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Bacon v. United States

United States District Court, D. Utah, Central Division

June 5, 2018

MICHAEL ALEXANDER BACON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING AND DISMISSING IN PART § 2255 MOTION

          DAVID NUFFER DISTRICT JUDGE.

         Petitioner Michael Alexander Bacon seeks to vacate, set aside, and correct his convictions and sentence under 28 U.S.C. § 2255.[1] He asserts three grounds for relief: (1) prosecutorial misconduct; (2) ineffective assistance of counsel; and (3) that the term of his supervised release exceeds the maximum term allowed by statute.[2] The government argues that § 2255 relief is precluded for prosecutorial misconduct and ineffective assistance of counsel because Mr. Bacon waived his collateral review rights.[3] But the government concedes that Mr. Bacon is entitled to a correction of his term of supervised release.[4]

         Because it plainly appears that Mr. Bacon is not entitled to relief under § 2255 for prosecutorial misconduct and ineffective assistance of counsel, his § 2255 Motion[5] is DENIED and DISMISSED in part. However, because the term of Mr. Bacon's supervised release exceeds the maximum term allowed by statute, his § 2255 Motion[6] is GRANTED in part.

         Contents

         BACKGROUND ............................................................................................................................ 2

         DISCUSSION ................................................................................................................................. 6

         Mr. Bacon waived his right to seek collateral review on the ground of prosecutorial misconduct .............................................................................................................. 7

         Mr. Bacon's allegations of prosecutorial misconduct fall within the scope of his collateral review waiver .............................................................................. 8

         Mr. Bacon knowingly and voluntarily waived his collateral review rights ............ 8

         Enforcing Mr. Bacon's collateral review waiver as to his allegations of prosecutorial misconduct will not result in a miscarriage of justice ........... 9

         Mr. Bacon is plainly not entitled to relief under § 2255 for ineffective assistance of counsel .................................................................................................................. 15

         Mr. Bacon is entitled to a correction of his term of supervised release ............................ 19

         ORDER ......................................................................................................................................... 20

         BACKGROUND

         On November 5, 2014, the government filed an Indictment[7] charging Mr. Bacon with four counts of Bank Robbery and one count of Credit Union Robbery, all violations of 18 U.S.C. § 2113(a). A status conference was subsequently held on June 5, 2015, before Magistrate Judge Paul M. Warner.[8] The purpose of the status conference was to determine the impact, if any, that certain federal civil cases filed by Mr. Bacon had on his Criminal Case.[9] In particular, Mr. Bacon had initiated a Civil Rights Action on April 15, 2015, which named the prosecutor in his Criminal Case as a defendant.[10]

         In his Civil Rights Action, Mr. Bacon alleged the loss or destruction of evidence favorable to his defense in his Criminal Case.[11] This evidence consisted of personal property that was seized by law enforcement at the time of Mr. Bacon's arrest.[12]

         At the status conference, Judge Warner stated that the issues raised in Mr. Bacon's Civil Rights Action “could be styled, if it were in the [C]riminal [C]ase, [as] a prosecutorial misconduct motion . . . .”[13] Judge Warner asked Mr. Bacon's counsel whether he had discussed these issues and their potential impact with Mr. Bacon, and whether counsel intended to raise them in the Criminal Case.[14] Mr. Bacon's counsel indicated that he had many discussions with Mr. Bacon regarding these matters, and that he did not intend to raise them in the Criminal Case at that time because the parties were in settlement negotiations.[15] Judge Warner also asked Mr. Bacon whether he understood his counsel's strategy and the potential impact the Civil Rights Action may have on the Criminal Case.[16] Mr. Bacon stated that he understood.[17]

         Based on counsel and Mr. Bacon's representations, Judge Warner indicated that he “d[id]n't see any reason why the [C]riminal [C]ase shouldn't just go forward.”[18] The parties agreed.[19] Judge Warner then stated:

