United States District Court, D. Colorado
ORDER RESOLVING PENDING MOTIONS AND DENYING MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C.
§ 2255
William J. Martínez United States District Judge
This
matter is before the Court on the Motion to Vacate, Set Aside
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“Motion”) filed pro se by Petitioner
Heather Carr (ECF No. 423), as well as Carr's Motion for
Leave to File a Reply Out of Time (“Motion for
Leave”; ECF No. 470), Motion to Amend 2255 Motion with
Additional Claim (“Motion to Amend”; ECF No.
452), and Renewed Motion for Appointment of Counsel (ECF No.
469). For the reasons set forth below, these motions are
denied.
I.
BACKGROUND
On
February 8, 2016, Carr and two co-defendants were charged
with one count of conspiracy to defraud the Government under
18 U.S.C. § 286; 12 counts of wire fraud under 18 U.S.C.
§ 1343; 13 counts of mail fraud under 18 U.S.C. §
1341; and three counts of aggravated identity theft under 18
U.S.C. § 1028A(a)(1) for submitting false claims for
federal student aid to the U.S. Department of Education in
the names of more than 150 inmates. (ECF No. 1.) According to
the stipulated facts in Carr's plea agreement, the
Department of Education disbursed $562, 487.85 as a result of
the false claims. (ECF No. 94 at 11.) Federal public defender
Mary Butterton was appointed as Carr's counsel.
Carr,
through counsel, filed a notice of disposition on November
10, 2016. (ECF No. 83.) At a change-of-plea hearing on
December 5, 2016, Carr pleaded guilty to the conspiracy
charge for her role in the scheme. (ECF No. 94.) At that
hearing, Carr was advised of the rights she waived by
pleading guilty, including the right to a trial on the
charges against her. (ECF No. 432-1 at 14-15.) Carr agreed to
waive those rights and entered a guilty plea. (Id.
at 14; ECF No. 94.) The plea agreement, which was signed by
Carr, her counsel, and the Government, contained an appellate
waiver provision. (ECF No. 94 at 2-3.) The Court ensured that
Carr understood this provision and agreed to the terms. (ECF
No. 432-1 at 16-17.) Carr also confirmed that she understood
the consequences of her plea “including the maximum
sentence that can be imposed.” (Id. at 18-19.)
She also stated that she was “absolutely”
satisfied with the representation of her counsel.
(Id. at 21.)
Among
other things, the plea agreement required that Carr
“testify fully and truthfully at any proceeding in the
District of Colorado or elsewhere as requested by the
government.” (ECF No. 94 at 4.) Carr initially agreed
to testify at the trial of her co-defendant Trammel Thomas.
After the first day of Thomas's trial, however, Carr
decided not to testify. Later, at Carr's sentencing
hearing, the Court observed that “reneging on one's
promise is . . . a basis on which the sentence legitimately
may be augmented.” (ECF NO. 432-1 at 49.) Nonetheless,
instead of withdrawing from the plea agreement and
reinstating all charges against Carr, the Government left
Carr's plea agreement intact and proceeded to dismiss all
remaining counts in the indictment at the sentencing hearing.
(ECF No. 432-2 at 48.)
The
plea agreement also included an estimated total offense level
of 23 and a tentative criminal history category of I with a
resulting guideline sentencing range from 46-57 months,
although the parties noted that the top end of the range
could be up to 115 months, depending on criminal history.
(ECF No. 94 at 12.) In the document, Carr agreed to serve a
minimum sentence of 24 months. (Id. at 2.) The plea
agreement also noted that the maximum statutory penalty for a
conviction under 18 U.S.C. § 286 is up to 10 years
imprisonment. (Id. at 7.)
In
advance of Carr's sentencing, the Court's Probation
Office prepared a Presentence Investigation Report
(“PSIR”) which added two additional enhancements
to the plea agreement's estimated offense level, for a
recommended total offense level of 27. (ECF No. 250 at 10.)
Two levels were added because of the large number of
vulnerable victims. (ECF No. 432 at 5; ECF No. 423 at 18.)
Carr's counsel did not object to this enhancement because
there was “no reasonable argument against it.”
(ECF No. 423 at 18.) Two additional levels were added for
Carr's abuse of a position of public or private trust or
use of a special skill. Carr's counsel objected to this
addition at the sentencing hearing, and the Court sustained
that objection. (ECF No. 432-2 at 8.) Thus, Carr's total
offense level of 25 and criminal history category of I
yielded an advisory guideline sentencing range of 57 to 71
months. (Id. at 10.) The Court rejected Carr's
motion for a variant sentence. (Id. at 55.)
