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United States v. Murray

United States District Court, S.D. Ohio, Western Division, Cincinnati

January 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON ANTHONY MURRAY, Defendant.

          Susan J. Dlott District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This criminal case is before the Court on Defendant Murray's Motion to Vacate Sentence under 28 U.S.C. § 2255 (ECF No. 102). The Motion has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(ECF No. 103).

         The Motion is before the Court for initial review pursuant to Rule 4(b) of the Rules Governing ' 2255 Proceedings which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States to file an answer, motion, or other response within a fixed time, or take other action the judge may order.

         Procedural History

         On April 23, 2015, the United States Attorney for this District filed an Information charging Defendant Murray in four counts (1) interference with commerce by robbery in violation of the Hobbs Act on August 17, 2014; (2) using a firearm during and in relation to the robbery in Count 1 in violation of 18 U.S.C. § 924(c)(1)(A)(ii); armed bank robbery on October 15, 2014, in violation of 18 U.S.C. § 2113(a); and using a firearm during and in relation to the armed bank robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i) (Information, ECF No. 20).

         On the same day, Murray entered into a written Plea Agreement with the United States (ECF No. 22) which provides in pertinent part that he will plead guilty to all four counts of the Information (¶1). The Plea Agreement provides that the mandatory minimum term of imprisonment on Count 2 is seven years (i.e., 84 months) and the mandatory minimum term of imprisonment on Count 4 is twenty-five years (i.e., 300 months). Id. The same paragraph provides that these two sentences must be served consecutively to one another and to any term imposed on the other counts. The Plea Agreement provides in ¶ 6 that “[t]he parties have agreed that an appropriate sentence in this case is imprisonment is 384 months. Id. at PageID 62. Defendant Murray signed the Plea Agreement on April 21, 2015. Id. at PageID 64.

         The plea colloquy occurred June 3, 2015, and has been transcribed at ECF No. 86. Mr. Murray appeared with counsel Paul Laufman. Murray was sworn to testify truthfully. Id. at PageID 262. Murray testified he attended a semester of college at the University of Cincinnati Blue Ash campus. Id. at PageID 264. He swore that he had read the Information and discussed it with Laufman and that he understood the charges. Id. at PageID 265. Murray pleaded guilty separately to each of the four counts. Id. at PageID 271. Murray swore he was satisfied with the advice Laufman had given him. Id. at PageID 272. Judge Dlott explained the maximum and minimum sentences, including consecutive sentencing, and Murray swore he understood. Id. at PageID 275-76.

         Assistant United States Attorney Springer then summarized the Plea Agreement, including the agreed sentence of 384 months. Id. at PageID 288. Murray swore that the Plea Agreement represented his entire agreement with the Government. Id. at PageID 290. Laufman confirmed that to be the truth. Id. Murray swore, in response to Judge Dlott's question, that no one had made any promise or assurance to him to get him to enter into the Plea Agreement that was not contained in that document. Id. at PageID 290-91. Asked the same question in a different form, he again swore that, aside from what was in the Plea Agreement, no one had made him any promises or assurance of any kind to get him to plead guilty. After a statement of facts by an ATF agent and Murray's agreement that those facts were true, Judge Dlott found his pleas of guilty were knowing and voluntary. Id. at PageID 306.

         Judge Dlott then referred the case to the Probation Department which prepared a Presentence Investigation Report (PSR) which was provided to counsel and the judge before sentencing. Having received the PSR, Mr. Laufman filed a Sentencing Memorandum on Murray's behalf (ECF No. 69). The Sentencing Memorandum acknowledges that Murray faced mandatory minimum consecutive sentences of seven years and twenty-five years. Id. at PageID 193. Laufman noted the pendency of legislation in Congress which would eliminate this “stacking” unless the conviction for the first offense had become final before the second offense was charged. Id. at PageID 195-96.