[Mr. Bacon] can pick his places, so to speak. He can pick a deal, he can pick a trial, he can decide what he wants to do.[20]
I think Mr. Bacon needs to make a hard decision. It is a hard decision, by the way, Mr. Bacon, I understand that, but you need to make a decision.[21]
So I would advise you to listen very carefully to what [your counsel] tells you. I think he's a good lawyer and I think he's experienced. And I think that you have some hard decisions to make, but I don't think delaying the decision making process is going to help.[22]

         Following the status conference, the parties entered a Plea Agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C).[23] A combined change of plea and sentencing hearing was then held on June 29, 2015.[24] At the hearing, Mr. Bacon was sworn and posed questions in compliance with Rule 11.[25] This included advising Mr. Bacon of his rights and the consequences of pleading guilty.[26] The questioning specifically addressed Mr. Bacon's waiver of rights and limitations in challenging his conviction and sentence.[27] Mr. Bacon stated that he had discussed these matters with his counsel and understood.[28] And he moved forward with his guilty pleas.[29]

         Pursuant to the Plea Agreement, Mr. Bacon pleaded guilty to two counts of Bank Robbery and one count of Credit Union Robbery, all violations of 18 U.S.C. § 2113(a).[30] The Plea Agreement contained the following representations from Mr. Bacon:

No one has made threats, promises, or representation to me that have caused me to plead guilty, other than the provisions set forth in this agreement.[31]
I have discussed this case and this plea with my lawyer as much as I wish, and I have no additional questions.[32]
I am satisfied with my lawyer.[33]
My decision to enter this plea was made after full and careful thought; with the advice of counsel; and with a full understanding of my rights, the facts and circumstances of the case and the consequences of the plea.[34]
I have no mental reservations concerning the plea.[35]

         The Plea Agreement also contained the following waiver of Mr. Bacon's collateral review rights:

I also knowingly, voluntarily and expressly waive my right to challenge my sentence . . . in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255, except on the issue of ineffective assistance of counsel.[36]

         Based on his guilty pleas, and consistent with the parties' stipulated term of imprisonment, [37] Mr. Bacon was sentenced to a prison term of 80 months.[38] Mr. Bacon was also sentenced to a 60-month term of supervised release.[39]

         Nearly one year later, on June 27, 2016, Mr. Bacon filed a § 2255 Motion arguing that his convictions and sentence should be set aside and vacated because of prosecutorial misconduct and ineffective assistance of defense counsel.[40] Mr. Bacon also argued that his 60-month term of supervised release must be corrected because it exceeds the maximum term allowed by statute.[41]

         In responding to Mr. Bacon's § 2255 Motion, the government argued that § 2255 relief is precluded for prosecutorial misconduct and ineffective assistance of counsel because Mr. Bacon waived his collateral review rights in his Plea Agreement.[42] But the government conceded that Mr. Bacon is entitled to a correction of his term of supervised release.[43]

         DISCUSSION

         For all motions brought under 28 U.S.C. § 2255, notice of the motion must be provided to the government and a hearing must be held, “[u]nless the motion and files and records of the case conclusively show that the [movant] is entitled to no relief . . . .”[44] And “[i]f it plainly appears from the [§ 2255] motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the [examining] judge must dismiss the motion and direct the clerk to notify the moving party.”[45]

         Mr. Bacon waived his right to seek collateral review on the ground of prosecutorial misconduct

         Mr. Bacon argues that his convictions and sentence should be set aside and vacated because of prosecutorial misconduct.[46] Mr. Bacon's allegations of prosecutorial misconduct include:

• the government and its agents failed to preserve and produce potentially exculpatory and probative evidence that was seized at the time of Mr. Bacon's arrest;
• the prosecutor had a conflict of interest based on the filing of Mr. Bacon's Civil Rights Action, which named the prosecutor as a defendant;
• the government permitted Mr. Bacon to be sentenced to a term of supervised release that exceeded the maximum term allowed by statute;
• the government caused prejudicial and unnecessary delay in bringing Mr. Bacon before the court following his arrest; and
• the government failed to inform the grand jury that potentially exculpatory and probative evidence was not preserved.[47]