At the
sentencing hearing on January 4, 2018, the Court imposed a
57-month sentence with three years probation, the minimum
term of incarceration under the advisory guideline sentencing
range. (Id. at 57.)
Carr
directly appealed to the Tenth Circuit, where the Government
moved to enforce the appeal waiver in her plea agreement.
United States v. Carr, No. 18-1021 (10th Cir. Apr.
5, 2018). Carr conceded that her appeal waiver was
enforceable, and the Tenth Circuit granted the motion to
enforce and terminated the matter. Id.
Carr
commenced this § 2255 proceeding on June 29, 2018. (ECF
No. 423.) Carr raises four claims: (1) ineffective assistance
of counsel for permitting a sentence greater than 24 months;
(2) prosecutorial misconduct because the “prosecution
withheld information that [Carr] told them” and the
“prosecutors lied in a sentencing statement”
about Carr's involvement in a prior case; (3) the
“prosecution knowingly and maliciously lied in a
sentencing statement” about Carr's involvement in a
2011 arrest of Thomas and witness Christine Duncan; and (4)
Carr did not knowingly and voluntarily enter into the plea
agreement because she “would have never signed
a deal with . . . the possibility of a 57 month
sentence.” (Id. at 4-6.) Carr asks to be
resentenced to a term of 24 months. (Id. at 8.) At
that time, Carr also filed a Motion to Appoint Counsel (ECF
No. 424), which the Court denied (ECF No. 427). On July 23,
2018, the Government filed its response to Carr's Motion.
On
October 22, 2018, Carr filed four separate documents: a
belated reply in support of the Motion (ECF No. 451), the
Motion for Leave (ECF No. 470), the Motion to Amend (ECF No.
452), and the Renewed Motion for Appointment of Counsel (ECF
No. 469).[1] Carr's Motion to Amend claims that her
total offense points were two points higher than they should
have been because certain loan amounts were improperly
included in the loss amount, and that her counsel was
ineffective for failing to address this supposed error. (ECF
No. 462 at 1-3.) The Government responded that Carr's
Motion for Leave and Motion to Amend were “unduly
dilatory and futile.” (ECF No. 455 at 3.)
II.
LEGAL STANDARD
Section
2255 of Title 28 of the United States Code applies to
requests seeking to vacate, set aside, or correct a federal
sentence. A § 2255 petition “attacks the legality
of detention . . . and must be filed in the district that
imposed the sentence.” Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir. 1996). “The purpose of section
2255 is to provide a method of determining the validity of a
judgment by the court which imposed the sentence.”
Id.
Carr is
proceeding pro se and entitled to liberal
construction of her pleadings. Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). In other words, if the Court can
“reasonably read the pleadings to state a valid claim
on which [Carr] could prevail, it should do so despite
[Carr's] failure to cite proper legal authority, [her]
confusion of various legal theories, [her] poor syntax and
sentence construction, or [her] unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110.
However, the requirement that the Court read Carr's
pleadings broadly does not relieve Carr of the burden of
alleging sufficient facts on which a recognized legal claim
could be based. Id.
III.
ANALYSIS
A.
Motion for Leave to File a Late Response (ECF No.
470)
Carr's
reply in support of her Motion was filed nine weeks late and
accompanied by a motion to file out of time. (ECF Nos. 451
& 470.) In support of her Motion for Leave to file out of
time, Carr contends that she was, until recently, unaware
that she could file a reply, and did not know whether there
was a deadline for a reply. She adds that she lacks counsel
to advise her on procedures or deadlines. (ECF No. 470 at 1.)
In response, the Government argues that, even liberally
construing pro se pleadings, Carr fails to establish
good cause for her nine-week delay in filing a reply.
While
pro se litigant filings are entitled to liberal
construction, the Court does not act as the pro se
litigant's advocate. Pursley v. Estep, 2006 WL
3097190, at *9 (D. Colo. Oct. 31, 2006). “Pro se
litigants are required to follow the same procedures as other
litigants.” Handy v. City of Sheridan, 636
Fed.Appx. 728, 734 (10th Cir. 2016). The District of Colorado
Local Rules require that a moving party file a reply within
14 days of the response. D.C.Colo.LCivR 7.1(d). The
undersigned's revised practice standards direct parties
to “clearly establish good cause for the requested
extension.” WJM Revised Practice Standard II.D.2.a.
Carr
filed her reply nine weeks late, and did not provide good
cause for the requested extension. The Motion for Leave is
denied, and the Court will not consider Carr's reply
docketed at ECF No. 451. However, in the interest of justice,
the Court notes that even were it to consider Carr's
reply, the below analysis would not change ...