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Rhodes v. United States

United States District Court, S.D. Ohio, Eastern Division

August 23, 2017

ANTWANE J. RHODES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 2:12-cr-00122

          King Magistrate Judge.

          OPINION AND ORDER

          MICHAEL H. WATSON, UNITED STATES DISTRICT JUDGE.

         On March 14, 2017, the Magistrate Judge issued an Order and Report and Recommendation ("R&R"). ECF No. 114. In the R&R, the Magistrate Judge denied Petitioner's Motion to Reinstate Previously Filed Motions, ECF No. 112, and Petitioner's Motion for Discovery, ECF No. 98, and recommended that Petitioner's Motion to Vacate Under 28 U.S.C. § 2255, ECF No. 94, be denied and that this action be dismissed. Id. Petitioner objects to the R&R. Obj., ECF No. 117. Petitioner has also filed the following motions: Motion to Amend/Amplify 2255 Motion Pursuant to Rule 15(c) of F. R. CV. P., ECF No. 118; Amended Motion to Vacate under 28 U.S.C. § 2255, ECF No. 120; and Motion to Hold 2255 Abeyance and for Bail Pending Sixth Circuit's En Banc Turner Decision, ECF No. 119. Respondent opposed Petitioner's motions, Response in Opposition, ECF No. 125, and Petitioner replied in support, Reply to Government's Response to Objections to Magistrate R&R and to Amended 2255 Motion, ECF No. 126. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review.

         For the reasons that follow, Petitioner's Objection, ECF No. 117, is OVERRULED. The Magistrate Judge's denial of Petitioner's Motion to Reinstate Previously Filed Motions, ECF No. 112, and Motion for Discovery, ECF No. 98, are AFFIRMED. Petitioner's Rule 15 motion to amend the motion to vacate under § 2255 by the addition of new claims, ECF No. 118, and his request for release on bail, ECF No. 119, are DENIED. The R&R, ECF No. 114, is ADOPTED and AFFIRMED, except that Petitioner's request to stay the proceedings in regard to his claim that he was denied the effective assistance of counsel prior to the filing of the Indictment is GRANTED. AH of Petitioner's remaining claims are DISMISSED.

         i. DISCUSSION

         Petitioner challenges his criminal conviction, pursuant to the terms of a negotiated Plea Agreement, ECF No. 31, on charges of conspiracy to distribute and to possess with intent to distribute over 1, 000 kilograms of marijuana in violation of 21 U.S.C. § 846, and money laundering in violation of 18 U.S.C. § 1956(h). Petitioner alleges in his Motion to Vacate under 28 U.S.C. § 2255, ECF No. 94, ("Motion to Vacate") that a confidential government informant unconstitutionally interfered with Petitioner's relationship with his then-attorney, Javier Armengau ("Attorney Armengau") (claim one); that he was denied a fair trial due to prosecutorial misconduct (claim two); and that his guilty plea was not knowing and voluntary because he entered it based on the ineffective assistance of counsel (claim three). The Magistrate Judge recommended dismissal of the foregoing claims as without merit or as waived by virtue of Petitioner's guilty plea. R&R, ECF No. 114. The Magistrate Judge also denied Petitioner's requests for discovery, for an evidentiary hearing, and for the appointment of a special prosecutor. Id. Petitioner objects to that recommendation and to the denial of his motions.

         A brief summary is necessary. Prior to being indicted, Petitioner was represented by Attorney Armengau, an attorney who was subsequently convicted of unrelated criminal offenses and suspended from the practice of law. A different attorney, Attorney Rion, entered an appearance on behalf of Petitioner shortly after the return of the Indictment. ECF Nos, 11, 12. According to Petitioner, he was induced by an alleged government informant to enter into an attorney-client relationship with Attorney Armengau. In his first claim for relief, Petitioner alleges that Attorney Armengau helped the alleged informant provide the prosecution with false and incriminating information against him, thereby interfering with his Constitutional rights to counsel and against self-incrimination. The Magistrate Judge recommended that this claim be dismissed because it was waived by virtue of Petitioner's guilty plea, rejected by the United States Court of Appeals for the Sixth Circuit in Petitioner's direct appeal, and because controlling case law mandated dismissal. See R&R, ECF No. 114 PAGEID # 820-27 (citing the Sixth Circuit's holding in Turner v. United States, 848 F.3d 767, 77-72 (6th Cir. 2017) (holding that the right to counsel in plea negotiations attaches only after the filing of formal charges). R&R, ECF No. 114, PAGEID # 820-27.