         The government argues that Mr. Bacon is not entitled to relief because he waived his § 2255 rights in his Plea Agreement.[48]

         “Given the importance of plea bargaining to the criminal justice system, [courts] generally enforce plea agreements and their concomitant waivers of [collateral review] rights.”[49] In reviewing a § 2255 motion after a defendant has entered a plea agreement that contains a waiver of collateral review rights, a three-prong analysis is employed to determine:

(1) whether the disputed [issue] falls within the scope of the waiver of [collateral review] rights; (2) whether the defendant knowingly and voluntarily waived his [collateral review] rights; and (3) whether enforcing the waiver would result in a miscarriage of justice . . . .[50]

         Therefore, if the disputed issue falls within the scope of the defendant's waiver and the defendant knowingly and voluntarily entered the waiver, then the waiver is enforceable as to the disputed issue, unless the enforcement of the waiver would result in a miscarriage of justice.

         Mr. Bacon's allegations of prosecutorial misconduct fall within the scope of his collateral review waiver

         “In determining a waiver's scope, [courts] will strictly construe [collateral review] waivers and any ambiguities in these agreements will be read against the [g]overnment and in favor of a defendant's [collateral review] rights.”[51]

         Mr. Bacon's collateral review waiver is broad-applying to “any collateral review motion . . . except on the issue of ineffective assistance of counsel.”[52] There is no question that Mr. Bacon's allegations of prosecutorial misconduct fall squarely within the scope of his waiver.

         Mr. Bacon knowingly and voluntarily waived his collateral review rights

         When determining whether a collateral review waiver is knowing and voluntary, courts “examine whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily” and whether “an adequate Federal Rule of Criminal Procedure 11 colloquy” is given.[53]

         In his Plea Agreement, Mr. Bacon expressly represented that he voluntarily entered the agreement after receiving satisfactory advice from counsel, [54] with a full understanding of his rights, the facts and circumstances of the case, and the consequences of his plea.[55] The Plea Agreement also states that Mr. Bacon knowingly, voluntarily, and expressly waived his collateral review rights.[56] Additionally, Mr. Bacon was given an adequate Rule 11 colloquy at his change of plea and sentencing hearing.[57] And he affirmatively stated that he understood his rights and the waivers and limitations set forth in his Plea Agreement, and that he voluntarily agreed to plead guilty.[58]

         Based on this record, Mr. Bacon knowingly and voluntarily entered the Plea Agreement, and he knowingly and voluntarily waived his collateral review rights.

         Enforcing Mr. Bacon's collateral review waiver as to his allegations of prosecutorial misconduct will not result in a miscarriage of justice

         A “miscarriage of justice” occurs only: “(1) where the district court relied on an impermissible factor such as race, (2) where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, (3) where the sentence exceeds the statutory maximum, or (4) where the waiver is otherwise unlawful.”[59]

         Mr. Bacon argues that the second, third, and fourth miscarriage of justice circumstances apply to invalidate his collateral review waiver.[60] His arguments are without merit.

         Mr. Bacon's counsel was not ineffective in connection with the negotiation of Mr. Bacon's collateral review waiver

         Mr. Bacon's § 2255 Motion alleges ineffective assistance of counsel.[61] But his allegations are generalized-directed at his counsel allowing him to enter the Plea Agreement, rather than conducting an adequate investigation or preparing and raising defenses.[62] He alleges his counsel failed to seek dismissal of the Criminal Case based on the government's delay in bringing him before the court and its failure to preserve and produce evidence. And he alleges his counsel failed to object to the prosecutor's potential conflict of interest.[63] These allegations do not relate to the negotiation of Mr. Bacon's collateral review waiver, and they do not suggest that Mr. Bacon's counsel was ineffective in connection with the negotiation.

         It was not until a Supplemental Reply on his § 2255 Motion that Mr. Bacon made any assertion regarding his counsel being ineffective in negotiating his collateral review waiver.[64]Mr. Bacon asserted that his counsel advised him that the collateral review waiver would not prevent him from later raising allegations of prosecutorial misconduct or due process violations.[65] This assertion is untimely and not credible.

