do anything but plead guilty.” (Doc. 1 at 8.) Mims offers no

additional information in support of these generic statements, including no specific

information about how his plea was unlawfully induced or why it was not voluntarily

made.

Guilty pleas that are induced by promises or threats or those that are not

entered into knowingly are subject to collateral attack on the basis of due process.

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Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014); United States

v. Brown, 117 F.3d 471, 476 (11th Cir. 1997).

At the same time, plea bargaining retains its benefits of certainty and

efficiency only if dispositions by guilty plea are accorded a great

measure of finality. While § 2255 exists to safeguard a person's freedom

from detention in violation of constitutional guarantees, the Eleventh

Circuit has observed that more often than not a prisoner has everything

to gain and nothing to lose from filing a collateral attack upon his guilty

plea. As a result, the representations of the defendant, lawyer, and the

prosecutor at a plea hearing, as well as any findings made by the judge

accepting the plea, constitute a formidable barrier in any subsequent

collateral proceedings. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as

are contentions that, in the face of the record, are wholly incredible.

Winthrop-Redin, 767 F.3d at 2016 (internal quotations and citations omitted).

Mims's conclusory allegation fails to provide specific facts indicating that his

plea was involuntary. As an initial matter, Mims signed and initialed every page of a

23-page written plea agreement that clearly set out, among other things, the charges

and their maximum penalties, the sentence the Government would recommend,

Mims's waiver of certain appeal and post-conviction rights, and the advisory nature

of the Sentencing Guidelines. The Plea Agreement also contained the following

provisions:

XIV. DEFENDANT'S UNDERSTANDING

I have read and understand the provisions of this agreement consisting

of twenty-three pages. I have discussed the case and my constitutional

and other rights with my lawyer. I am satisfied with my lawyer's

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representation in this case. By pleading guilty, I understand that I will

be waiving and giving up my right to continue to plead not guilty, to a

trial by jury, to the assistance of counsel at that trial, to confront, crossexamine, or compel the attendance of witnesses, to present evidence in

my behalf, to maintain my privilege against self-incrimination, and to

the presumption of innocence. I agree to enter my plea as indicated

above on the terms and conditions set forth herein.

NO OTHER PROMISES OR REPRESENTATIONS HAVE

BEEN MADE TO ME BY THE PROSECUTOR, OR BY

ANYONE ELSE, NOR HAVE ANY THREATS BEEN MADE OR

FORCE USED TO INDUCE ME TO PLEAD GUILTY.

. . . .

I have personally and voluntarily placed my initials on every page of this

Agreement and have signed the signature line below to indicate that I

have read, understood, and approved all of the provisions of this

Agreement, both individually and as a total binding agreement.

XV. COUNSEL'S ACKNOWLEDGMENT

I have discussed this case with my client in detail and have advised my

client of all of my client's rights and all possible defenses. My client has

conveyed to me that my client understands this Agreement and

consents to all its terms. I believe the plea and disposition set forth

herein are appropriate under the facts of this case and are in accord with

my best judgment. I concur in the entry of the plea on the terms and

conditions set forth herein.

(Doc. 135 in United States v. Ward et al., 2:16-cr-00303-LSC-JHE-2.)

Further, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the

Court addressed Mims on the record and inquired about the voluntariness of his plea

and his understanding of its nature and consequences and made a finding that his

plea was knowingly and voluntarily entered. (Doc. 5-2.) To the extent Mims asserts

that his lawyer somehow induced him to plead guilty, his change of plea hearing

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testimony refutes that assertion. During the plea hearing, the Court asked Mims

multiple times whether he would like to go to trial; Mims refused each time. The

following exchange occurred:

THE COURT: LET'S TALK ABOUT YOUR LAWYER FOR A

MINUTE. WE ARE GOING TO TALK ABOUT

YOU BUT LET'S TALK ABOUT HIM. HOW

HAS HE DONE AS FAR AS AN ATTORNEY

GOES?

THE DEFENDANT: HE IS DOING HIS JOB. I JUST FEEL LIKE HE

AINT' TRYING TO HELP ME, FOR REAL.

THE COURT: WHAT HAS HE NOT DONE? HAS HE MET

WITH YOU?