         Murray was sentenced on May 9, 2016 (Transcript, ECF No. 88). Murray acknowledged that he had discussed the pre-sentence documents the Court was considering with Laufman. Id. at PageID 333. Judge Dlott adopted the statement of facts and the sentencing guideline recommendations in the PSR with no objection by either party. Id. at PageID 334, 337. She noted that the PSR recommended the sentence that had been agreed upon, 384 months. In addressing the Court prior to sentencing, Laufman indicated he had initially not expected the Government would “stack” the firearms charges because he had not seen that before. Id. at PageID 350-51. He acknowledged that the reform bill mentioned in the Sentencing Memorandum had not been enacted. Id.

         During his own lengthy allocution, Murray said that he and his lawyer were expecting eight to ten years. Id. at PageID 363. Judge Dlott eventually imposed a sentence of twenty-five years, seven years below the mandatory minimum. PageID 381. Murray made no effort to withdraw his plea and no assertion that the sentence was inconsistent with the Plea Agreement or induced by some promise or advice not reflected in the Plea Agreement.

         Murray appealed to the Sixth Circuit. His appointed counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), asserting there were no viable issues for appeal. United States v. Murray, No. 16-3513 (6th Cir. May 11, 2017)(unreported; copy at ECF No. 100, PageID 446). The Sixth Circuit found the plea was proper under Fed. R. Crim. P. 11 and that the sentence of 300 months was proper, given the Government's motion to reduce. Id. Appellate counsel indicated Murray wanted to raise three issues of ineffective assistance of trial counsel which were not sufficiently developed to permit presentation on appeal:

(1) trial counsel's failure to anticipate the government's stacking of the § 924(c) offenses and advice to proffer based on the conclusion that Murray would face eight to ten years of imprisonment at sentencing; (2) trial counsel's failure to raise whether the Hobbs Act robbery constituted a “crime of violence” under § 924(c); and (3) trial counsel's failure to raise the fact that the district court judge had recently been the victim of a home invasion as a basis to request assignment to a different sentencing judge.

Id. at PageID 449. Murray then filed the instant Motion, pleading six grounds for relief:

Ground One: Petitioner Murray states a valid claim that he received ineffective assistance of counsel under the Sixth Amendment and Strickland v. Washington.
Supporting Facts: Petitioner respectfully submits that defense counsel Phillip M. Laufman, Esq. induced him to change his plea of not guilty to guilty based on patently erroneous and incorrect advice rendered to him. It is unprofessional conduct for an attorney to understate or overstate the risks, hazards, or prospects of the case to exert undue influence on his/her client's decision as to the plea to be entered. In the instant case, defense counsel 's action fell below an objective standard of reasonableness and was not the result of legitimate strategy that resulted in Petitioner being egregiously prejudicesd [sic]. In March of 2015 while incarcerated in the Cincinnati, Ohio Criminal Justice Center in pre-trial custody, a "meeting, debriefing or proffer" was arranged by defense counsel Laufman. In attendance at this "proffer" were AUSA Anthony Springer, Esq., Special Agents of the A.T.F.&E and D.E.A. in which defense counsel Laufman emphatically encouraged, instructed and directed Petitioner Murray to admit his involvement in any robberies with a guarantee of a 8 to 10 year sentence.
Ground Two: Petitioner Murray's acceptance of the plea agreement cannot be construed as voluntary, knowing or intelligently entered into when he could NOT have possibly understood or realized the consequences of entering a guilty plea agreement as the “misadvice” provided to Petitioner Murray promised and assured him a sentence of eight to ten years in federal prison by defense counsel Phillip M. Laufman, Esq. Ultimately, Petitioner received a sentence of 300 months when sentenced by U.S. District Judge Susan J. Dlott on Counts One through Four based on defense counsel's "misadvice" must be viewed upon as ineffective assistance of counsel. See Lee v. United States, 2017 WL 2694701 (6th Cir . 2017); see also McCarthy v. United States, 394 U.S . 459, 466 (1969). The standard for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open and available to Petitioner Murray. See North Carolina v. ...

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