         Mr. Bacon sought, and was granted leave, “to supplemental his Reply to make the transcripts of the June 5, 2015 and April 20, 2016 hearings in his underlying [C]riminal [C]ase part of the record in this case.”[66] He did not seek, and was not granted leave, to file a supplemental brief containing previously unraised factual allegations and legal arguments regarding out-of-court discussions he had with counsel. The assertions and argument within Mr. Bacon's Supplemental Reply were not authorized and are untimely.

         Additionally, Mr. Bacon's assertions regarding his counsel's advice and his belief that the collateral review waiver did not apply to his prosecutorial misconduct and due process allegations are contradicted by the record of his Criminal Case. At the June 5, 2015 status conference, Judge Warner had a lengthy discussion with Mr. Bacon and his counsel regarding Mr. Bacon's options to raise defenses and go to trial, or to enter a plea deal.[67] This discussion specifically addressed Mr. Bacon's allegations of prosecutorial misconduct and due process violations. Mr. Bacon affirmed that he understood.[68]

         Then, at his change of plea and sentencing hearing, Mr. Bacon stated he “wanted to do a defense” but decided to plead guilty after being advised that it “wasn't a good idea.”[69] He indicated that he had enough time to think about pleading guilty, and he was sure that it was what he wanted to do.[70] He affirmed that he was not promised anything, or threatened or pressured, to get him to enter a guilty plea.[71] He also stated he understood that by pleading guilty the government would not have to prove its case against him;[72] he would not have the opportunity to call defense witnesses or confront government witnesses;[73] and his right to appeal and challenge his convictions and sentence would be substantially limited.[74] And he affirmed that he had read and understood the terms of his Plea Agreement, and that he did not have any further questions.[75]

         In his Plea Agreement, Mr. Bacon represented he understood that he had the right to plead “not guilty” and have a trial on the charges against him, and that by pleading guilty, he would not have a trial of any kind.[76] He represented that he knowingly, voluntarily, and expressly waived his rights to appeal and file collateral review motions.[77] And he represented that he understood the only exceptions to these waivers are that he could:

• withdraw his guilty plea only if the Plea Agreement was not accepted, or if he was sentenced to a term of imprisonment other than 80 months;[78]
• appeal only if his sentence was greater than the sentence set forth in the Plea Agreement;[79] and
• file a collateral review motion only on the issue of ineffective assistance of counsel.[80]

         Finally, Mr. Bacon represented that he had discussed the case and his plea with counsel as much as he wished; had a full understanding of his rights, the facts and circumstances of the case, and the consequences of his guilty plea; and that he did not have additional questions and did not wish to make changes to the Plea Agreement.[81]

         Based on this record, Mr. Bacon was adequately advised of, and knew and understood, the scope of his collateral review waiver. Mr. Bacon made a knowing and voluntary choice to enter the Plea Agreement and to waive his right to raise defenses in his Criminal Case and on appeal and collateral review. His late assertions regarding his counsel's advice and his misunderstanding of the collateral review waiver's scope are not credible. Mr. Bacon has simply come to regret his choice to forego raising defenses in his Criminal Case. But this regret does not equate to ineffective assistance of counsel in connection with the negotiation of his waiver of collateral review rights. Therefore, the second miscarriage of justice circumstance does not apply to invalidate Mr. Bacon's collateral review waiver.

         The term of Mr. Bacon's supervised release does not invalidate his collateral review waiver as to prosecutorial misconduct

         Mr. Bacon's alleges that the government permitted him to be sentenced to a term of supervised release that exceeded the maximum term allowed by statute.[82] However, a prosecutor is not the advocate of a criminal defendant, and is not obliged to raise arguments or objections on a defendant's behalf.[83] Therefore, Mr. Bacon's allegation cannot form a basis for invalidating his collateral review waiver as to prosecutorial misconduct.[84] The third miscarriage of justice ...


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