THE DEFENDANT: YES, SIR. HE MET WITH ME, BUT IT JUST

LIKE HE WANTED ME TO PLEA OUT TO

SOMETHING I DIDN'T DO.

THE COURT: ALL RIGHT. WELL, YOU ARE WELCOME TO

TRY YOUR CASE. WOULD YOU LIKE TO TRY

YOUR CASE?

THE DEFENDANT: I DON'T WANT TO TRY IT. I JUST WANT TO

GET SOME BETTER HELP.

THE COURT: WELL, YOU HAVE GOT A REALLY

COMPETENT, GOOD LAWYER THERE. IF

YOU WANT TO TRY YOUR CASE, WE CAN

ACCOMMODATE YOU. WE CAN SET YOU

FOR TRIAL.

THE DEFENDANT: I DON'T WANT TO GO TO TRIAL. I JUST

WANT SOME BETTER HELP.

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THE COURT: I DON'T UNDERSTAND WHAT YOU WANT.

THE DEFENDANT: ANOTHER LAWYER OR SOMETHING.

THE COURT: ALL RIGHT. WHAT HAS HE NOT DONE?

WHAT HAS HE DONE? ARE YOU

COMPLAINING THAT HE DIDN'T GET YOU

A GOOD ENOUGH DEAL, IS THAT WHAT IT

IS?

THE DEFENDANT: NO, HE DOING HIS JOB. IT'S JUST LIKE, I BE

TRYING TO EXPLAIN TO HIM LIKE NOT

ABOUT THE CASE, ABOUT ANOTHER

CHARGE THAT HIM – I AM TRYING TO GET

HIM TO REALIZE THAT, TRYING TO SEE IF

THERE IS SOMETHING HE CAN DO ABOUT

IT.

THE COURT: ANOTHER CHARGE IN THIS CASE OR

ANOTHER CHARGE IN ANOTHER CASE?

THE DEFENDANT: IN THIS CASE.

THE COURT: OKAY. I JUST NEED TO KNOW, BECAUSE IF

YOU DIDN'T DO WHAT THEY ARE SAYING

YOU DID AND YOU WANT A TRIAL, I AM

NOT GOING TO TAKE A GUILTY PLEA IF

YOU DIDN'T DO WHAT THEY SAY YOU

DID.

SO, YOU TELL ME. ARE YOU SAYING THAT

YOU DID IT, YOU WANT TO PLEAD GUILTY

OR NOT? DOESN'T MATTER TO ME. I AM

HAPPY TO TRY YOUR CASE. I LIKE TRYING

CASES. WHEN DO WE HAVE IT SET,

MONDAY? IS IT MONDAY?

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[PROSECUTOR]: I DON'T KNOW THAT WE HAVE A SET

DATE, YOUR HONOR, BECAUSE THERE

WAS A WAIVER OF THE SPEEDY TRIAL ACT.

THE COURT: WELL, WE CAN SET YOU UP PROBABLY IN

ABOUT THREE WEEKS MAYBE AND TRY

YOUR CASE.

THE DEFENDANT: I DON'T WANT TO GO TO TRIAL. I JUST

WANT ANOTHER LAWYER.

THE COURT: WELL, I DON'T SEE A REASON TO GET YOU

ANOTHER LAWYER. YOU HAVE NOT TOLD

ME ANYTHING THIS MAN HAS DONE. HE IS

A GOOD ATTORNEY. I HAVE KNOWN HIM

FOR A LONG TIMENOW, AND HE DOES A

GOOD JOB. I HAVE NOT HEARD ANYTHING

HE HAS DONE. SO –

THE DEFENDANT: I JUST FEEL LIKE HE AIN'T TRYING TO

HELP ME.

THE COURT: OKAY. YOU WANT TO TRY THE CASE. A

MINUTE AGO YOU SAID "I DON'T WANT

TO PLEAD GUILTY TO SOMETHING I

DIDN'T DO.”

THE DEFENDANT: I SAID HE'S NOT UNDERSTANDING ABOUT

THE CASE. I WAS TELLING HIM ABOUT

ANOTHER CHARGE ABOUT SOMETHING I

CAN DO. I DIDN'T SAY THE CASE.

