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Appleby v. United States

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

December 20, 2019

BERND D. APPLEBY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          James L. Graham Judge.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         On February 13, 2019, Movant, a federal prisoner, submitted a pro se motion to vacate his sentence under 28 U.S.C. § 2255. (ECF No. 129.) The case was referred to the Magistrate Judge pursuant to 28 U.S.C § 636(b) and Columbus' General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases in the United States District Courts (“the Habeas Rules”), the Court must conduct a preliminary review and determine whether “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If it does so appear, the motion must be dismissed. Id. Rule 4(b) allows for the dismissal of motions that state “only bald legal conclusions with no supporting factual allegations.” Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (quoting Sanders v. United States, 373 U.S. 1, 19 (1963)). For the following reasons, the Magistrate Judge RECOMMENDS that the motion be DENIED because it is barred by the collateral attack waiver in Movant's plea agreement, fails to raise cognizable claims, and is barred by the statute of limitations.

         I. BACKGROUND

         On June 23, 2017, Movant executed a plea agreement pursuant to Rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure. (ECF No. 3.) In it, he agreed to plead guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, 1343, and 2. (ECF Nos. 3, 102.) Movant also agreed to waive his rights to appeal and to “waive[] the right to attack his conviction or sentence collaterally, such as by way of a motion brought under 28 U.S.C. § 2255” subject to certain exceptions.[1] (ECF No. 3, at PAGE ID # 14.) In exchange, the government agreed to forgo prosecuting Movant for conduct that occurred prior to the date of the plea agreement that was part of the same course of criminal conduct described in the information. (Id. at PAGE ID #13-14.) The parties both agreed that if the Court accepted Movant's guilty plea, any sentence would not exceed 60 months. (Id. at PAGE ID # 13.)

         On August 17, 2017, Movant entered a conditional plea of guilt before a United States Magistrate Judge. (ECF Nos. 30, 107.) At the plea hearing, Movant was placed under oath, and the Magistrate Judge reviewed with him the plea agreement and the rights he was giving up by entering a guilty plea. (Transcript Plea Proceedings, ECF No. 107, at PAGE ID # 637, 645-46.) Movant indicated that he understood those rights and that he was willing to give them up. (Id. at PAGE ID # 645-46.) The Magistrate Judge also reviewed the appellate waiver. (Id. at PAGE ID # 644-45.) Counsel for the government subsequently clarified that the waiver included both appellate rights and the right to collaterally attack the judgment or conviction. (Id. at PAGE ID # 649.) Movant agreed that the terms of the plea agreement were as counsel for the government had described them. (Id. at PAGE ID # 652.) The Magistrate Judge asked Movant if the plea was a product of his own free and voluntary act, to which he responded in the affirmative. (Id. at PAGE ID # 652.) Movant further denied that he had been subjected to threats or force of any kind to induce him to plead guilty. (Id. at PAGE ID # 653.) Movant indicated that he understood the nature and the meaning of the charge and any defenses he had to it. (Id. at PAGE ID # 639.) He also admitted to the elements of the conspiracy offense.

THE COURT: . . . First of all, it's represented that you entered into an agreement among your three - yourself and three co-defendants, at least, to obtain through subterfuge the intellectual property of Oracle or Sun Systems; is that true?
[MOVANT]: Yes, it is.
THE COURT: All right. You were a co-owner of - how do you pronounce it - TERiX?
[MOVANT]: TERiX.
THE COURT: You are a co-owner of it, and CEO of TERiX?
[MOVANT]: Yes.
THE COURT: And this scheme that you and some or all of the other three co-defendants devised included either the creation or the fabrication of other business entities to obtain credentials in Oracle or Sun Systems; is that correct?
[MOVANT]: That is essentially true, yes.
THE COURT: All right. And it was in order to obtain patches that are the intellectual property of owned or held by Oracle or Sun Systems; is that true?
[MOVANT]: Yes.
THE COURT: And that intellectual property, after you obtained it, or after TERiX obtained it, was then sold to your customers, ...

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