USA v. Tubbs et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN CURTIS STEVENSON, 	)
Petitioner, 	)
) 	CIVIL ACTION 16-00465-KD-MU
v. 	) 	CRIMINAL ACTION 14-00135-KD-13
)
UNITED STATES OF AMERICA, 	)
Respondent. 	)
ORDER
This action is before the Court on Petitioner John Curtis Stevenson’s’ Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Petition) (Doc. 724),1 the Government’s
Response (Doc. 732) and the Government’s Supplement (Doc. 745).
I. 	Background
Stevenson pleaded guilty in his criminal case on September 17, 2014 (Docs. 278, 294),
and judgment issued on September 22, 2015, sentencing him to a total of 82 months
imprisonment (Doc. 657, 680 (as amended)). Stevenson did not file an appeal.
On September 1, 2016, Stevenson filed a pro se Section 2255 petition, asserting that he
signed the guilty plea based on his attorney’s representation that doing so would result in
receiving only time for the amount of drugs he was responsible for, but “I still got a 10 year[]” –
claiming his attorney lied to him and misrepresented what would happen to him. 	(Doc. 724).
Stevenson seeks to vacate his sentence and to be sentenced, instead, “under the amount of drugs I
sign[] for in the proffer letter, or minor role.” (Id. at 13). In Response, the Government asserts
1 Stevenson is a federal prisoner proceeding pro se. “[C]ourts should construe a habeas petition filed pro se
more liberally….” See, e.g., Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir. 1989).
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that Stevenson’s motion is due to be denied without a hearing because he procedurally defaulted
his claims by failing to raise them on direct appeal. 	(Doc. 732). 	Stevenson was given the
opportunity to reply. (Doc. 725). To date, no reply has been filed by Stevenson.
On September 11, 2017, the Court ordered the Government to file a Supplement,
addressing Stevenson’s ineffective assistance of counsel claim. 	(Doc. 743). 	On September 21,
2017, the Government filed its Supplement, asserting that Stevenson’s ineffective assistance of
counsel claims fail because the record “plainly contradicts his claims and he has not established
prejudice.” (Doc. 745).
II. 	Discussion
Pursuant to 28 U.S.C. § 2255(a)-(b):
(a) A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
(b) ….. If the court finds that the judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open to collateral attack, or that
there has been such a denial or infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.
Habeas relief is an extraordinary remedy which “may not do service for a [ ] [direct]
appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). 	A petitioner who has waived or
exhausted his right to appeal is presumed to stand “fairly and finally convicted.” 	Id. at 164.
“[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral
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attack has remained far more limited...[A]n error of law does not provide a basis for collateral
attack unless the claimed error constituted a fundamental defect which inherently results in a
complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (internal
citation and quotation omitted). See also Burke v. United States, 152 F.3d 1329, 1331 (11th Cir.
1998) (“Nonconstitutional claims can be raised on collateral review only when the alleged error
constitutes a ‘fundamental defect which inherently results in the miscarriage of justice or an
omission inconsistent with the rudimentary demands of fair procedure[]’”) (internal citations
omitted). 	“A habeas petitioner must present a claim in clear and simple language such that the
district court may not misunderstand it.” 	Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir.
2013). However, the Court “liberally construe[s] petitions filed pro se.” Id.
Upon 	consideration, 	the 	Court 	ADOPTS 	as 	its 	own 	reasoning 	the 	Government’s
Response (as supplemented) (Doc. 732, 745) and finds that Stevenson is due no relief.2 Under
the procedural default rule, a petitioner “generally must advance an available challenge to a
criminal conviction or sentence on direct appeal or else the defendant is barred from presenting
that claim in a § 2255 proceeding.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.
2011) (quoting Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). 	Stevenson failed
to seek relief of any of his claims on direct appeal. Stevenson’s petition is due to be denied due to
his failure to show “cause and actual prejudice” or that he is “actually innocent[,]” as well as due
2 A district court may incorporate a party’s arguments to serve as its explanation for its ruling, so long as
those arguments, in conjunction with the record, provide the Court of Appeals an opportunity to engage in
meaningful review. United States v. Valencia-Trujillo, 462 Fed. Appx. 894, 897 (11th Cir. 2012). The Court finds
the Government’s Response (Doc. 732, 745) sufficient in this regard.