         Petitioner objects to the Magistrate Judge's conclusion that he waived any claim by virtue of his guilty plea. Petitioner contends that he knew nothing about the factual basis for his claims relating to Attorney Armengau prior to the Columbus Bar Association's June 13, 2014, Motion for Immediate Interim Remedial Suspension against Attorney Armengau, see Motion to Expand the Record, ECF No. 96-1, PAGEID # 577; he also contends that he did not know that the government had conveyed a potential plea offer before the return of the Indictment until he read the government's response to his Motion to Vacate. Obj., ECF No. 117, PAGEID # 846. Petitioner maintains that, under these circumstances, the Court should impose a reduced sentence of 100 months' imprisonment or less, i.e., a sentence similar to that obtained by others who, Petitioner alleges, cooperated with the government. Had Attorney Armengau properly advised him, Petitioner insists, he would have agreed to cooperate with the government prior to the filing of the Indictment and would have pleaded guilty, thereby securing the benefit of a reduced sentence. Reply, ECF No. 126, PAGEID #912.

         Petitioner also objects to the Magistrate Judge's denial of his request for an evidentiary hearing and discovery. Petitioner seeks an evidentiary hearing in order to establish that the alleged informant conveyed information to the government that was obtained during Petitioner's conversations with Attorney Armengau and that the alleged informant testified to those same matters during grand jury proceedings. Petitioner seeks production of all documents in the government's possession that relate to the alleged informant in order to support his claim that the government intentionally interfered with his attorney-client relationship. Petitioner objects to the Magistrate Judge's conclusion that he failed to establish "good cause" for these requests.

         Finally, Petitioner requests a stay of these proceedings pending the anticipated en banc decision of the Sixth Circuit in Turner v. United States, No. 15-6060, 2017 WL 1359475 (6th Cir. April 13, 2017) (granting rehearing en banc and vacating the decision in Turner, 848 F.3d 767). Petitioner also seeks his release on bail pending that anticipated en banc decision. Mot., ECF No. 119.

         A. Motion for Stay

         When recommending that Petitioner's claims be dismissed, the Magistrate Judge cited Turner, 848 F.3d at 770-72, for the proposition that the right to counsel in plea negotiations attaches only after the filing of formal charges. R&R, ECF. No 114, PAGEID # 823. After the Magistrate Judge issued that recommendation, the Sixth Circuit vacated the Turner decision and granted a rehearing en banc. 2017 WL 1359475 at *1. Petitioner now asks that these proceedings be stayed pending that anticipated en banc decision. Respondent opposes that request, arguing that the resolution of Turner will not impact this case. Resp., ECF No. 125, PAGEID # 900. Nevertheless, the Magistrate Judge expressly relied, at least in part, on the earlier decision in Turner. R&R, ECF No. 114, PAGE ID # 823.[1]

         This Court concludes that the anticipated en banc decision in Turner may impact the resolution of Petitioner's claims. The en banc panel in Turner will address whether the Sixth Amendment right to the effective assistance of counsel attaches prior to the filing of a formal charge against a defendant. Turner, 848 F.3d at 768.

         The petitioner in Turner was arrested by a joint federal-state anti-crime task force and, at the time he retained counsel, the State of Tennessee had formally charged him with aggravated robbery although no federal charges had been brought. Id. The Sixth Circuit explained that:

[d]uring the pendency of the state proceedings, the United States Attorney's Office and Turner's attorney in the state proceeding discussed settlement regarding forthcoming federal charges arising out of the same conduct that led to the state charges. Turner rejected a federal plea offer regarding the as-yet uncharged federal case, but he subsequently pled guilty to the federal charges pursuant to a less-favorable plea agreement. He filed a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his federal conviction based on ineffective assistance of counsel during plea negotiations concerning the federal charges. The government argued that because Turner had no Sixth Amendment right to counsel regarding plea negotiations conducted prior to the filing of formal charges against him, counsel could not be constitutionally ineffective. Following Sixth Circuit precedent holding that the Sixth Amendment right to counsel does not attach before formal charges are filed, the district court denied the motion without reaching the merits of the ineffective assistance of counsel claim.

Id. The original appellate panel in Turner affirmed the district court's decision, citing the Sixth Circuit's "bright-line rule" that the right to counsel in connection with plea negotiations attaches only after the filing of formal charges. Id. at 770-71 (citing Kennedy v. United States,756 F.3d 492 (6th Cir. ...


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