Alexander v. United States

VALERIO ALEXANDER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 2:16-CV-585

CRIM. NO. 2:13-CR-106(1)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 23, 2018

CHIEF JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

ORDER and REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 150.) On May 17, 2017, Petitioner filed an unopposed Motion for Leave to File Amended § 2255 Petition. (ECF No. 154.) Petitioner's unopposed motion to file an amended § 2255 petition (ECF No. 154) hereby is GRANTED.

This matter is before the Court on the motion to vacate pursuant to 28 U.S.C. § 2255, as amended, Respondent's Answer in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner's Amended Motion to Vacate Under 28 U.S.C. § 2255 be DENIED and this action be DISMISSED.

Facts and Procedural History

The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of this case as follows:

In early 2013, defendant made a deal with Thomasina Howard whereby he would provide Howard and her 16-year-old daughter (the victim) with food, housing, and illegal drugs in exchange for their services as sex workers at his apartment in Columbus, Ohio. Defendant photographed the victim in lingerie and provided her with a cellular telephone. Defendant forwarded the photographs of the victim to another woman, and instructed her to create an advertisement for the victim in the escorts section of Backpage.com, a nationwide website headquartered in Texas with servers in Arizona. The advertisement contained the photographs of the victim and a telephone number for the cellular telephone defendant gave her. Around February 8, 2013, the victim received a call from a prospective client, and defendant instructed her to meet with the client, with whom the victim engaged in sexual activity in exchange for $100. The victim later left defendant's apartment despite his attempts to convince her to remain there as a sex worker. A federal task force officer received information that the victim had been used in sex trafficking, and arrested defendant. At the time of arrest, defendant had a cellular telephone in his car which contained photographs of the victim used in the Backpage.com advertisement, as well as numerous text messages related to sex trafficking.

The grand jury returned a two-count indictment charging defendant with conspiracy to recruit a minor for commercial sex and the substantive offense. Defendant's first appointed attorney, Nathan Akamine, withdrew at defendant's request shortly before the trial date, citing a breakdown of the attorney-client relationship. The District Court pushed trial back two months to allow second appointed attorney James Gilbert to prepare for trial. Days before trial, defendant sought to fire Gilbert, even though he was prepared to go to trial, because defendant "neither wanted to go to trial nor accept a plea." Defendant then sought and received permission to substitute retained counsel. Retained counsel Javier Armengau informed the District Court that he would represent defendant only if granted a continuance. The United States opposed the continuance, citing Armengau's own pending criminal trial in February 2014. The District Court agreed to delay the trial to January 21, 2014, and indicated that it would grant no further continuances. Nevertheless, Armengau moved for a continuance on December 30, noting that he received the file from defendant's prior counsel on December 13 and would not be prepared for trial due to the delay. The District Court denied the motion. On January 15, Armengau again moved for a continuance, indicating that the file sent by prior counsel was incomplete, and that he only received the complete file on the date of his immediate motion. The District Court again denied the motion.

Three days before trial, defendant signed a plea agreement wherein he pleaded guilty to one count of Sex Trafficking of Children, and the United States dismissed the conspiracy count and agreed to a sentence of 15 years' imprisonment. The District Court engaged defendant in a plea colloquy, and the investigating officer testified to a factual basis for the plea. Defendant indicated that portions ofthe officer's testimony were incorrect; namely, that he had nothing to do with posting the advertisement on Backpage.com, and that he did not provide a cellular telephone to the victim. Defendant stated, "I'll take the guilty plea because I have no way of proving, I guess, anything and not enough time to do so either way it goes." The District Court and United States agreed that the plea could not go forward, as defendant denied facts essential to the interstate commerce element of 18 U.S.C. § 1591. The court then called a recess during which defendant and Armengau conferred. Upon returning to court defendant then admitted to directing another person to place the Backpage.com advertisement, admitted providing a cellular telephone to the victim, and entered a guilty plea, acceptance of which the District Court held in abeyance pending review of the presentence investigation report.

