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United States v. Murray

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

March 28, 2018

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

          Magistrate Judge Michael R. Merz

          DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS

          SUSAN J. DLOTT, UNITED STATES DISTRICT JUDGE

         This case is before the Court on Defendant Murray's Objections (ECF No. 107) to the Magistrate Judge's Report and Recommendations (“Report, ” ECF No. 104) recommending denial of Defendant's Motion to Vacate Sentence under 28 U.S.C. § 2255 (“Motion, ” ECF No. 102). As required by Fed.R.Civ.P. 72(b)(3), the Court reviews the Report de novo.

         The Motion pleads the following 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 Paul 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 Paul 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. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed. 162 (1970). It must be done with sufficient awareness of the relevant circumstances and likely consequences. See McMann v. Richardson, 387 U.S. at 759, 766, 90 S.Ct. 1441 (1970).
Ground Three: Petitioner Murray's acceptance of the plea agreement cannot be construed as being voluntary, knowing or intelligently entered into.
Supporting Facts: Petitioner Murray respectfully avers that under the circumstances and the information and supposed facts provided to him by defense counsel regarding his exposure in punishment and the sentence to be imposed by the Court, he could not have possibly understood or realized the consequences of entering a guilty plea. See Lee v. United States, 2017 WL 2694701 (6th Cir. 2017). 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 to the defendant (Murray). See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Defense counsel's advice should have permitted Petitioner Murray to make an informed and conscious choice. Of course, with the erroneous and inaccurate information provided to him, this was made literally impossible. See McCarthy v. United States, 394 U.S. 459, 466 (1969).
Ground Four: Petitioner Murray's convictions on Counts Two & Four of the Information charging violations of 18 USC§ 924(c) are unconstitutional due to the fact predicate "Hobbs Act" robberies as defined by 18 U.S.C. § 1951 do not qualify as crimes of violence as a matter of law.
Supporting Facts: Petitioner Murray respectfully advances the proposition that the relevant portion of 18 U.S.C. § 924(c) which defines a "crime of violence" contains two clauses. The first clause-924(c)(3)(A) is commonly referred to as the "force" clause. The other-924(c)(3)(B) is commonly referred to as the residual clause . Thus, Hobbs Act robbery under § 1951 categorically fails to qualify as a "crime of violence" under§ 924(c)(3)' s force clause since pursuant to§ 1951, the offense can be committed simply by putting one in fear of future injury to his her person or property, which 1) does not require the threat of violent physical force, and ~ does not require an intentional threat of the same.
Ground Five: The U.S. District Court was under the incorrect assumption that it had no alternative but to impose a “consecutive” sentence regarding the firearm charge contained in Count Four of the Information commonly referred to as stacking.
Ground Six: The U.S. District Court was not aware of its authority pursuant to 18 U.S.C. ยง 3553(e) to sentence Petitioner Murray below the statutory ...

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