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to his valid appeal waiver. Bousley v. United States, 523 U.S. 614, 612 (1998); United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). See also e.g., Mills v. United States, 36 F.3d
1052, 1055 (11th Cir. 1994) (if available challenges to a federal conviction or sentence are not
advanced 	on 	direct 	appeal, 	those 	claims 	are 	procedurally 	defaulted 	in 	a 	Section 	2255
proceeding); United States v. Davis, 2010 WL 5239243, *3-4 (S.D. Ala. Dec. 14, 2010)
(concluding that a petitioner procedurally defaulted on his claim that his guilty plea was
involuntary because he failed to challenge it on direct review); Scott v. United States, 2008 WL
7258799, *19 (S.D. Ala. Nov. 3, 2008) (same).
Moreover, when a Section 2255 motion is filed collaterally challenging convictions
obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). See
also Bousley, 523 U.S. at 618 (“A plea of guilty is constitutionally valid only to the extent it is
‘voluntary’ and ‘intelligent[]’). Rule 11 of the Federal Rules of Criminal Procedure provides also,
that the government and the defendant “may discuss and reach a plea agreement.” Fed.R.Crim.P.
11(c)(1). A plea of guilty will be deemed voluntary, if before a guilty plea has been accepted, the
court addresses the defendant, under oath, “personally in open court[]” and determines that the
plea is voluntary and did not result from force, threats, or promises (other than promises in a plea
agreement. Fed.R.Crim.P. 11(b)(1)-(2). In the Eleventh Circuit, there is “a ‘strong presumption’
that statements made by the defendant during his plea colloquy are true…therefore, ‘when a
defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his
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statements were false.’” 	United States v. Cardenas, 230 Fed. Appx. 933, 935 (11th Cir. 2007)
(internal citation omitted).
At the plea colloquy, Stevenson stated that he had discussed his case and defenses with
his counsel and after doing so, was satisfied with the advice to plead guilty and counsel’s
representations in general. (Doc. 719 at 10-11). Stevenson agreed his plea agreement provides
that in return for his guilty plea, the Government will recommend he be sentenced at the low end
of the guidelines and that if the Government determines he substantially cooperated, they will
ask the Court to go below those guidelines. (Id. at 11-12). Stevenson agreed he was waiving his
right to appeal the sentence, with the only exceptions being if the Court went above the statutory
maximum or he received ineffective assistance of counsel. (Id. at 12-13).
Specifically, the record reveals as follows:
THE 	COURT: 	… 	did 	each 	of 	you 	discuss 	your 	case 	with 	your
attorney and discuss possible defenses to this case with your attorney?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	… after 	discussing 	possible 	defenses 	to 	this 	case,
are you satisfied with your attorney's advice that you plead guilty?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	…are 	you 	satisfied 	with 	your 	attorney's
representation of you in general?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: ….Your plea agreement provides that in return for your
guilty 	plea, 	the 	Government 	is 	going 	to 	recommend 	that 	you 	be 	sentenced 	at
the low end of the guidelines.
***
THE COURT: 	It also provides that you are given an opportunity,
if you want to, you don't have to ‑‑
***
THE 	COURT: 	‑‑ 	to 	cooperate. 	And 	if 	the 	U.S. 	Attorney's 	Office
determines that you have substantially cooperated, they are going to ask me
to go below those guidelines.
***
THE COURT: 	Is that the way you understand your plea agreement?
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***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	And do you understand that it is the Government who
determines 	whether 	you've 	substantially 	cooperated 	and 	not 	me? 	Do 	you
understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	…. you are waiving your right to appeal the sentence
that 	I 	give 	you. 	This 	is 	very 	important, 	so 	listen 	up. 	After 	I 	sentence
you, 	you're 	not 	going 	to 	be 	able 	to 	file 	a 	direct 	appeal 	or 	a 	collateral
appeal…
Do you understand?
***
THE 	COURT: 	I 	want 	to 	make 	sure 	you 	understand 	that. 	That's
probably 	one 	of 	the 	most 	important 	things 	I'm 	saying 	today. 	After 	I
determine your sentence, that's it.