On February 12, 2014, however, defendant moved to withdraw his plea on the ground that he was innocent of the charge. At a hearing on the motion, Armengau argued that the District Court should allow plea withdrawal because defendant initially pleaded not guilty, wavered in agreeing to the factual basis during his plea colloquy, and told his probation officer that he was innocent. Armengau then moved to withdraw as defense counsel. Defendant stated that he did not object to Armengau's withdrawal, and noted that Armengau "said that the prosecution denied him from the rights of speaking to the victim and that he had received the discovery packets for my case on Monday, December 16th, which didn't allow him any time to do anything."

The District Court granted Armengau's motion to withdraw and appointed substitute counsel Steven Nolder, with whom defendant had a potential conflict of interest which he waived. Two days before his scheduled sentencing, defendant informed the District Court that he was now unwilling to waive the conflict, and was appointed his fifth and current attorney, Keith Yeazel.

Defendant again moved to withdraw his guilty plea, stating in an affidavit that he pleaded guilty because he "believed that Mr. Armengau was not prepared to go to trial" and that "Mr. Armengau did not have enough time to review the evidence." At a hearing on the motion, defendant testified that Armengau told him he would hire a private investigator, question witnesses, and obtain telephone records, but did none of these things. Defendant also testified that he was unaware that Armengau was facing criminal charges at the time he retained him. According to defendant, after the District Court denied his January 15 motion to continue, Armengau advised him that "looking at the fact that he didn't haveany time to work, ... the best thing that I could do was basically sign that deal or go to court and because the fact that things wasn't [sic] looking right or something, ... that I could be facing 30 to life." Defendant testified that he accepted the plea agreement "[b]ecause Mr. Armengau was saying that he felt like that was the best thing for me, that he felt like I would lose in trial, and he didn't have to say too much more." Defendant also testified that Armengau agreed to provide him a letter stating that he did not have enough time to prepare for the trial and that the prosecutor had denied him access to witnesses, but refused to write the letter after defendant complained to the Columbus Bar Association. Defendant maintained his innocence, stating that he never made a deal with Howard or the victim related to sex trafficking. The District Court expressed concern with Armengau's handling of the case, but ultimately denied defendant's motion to withdraw his plea. Consistent with the plea agreement, the District Court sentenced defendant to 15 years in prison.

United States v. Alexander, 628 F. App'x 422, 423-24 (6th Cir. 2015). On October 14, 2015, the Sixth Circuit affirmed the Judgment of this Court, denying Petitioner's claim that his attorney suffered an improper conflict of interest based on pending criminal charges, and declining to address Petitioner's remaining claims of ineffective assistance of counsel. Id.

On June 23, 2016, Petitioner filed the Motion to Vacate under 28 U.S.C. § 2255. On May 17, 2017, through counsel, he filed an Amended Motion to Vacate and Set Aside Conviction and Sentence under 28 U.S.C. § 2255. (ECF No. 154-1.) Petitioner asserts that his conviction for sex trafficking of children, in violation of 18 U.S.C. § 1591(a), (b)(2), categorically fails to qualify as a "crime of violence" and that the Court therefore improperly sentenced him as a career offender in view of Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016); that his conviction fails to qualify as a "crime of violence" because it does not meet the definition of the force clause contained in U.S.S.G. § 4B1.2(a)(1), as required under Johnson v. United States, 559 U.S. 133, 140 (2010); and that his guilty plea and conviction was the product of the ineffective assistance of counsel. However, Petitioner has withdrawn his claim that his sentenceviolates Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015) (declaring the "residual clause" of the Armed Career Criminal Act "ACCA" to be constitutionally invalid), in view of the Beckles v. United States, -- U.S. --, 137 S.Ct. 886 (2017) (holding that the advisory Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause). See Reply to Response to Motion (ECF No. 159, PageID# 935.) It is the position of the Respondent that Petitioner's...