Isner v. United States

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE

         The above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge Robert W. Trumble. ECF No. 89 in 3:15-CR-12. Pursuant to Rule 2 of the Local Rules of Prisoner Litigation Procedure, this action was referred to Magistrate Judge Trumble for submission of a proposed report and recommendation (“R&R”). On June 15, 2017, Magistrate Judge Trumble filed an R&R in which he recommended that this Court deny and dismiss with prejudice the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 89 in 3:15-CR-12.

         I. Background

         On March 15, 2015, a two-count indictment charged Petitioner with bank fraud and making false statements on a loan application in violation of 18 U.S.C. § 1344 and 18 U.S.C. § 1014. ECF No. 1 in 3:15-CR-12. On June 4, 2015, the Petitioner signed a written plea agreement, pleading guilty to Count Two which charged him with making a false statement on a loan application. ECF No. 33 in 3:15-CR-12.

         On the same day, Petitioner appeared before the magistrate court for a change of plea hearing. Petitioner testified that he was 47 years old and that he had attended college. ECF No. 56 at 4:19-22 in 3:15-CR-12. Then, the magistrate court engaged in the following colloquy with Petitioner:

THE COURT: Mr. Isner, a couple of questions about your representation. Do you believe you have had adequate time to discuss your case fully with [your counsel]

Mr. Compton?

THE DEFENDANT: I do.

THE COURT: Has he been able to answer your questions about how best to proceed in this case?

THE DEFENDANT: He has.

THE COURT: Is there anything your lawyer has not done which you have asked him to do?

THE DEFENDANT: Not that I can think of.

THE COURT: Are you completely satisfied with the legal advice that you have received from Mr. Compton?

THE DEFENDANT: Yes.

         ECF No. 56 at 7:10-22 in 3:15-CR-12. The magistrate court then reviewed the plea agreement with Petitioner to ensure that he understood and agreed with the terms therein. Id. at 22:10-14. Thereafter, counsel for the Government presented testimony of FBI Special Agent David Rauser to establish the factual basis for the plea. Id. at 24-30. Following direct examination of the Agent Rauser, the Court afforded Petitioner's counsel and Petitioner himself the opportunity to question the witness. Petitioner did not contest the factual basis for the plea, and both he and his counsel declined to question the witness. Id. at 30:10-22. The magistrate court next asked Petitioner what he did to make himself guilty of Count Two, to which the Petitioner responded that he lied on his loan application, claiming that he was the owner of property that he did not in fact own. Id. at 31:3-23. Finally, the magistrate court reviewed the rights that the Petitioner would waive by entering the plea, including the waiver of appellate and post-conviction relief rights, and found that the Petitioner understood the consequences of his plea. Id. at 37:15-38:18.

         On October 10, 2015, Petitioner appeared before this Court for a sentencing hearing. ECF No. 42 in 3:15-CR-12. This Court found a base offense level of 11. ECF No. 47 in 3:15-CR-12. With a criminal history category of V, the Guidelines provided a sentencing range of 24 to 30 months of imprisonment. Id. This Court sentenced Petitioner to 30 ...