The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on Defendant's Motion for Reconsideration (doc. 38), United States' Response (doc. 39), Defendant's Supplement to Defendant's Motion for Reconsideration (doc. 41), United States' Response to Defendant's Supplement (doc. 48), Defendant's Motion to Expand Record and for Evidentiary Hearing (doc. 50), United States' Response (doc 51), and Defendant's Reply Memo to the United States' Response (doc. 52).
For the reasons indicated herein, the Court DENIES Defendant's Motion for Reconsideration and DENIES Defendant's Motion to Expand Record and for Evidentiary Hearing.
On September 27, 2002, Defendant Darin Keith Martin pleaded guilty to charges under 18 U.S.C. § 2113(a) and (d) (doc. 39). On March 27, 2003, this Court imposed a sentence of one hundred and eighty-eight (188) months incarceration followed by five (5) years of supervised release (doc. 48). Defendant did not file a direct appeal (doc. 39).
On November 26, 2004, Defendant filed a Motion by letter, construed by the Court to be a Motion to Compel Production of Discovery Record, in which he asked the Court to require his attorney, Federal Public Defender C. Ransom Hudson (hereinafter "Mr. Hudson"), to provide Defendant with documents contained in his case file (doc. 34). In light of uncontested evidence that Defense Counsel responded to Defendant's request to the extent possible by law (doc. 35), the Court denied Defendant's motion on January 29, 2004 (doc. 37).
On February 9, 2004, Defendant filed a Motion for Reconsideration (doc. 38), followed by a Motion to Supplement Motion for Reconsideration on March 15, 2004 (doc. 41). Therein, Defendant asked that the Court reconsider its January 29, 2004 Order (doc. 37) and remove Mr. Hudson as counsel due to irreconcilable differences (doc. 38). In response, the Government noted that Defendant's motion appeared to be an ineffective assistance of counsel claim and suggested that the Court require that Defendant re-characterize his motion (doc. 39). Mr. Hudson filed a parallel Motion to Withdraw as Counsel on March 3, 2004 (doc. 40). On April 6, 2004, this Court issued an Order granting the Motion to Withdraw as Counsel and requiring Defendant to either re-characterize his motions as a Section 2255 Motion or withdraw them (doc. 42). On April 23, 2004, Defendant filed a notice re-characterizing his motions as a Section 2255 Motion (doc. 43).
On October 2, 2004, the Court ordered Mr. Hudson to provide an affidavit responding to Defendant's claims of ineffective assistance of counsel (doc. 49). Due to errors unknown to the Court, Mr. Hudson did not receive the Order (doc. 53). After learning of the Order, Mr. Hudson took the necessary steps to comply, including writing the Defendant to obtain his permission to submit the affidavit in consideration of attorney/client privilege issues (Id.). Defendant refused to give Mr. Hudson permission to submit the affidavit (doc. 53). Pursuant to Rule 7(b) and 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, Defendant requested an expansion of the record to include a letter from Mr. Hudson and an evidentiary hearing to determine the merits of his claim of ineffective assistance of counsel (doc. 50). The Government's response claimed that Defendant implicitly waived his attorney-client privilege and argued that Defendant cannot simultaneously hide behind the attorney/client privilege while using privileged information to build his case (Id.).
On January 19, 2006, the Court issued an Order requiring Defendant to respond to Mr. Hudson, either granting permission for or explicitly rejecting the submission of the affidavit (doc. 53). On January 30, 2006, Defendant filed a waiver of attorney/client privilege (doc. 54). The Court received the affidavit of Mr. Hudson on May 26, 2006 (doc. 56).
II. DEFENDANT'S SECTION 2255 MOTION
Having resolved the foregoing issues, the Court now considers the merits of the case. Defendant's Section 2255 Motion (doc. 38) asserts several grounds for relief. First, he alleges ineffective assistance of counsel, based on Defense counsel's alleged failure to explain the sentencing guidelines and to file an appeal of Defendant's sentence (Id.). Second, Defendant contends that the Government breached the plea agreement through the use of a victim statement, improperly influencing the Court's 188 month sentence determination (Id.). Defendant also argues that the language of the plea agreement is ambiguous and that any enhancement not included therein are unconstitutional (Id.). Finally, Defendant maintains that the Government must furnish notice of all aggravating circumstances justifying the enhancement of his sentence (Id.).
In response, the Government contends that Defendant's claims are frivolous and should be dismissed (doc. 48). With regard to the ineffective assistance of counsel claim, Government argues that Defendant fails to make out a prima facie case, as he has not demonstrated either deficient performance of counsel or resulting prejudice (Id.). Second, the Government argues that the use of the victim impact at sentencing is not a breach of the plea agreement, noting that the agreement contains no language which requires the Government to remain silent at sentencing (Id.). They claim the base offense level increased from 28 to 34 as a result of the Defendant's criminal history (the probation department determined that the Defendant was a career offender), not as a result of a breach of the plea agreement or Government action (Id.). Furthermore, the Government contends the plea agreement is clear and incorporates the complete understanding between the parties, noting that the agreement was orally detailed at trial, the Defendant related to the Court that this was his understanding and signed the agreement (Id.). With regard to sentencing enhancements not detailed in the plea agreement, the Government argues that Defendant acknowledged that the U.S. Probation Department would prepare a sentencing recommendation for the Court and was given an opportunity to review and challenge this report (Id.). The Government similarly disputes Defendant's argument that they must provide notice of their intention to impose extended terms of imprisonment.
Having reviewed this matter the Court finds the Government's position well-taken and thereby denies ...