THE COURT: I DON'T UNDERSTAND. IF YOU DIDN'T DO

WHAT YOU ARE CHARGED WITH HERE –

THE DEFENDANT: I SAID ANOTHER CHARGE.

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THE COURT: AND I ASKED YOU THAT QUESTION. IS IT A

CHARGE IN THIS CASE?

THE DEFENDANT: YES, SIR. I SAID YES.

THE COURT: WELL –

THE DEFENDANT: THAT'S WHY I WANTED TO GET ANOTHER

LAWYER BECAUSE I FEEL LIKE SOMEBODY

ELSE WILL LISTEN TO ME.

THE COURT: OKAY. WELL, WE'LL TRY YOUR CASE,

OKAY? BECAUSE YOU ARE NOT

COMMUNICATING WITH ME ABOUT

WHAT CHARGE IT IS YOU SAY YOU DIDN'T

DO. THEY HAVE GOT YOU CHARGED WITH

COUNTS ONE, WHICH IS CONSPIRACY

COUNT, COUNTS TWO, THREE, SIX,

SEVEN, EIGHT, NINE, AND THIRTEEN.

COUNT 17 THROUGH 24, 26, 31, 33 AND 34,

AND COUNT 35.

MR. ROBERTS: JUDGE, IT'S COUNT 55 THAT CONCERNS

HIM. IT'S A DRUG CHARGE IN

CONNECTION WITH THE DRUG

TRAFFICKING OFFENSE. AND THAT'S THE

COUNT THAT HE HAS A CONCERN ABOUT.

THE COURT: OKAY. ALL RIGHT. I MEAN, I AM NOT

GOING TO FORCE YOU TO PLEAD GUILTY,

BUT I DON'T –

THE DEFENDANT: I DON'T WANT TO GET FORCED TO GO TO

TRIAL EITHER.

THE COURT: OKAY. WELL, YOU HAVE GOT TO DO ONE

OR THE OTHER, IT DOESN'T MATTER TO

ME. I AM HAPPY TO – WHY DON'T YA'LL

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TALK? BECAUSE I CAN'T GET INVOLVED,

THE LAW DOESN'T LET ME GET

INVOLVED IN PLEA NEGOTIATIONS

BETWEEN THE GOVERNMENT AND

DEFENDANT. OKAY. SO YOU'RE TELLING

ME THAT YOU DID NOT – YOU ARE SAYING

YOU ARE NOT GUILTY OF COUNT 55,

THAT'S WHAT YOU ARE TELLING ME,

RIGHT?

THE DEFENDANT: YES, SIR.

THE COURT: OKAY, WELL, GOVERNMENT ARE YOU

GOING TO ACCEPT THE PLEA FROM HIM

THAT DOESN'T INCLUDE COUNT 55?

[PROSECUTOR]: NO, YOUR HONOR.

THE COURT: WHEN CAN WE TRY THIS CASE? AND YOU

HAVE A RIGHT TO PLEAD GUILTY TO

EVERYTHING EXCEPT COUNT 55, AND

WE'LL TRY 55. BUT THE PLEA

AGREEMENT, THERE IS NO PLEA

AGREEMENT IF YOU DO THAT. DO YOU

UNDERSTAND WHAT I'M SAYING?

THE DEFENDANT: YES, SIR.

THE COURT: I AM NOT TELLING YOU THAT YOU HAVE

TO GO TO TRIAL BECAUSE YOU DON'T.

THE DEFENDANT: CAN I JUST TALK TO HIM FOR A MINUTE?

THE COURT: SURE.

(Doc. 5-2 at 5-10.) Mims and Mr. Roberts then met to discuss his plea again, and

after that, the following exchange occurred:

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THE COURT: ALL RIGHT. MR. MIMS, WE HAVE TAKEN A

BREAK TO ALLOW YOU TO TALK TO YOUR

LAWYER. WHAT DO YOU WANT TO DO?

THE DEFENDANT: PLEAD GUILTY.

THE COURT: I DON'T WANT YOU PLEADING GUILTY

NOW JUST BECAUSE YOU THINK THAT

THAT'S WHAT YOU NEED TO DO OR HAVE

TO DO. BECAUSE I AM GOING TO ASK YOU

AT THE END OF THIS, "DID YOU DO WHAT

THEY HAVE CHARGED YOU IN COUNT 55?”

