United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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).
Motion is before the Court for initial review pursuant to
Rule 4(b) of the Rules Governing ' 2255 Proceedings which
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.
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).
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
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.
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
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.
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.
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.
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.
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.