United States v. Carr

          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 ...