IS WHAT THEY SAID YOU DID, WHAT YOU

DID. DO YOU UNDERSTAND ME?

THE DEFENDANT: YES, SIR.

THE COURT: NOW, ARE YOU SURE YOU WANT TO

PLEAD GUILTY?

THE DEFENDANT: YES, SIR.

(Doc. 5-2 at 10-11.)

Here, Mims has presented nothing more than conclusory allegations that his

due process rights were violated. He has fallen far short of the standard for "specific

and detailed factual assertions.” Further, Mims's conclusory allegations are

contradicted by the record, including Mims and his counsel's own representations

at the plea hearing and the findings of the Court. Mims's second ground for relief

does not necessitate an evidentiary hearing and is due to be denied.

D. Mims's ineffective assistance of counsel claims regarding his

sentencing proceedings lack merit

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Mims's first allegation is that his counsel withdrew previously-filed objections

to his PSR without Mims's permission. Mr. Roberts's affidavit states that he and

Mims discussed the PSR on May 26, 2017. Mims correctly asserts that Mr. Roberts

filed objections to the PSR on his behalf on June 5, 2017. However, Mr. Roberts's

affidavit also states that during a meeting on June 22, 2017, Mims advised him to

withdraw the objections to the PSR. He withdrew the objections the next day. Mims

now asserts that Mr. Roberts withdrew them without his permission. Even assuming

this is true, Mims cannot show that he was prejudiced by Mr. Roberts's action

because this Court would have overruled the objections in any event.

The first objection presented by Mr. Roberts related to paragraphs 95 and 102

of the PSR, which suggested a 2-level increase for Obstruction of Justice pursuant to

USSG § 3B1.1(c). The PSR recounted the facts that, when law enforcement initiated

a traffic stop on Mims's car and the lights and sirens were engaged, Mims jumped

out of his moving car, resulting in a crash with another car that was in the carpool

line at an elementary school. Children and other individuals were outside the school

and present at the time of the crash. Had the objection not been withdrawn earlier,

the Court would have overruled the objection, considering the facts that he tried to

escape by jumping from his vehicle resulting in a car crash, near a school, with

children present, and a firearm present in the car.

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The second objection was in relation to paragraph 101 of the PSR, which

discussed Mims's role in the offense pursuant to USSG § 3C1.2. According to the

PSR, both the probation officer and DEA agent involved in the case asserted that

Mims held a "manager or supervisor” role with his involvement in "LocWorld.”

Mims purchased substantial quantities of narcotics to supply street level dealers.

Additionally, he directed juveniles as "runners” for the heroin. The Court would

have overruled this objection had it not been withdrawn.

Mims also makes several other conclusory assertions in his habeas petition

related to his sentence. First, Mims claims that lifetime supervised release is "too

much” for a first-time drug offender. However, criminal defendants may not raise

sentencing error claims in a § 2255 petition. United States v. Addonizio, 442 U.S. 178,

185 (1979)).

Second, Mims asserts that Mr. Roberts "failed to request a safety valve.” The

"safety valve” provisions of the U.S. Sentencing Guidelines are codified in 18

U.S.C. § 3553 and allow judges to disregard mandatory minimum sentencing with

respect to certain offenses provided the defendant meets five elements. The

elements are that the defendant does not have more than four criminal history points,

did not use violence or firearms in commission of the offense, did not cause seriously

bodily injury or death in commission of the offense, did not serve as a "manager or

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leader” of others involved in the offense, and provided "substantial assistance” to

the government. See 18 U.S.C. § 3553(f). Because Mims does not meet all the

elements required for a motion pursuant to 18 U.S.C. § 3553(f), this Court would not

have granted such relief had Mr. Roberts requested it. Accordingly, Mims cannot

show prejudice on this claim.

For the foregoing reasons, Mims’s § 2255 motion is due to be denied on all

claims except Mims’s claim of ineffective assistance of counsel as it relates to his

direct appeal. That claim isreserved for an evidentiary hearing. A separate order will be entered.



DONE and ORDERED on August 9, 2021