United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendant's Motion to Vacate
pursuant to 28 U.S.C. § 2255 (ECF No. 187). As with all
collateral attacks on criminal judgments filed at the Dayton
location of court, the § 2255 Motion is referred to the
undersigned for report and recommendations, pursuant to
General Order DAY 13-01.
Motion is before the Court for initial review pursuant to
Rule 4(b) of the Rules Governing § 2255 Proceedings
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.
Evans was named in the Second Superseding Indictment filed in
this case on May 25, 2017, and included in Counts 1, 11, 12,
and 15 (ECF No. 51). On August 22, 2018, he entered into a
Plea Agreement with the United States in which he agreed to
plead guilty to Count 11 which charged him with distribution
of heroin in an unspecified amount, an offense carrying a
maximum penalty of twenty years imprisonment (ECF No. 157).
The parties agreed that the appropriate sentence would be
sixty months plus three years supervised release.
Id. at ¶ 6, PageID 474. Among other things, the
United States agreed to recommend that Evans “be
allowed to serve his state term of imprisonment prior to the
term of incarceration imposed in this case.”
Id. at ¶ 7, PageID 475. Section 7 concludes,
“Defendant agrees and understands that these
recommendations in Paragraph 7 do not bind the Court, and
defendant cannot withdraw his plea if the Court declines to
accept these recommendations contained in Paragraph 7.”
Id. Paragraph 12 of the Plea Agreement reads,
“This is the complete agreement between the parties. It
supersedes all other promises, representations,
understandings, and agreements between the parties.”
Id. at PageID 476.
the required plea colloquy under Fed. R. Crim. P. 11, Judge
Rose accepted Evans' guilty plea (Minute Entry, ECF No.
159). On November 27, 2018, and after considering the
Presentence Investigation Report from the Probation
Department, Judge Rose imposed the agreed sentence and
dismissed Counts 1, 12, and 15 (Minute Entry, ECF No. 167;
Judgment, ECF No. 168). Evans made no claim at sentencing
that he had not been sentenced as agreed upon and he took no
appeal; his time to do so expired December 11, 2018. See Fed.
R. App. 4(b)(1)(A)(i). He filed his Motion to Vacate by
depositing it in the prison mail system December 5, 2019,
less than a week before the statute of limitations would have
pleads one ground for relief:
Ground One: Movant has been denied specific
performance of his plea.
Supporting Facts: A specific promise and
inducement to enter a plea of guilty herein was the promise
that Movant would first be allowed to enter state custody and
discharge his sentence obligation. In the event he was not so
afforded specific performance, and as a result Movant is
denied program participation in FBOP including Community
(Motion to Vacate, ECF No. 187, PageID 666.)
agreements are contractual in nature” and are therefore
interpreted and enforced in accordance with traditional
contract law principles. United States v. Lukse, 286
F.3d 906, 909 (6thCir. 2002); United States v.
Wells, 211 F.3d 988, 995 (6th Cir. 2000).
Once a plea agreement has been interpreted, the burden of
proving a breach lies with the party asserting the breach.
United States v. Harris, 2006 U.S. ...