***
THE COURT: 	Do you understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	Okay. 	And 	the 	only 	exception 	is 	if 	I 	go 	above 	the
guidelines, if I go above the statutory maximum, or you receive assistance of
counsel. 	Do you understand?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	Now, did you read that plea agreement and discuss it
with your attorney before you signed it?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	Okay. 	Did anybody promise you anything different or
something 	that's 	not 	included 	in 	that 	plea 	agreement? 	For 	instance, 	did 	a
law 	enforcement 	agent 	tell 	you, 	"Oh, 	for 	sure, 	you're 	going 	to 	get
cooperation" 	or 	something 	like 	that? 	Anything 	that's 	not 	in 	that 	plea
agreement?
***
DEFENDANT J. STEVENSON: 	No, ma'am.
***
THE COURT: 	Anybody force you to plead guilty?
***
***
DEFENDANT J. STEVENSON: 	No, ma'am.
***
THE COURT: 	Now, the maximum penalty for each of you ‑‑ each of you
are potentially facing a ten‑year mandatory minimum up to life ‑‑
***
THE 	COURT: 	‑‑ 	a 	$10 million 	fine, 	five‑year 	supervised 	release,
and $100 special assessment. 	Do you understand….
***
THE COURT: 	Mr. Stevenson?
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DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	….I'm 	telling 	them 	they 	are 	potentially 	facing 	a
mandatory minimum of ten years. 	You just need to know that.
Now, there are some of you that are pleading to two counts.
***
THE 	COURT:….Mr. Stevenson 	is 	pleading 	guilty 	to 	a 	money
laundering 	conspiracy 	charge, 	which 	carries 	a 	penalty 	of 	up 	to 	20 	years 	in
prison, 	$250,000 	fine, 	three 	years 	supervised 	release, 	and 	$100 	special
assessment. 	…You …. understand that?
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	Okay. 	Now, 	as 	to ‑‑ 	there 	are 	sentencing 	guidelines
that apply to your case. 	You went over those with your attorney?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	Those are just advisory. 	I'm not required to follow
those.
***
THE COURT: 	Do you understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	And 	also 	the 	estimate 	that 	was 	given 	is 	just 	that.
It's an estimate. 	We won't know what your guidelines are until we've done a
full background check of everything. 	Do you understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	Okay. 	Now, each of you have a right, as I'm saying,
to go to trial. 	You pled not guilty. 	We would have a trial. 	You would be
presumed innocent. 	The Government would have to prove each and every element
beyond 	a 	reasonable 	doubt. 	At 	trial, 	you 	would 	have 	the 	right 	to 	the
assistance 	of 	counsel. 	You 	would 	have 	the 	right 	to 	cross‑examine 	the
Government's witnesses. 	You'd have the right to compel witnesses to attend
the trial on your behalf.
You 	would 	have 	the 	right 	to 	choose 	to 	testify 	or 	not 	testify.
You'd have the right to ‑‑ if you chose not to testify, that fact couldn't be
used against you.
But by pleading guilty today, you are giving up all those rights,
and there's not going to be a trial. 	Do you understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	Is that what you want…
***
THE COURT: 	Mr. Stevenson?
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE COURT: 	How do you plead?
***
DEFENDANT J. STEVENSON: 	Guilty.
***
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THE 	COURT: 	It's 	the 	finding 	of 	the 	Court 	in 	the 	case 	of 	the
United States versus…John Stevenson… that the defendants are fully competent
and 	capable 	of 	entering 	an 	informed 	plea; 	that 	the 	defendants 	are 	aware 	of
the nature of the charges and the consequences of the plea; and that the plea
of guilty is a knowing and voluntary plea supported by an independent basis
in fact containing each of the essential elements of the offense.
The pleas are accepted….
****
Mr. John Stevenson is adjudicated guilty of Counts 1 and 27.
