United States District Court, S.D. Ohio, Eastern Division
BERND D. APPLEBY, Movant,
UNITED STATES OF AMERICA, Respondent.
L. Graham Judge.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
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.
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.
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. (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
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
[MOVANT]: Yes, it is.
THE COURT: All right. You were a co-owner of - how do you
pronounce it - TERiX?
THE COURT: You are a co-owner of it, and CEO of TERiX?
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?
THE COURT: And that intellectual property, after you obtained
it, or after TERiX obtained it, was then sold to your