***
(Doc. 719 (emphasis added)). Stevenson has presented nothing to overcome the strong
presumption that these sworn statements were true. Cardenas, 230 Fed. Appx. at 935 (“Nothing
in the record shows that Cardenas has satisfied his burden of showing that his sworn statements
made during the plea colloquy-including that no one had predicted what sentence he would
receive-were false; and we reject his claim that his guilty plea was involuntary[]”). 	Further,
Stevenson affirmed that he understood he was giving the Court the power to determine an
element of the offense that a jury normally determines – whether the 10 year sentence applies –
as well as for the Court to determine the drug amounts:
THE COURT:….each of you ‑‑ are, perhaps, contesting that maybe the
ten years does not apply to your case. 	And the determination of that….that's
an element of the offense. 	So you understand that you have a right to have a
jury determine how much drugs were involved? 	Do you understand that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
THE 	COURT: 	But 	by 	that 	plea 	agreement, 	you 	are 	asking 	me 	to
determine 	the 	amount 	of 	drugs 	and 	by ‑‑ 	if 	I 	determine 	the 	amount 	of 	drugs,
once 	I 	determine 	that, 	then 	I'll 	see 	if 	that 	is 	the 	amount 	that, 	you 	know,
implicates the ten‑year mandatory minimum.
***
THE COURT: 	So you're actually giving me the power to determine
an element of the offense that a jury normally determines. 	Do you understand
that?
***
DEFENDANT J. STEVENSON: 	Yes, ma'am.
***
(Doc. 719 at 17-18 (emphasis added)). As such, Stevenson’s petition lacks merit.
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Stevenson argues that his attorney (Hughes) was ineffective because he told him that he
would receive a sentence below the 10-year mandatory minimum if he plead guilty and
cooperated. (Doc. 724 at 4). However, Stevenson specifically stated under oath that no one had
promised him anything that was not included in the plea agreement. Stevenson’s statement now,
that his attorney promised him something that was not included in the plea agreement, is
contradicted by the record.
Moreover, the record reveals that Stevenson plead guilty with full knowledge – per the
indictment’s penalty section, his probation officer’s preliminary guidelines calculation, his plea
agreement and the Court’s warnings during his plea colloquy – that he could be subject to a
mandatory 	10-year 	sentence. 	Stevenson 	signed 	a 	certification 	under 	penalty 	of 	perjury
confirming (in part) that his attorney provided him with a copy of his probation officer’s
preliminary guidelines calculation report, he discussed it with his attorney, and he understood
that the final calculations, if he was found guilty, could be different. 	(Doc. 221). 	Stevenson
acknowledged in his plea agreement that he reviewed the sentencing guidelines with his attorney
and that the actual sentence imposed is solely at the discretion of the Court. (Doc. 278). During
the plea colloquy, Stevenson confirmed that he was satisfied with his attorney’s advice to plead
guilty.
III. 	Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, a certificate of
appealability is DENIED. 28 U.S.C. § 2255, Rule 11(a) (“The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant[]”). 	The statute
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makes clear that an applicant is entitled to appeal a district court’s denial of his habeas corpus
petition only where a circuit justice or judge issues a certificate of appealability. 	28 U.S.C. §
2253(c)(1). 	A certificate of appealability may be issued only where “the applicant has made a
substantial showing of the denial of a constitutional right.” 	28 U.S.C. § 2253(c)(2). 	Where, as
here, a habeas petition is being denied on procedural grounds, “a COA should issue [only] when
the prisoner shows...that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). 	See also Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (“[u]nder the controlling
standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were “adequate to deserve encouragement to proceed further[]’”). 	As Stevenson has
procedurally defaulted his claim, a reasonable jurist could not conclude that this Court is in error
in dismissing his petition or in concluding that he should not be allowed to proceed further.
Slack, 529 U.S. at 484 (“[w]here a plain procedural bar is present and the…court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that the…court
erred in dismissing the petition or that the petitioner should be allowed to proceed further[]”).
IV. 	Conclusion
Accordingly, it is ORDERED that Stevenson’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (Doc. 724) is DENIED and as a result, this action is
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DISMISSED with prejudice.3 It is further ORDERED that Stevenson is not entitled to a
Certificate of Appealability.4
DONE and ORDERED this the 26th day of October 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
3 As “the motion and the files and records of the case conclusively show that [Stevenson] is entitled to no
relief,” 28 U.S.C. § 2255(b), the Court concluded that an evidentiary hearing was not warranted under § 2255(b) and
Rule 8 of the Federal Rules Governing Section 2255 Cases in the United States District Courts.
4 Stevenson does not appear to have sought in forma pauperis status.
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