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Gary Crowe v. United States of America

December 8, 2010


The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING MOTION Petitioner, Gary Crowe, moves pro se to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent opposes his motion.


Crowe was indicted for one count of conspiracy to distribute or possess with intention to distribute marijuana and two counts of distribution of marijuana on April 23, 2008. On April 30, 2008, Crowe made his initial appearance before Magistrate Judge Mark Moreno. His arraignment was May 6, 2008. On September 4, 2008, Magistrate Judge Moreno held a hearing on Crowe's motion to suppress statements he made to federal law enforcement officers. Crowe's attorney argued that Crowe's waiver of his Miranda rights was not knowing and voluntary and that the officers illegally searched Crowe's residence. On September 8, 2008, Magistrate Judge Moreno issued his oral report and recommended that Crowe's statements be admitted. CR Docket 43.

On September 18, 2008, a non-binding plea agreement and factual basis statement were filed. CR Docket 47-49. On October 14, 2008, Crowe appeared before the court for a change of plea hearing and pleaded guilty to Count I of the indictment, which reads:

On or between the first day of January, 1997, and the 1st day of February, 2008, Gary Crowe did knowingly and intentionally combine, conspire, confederate and agree with others, known and unknown to the Grand Jury to knowingly and intentionally distribute and possess with intent to distribute marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 846.

CR Docket 1. During the change of plea hearing, Crowe acknowledged receiving a copy of the indictment and discussing the charges against him with his attorney. Docket 9-2 at 4-5. He asserted that he understood the plea agreement and had discussed it with his attorney. Id. Moreover, the court advised him of the essential elements of the offense to which he was pleading guilty. Id. In addition to the plea agreement, the parties entered into a written factual basis statement. CR Docket 49. The factual basis statement advised Crowe that at least 80 but less than 100 kilograms of marijuana were attributed to the conspiracy. Id. The presentence report held Crowe accountable for the same amount; Crowe did not object to the drug quantity in either. Docket 9 at 5.

Crowe filed a Notice of Appeal on February 11, 2009. Respondent moved for a dismissal of the appeal because Crowe waived his right to appeal if he received a sentence within the advisory guideline range. On March 12, 2009, the Eighth Circuit dismissed his appeal.

On November 23, 2009, Crowe filed this motion to vacate, set aside, or correct sentence. In his submissions to the court, Crowe argues that he was not aware that he was charged with a conspiracy to distribute or possess marijuana and that he believed the drug quantity attributed to him was 100 grams, rather than 100 kilograms. Docket 1. Crowe asserts that his plea was not knowing and voluntary as a result of these mistakes. Id. He also argues that he received ineffective assistance of counsel. Docket 10. Respondent argues that Crowe's plea was knowing and voluntary. Docket 9.


Section 2255 provides that a federal prisoner may move to vacate, set aside, or correct his sentence on the grounds that it was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255. But "[a] § 2255 motion is not a substitute for direct appeal." Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995). Thus, § 2255 claims may be limited by procedural default. Id. While procedural default is an affirmative defense, a "federal court, in the exercise of its judicial discretion, may address procedural default despite the failure of the [government] to preserve or present the issue properly." King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (citing Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir. 1999)). Thus, this court considers whether Crowe has procedurally defaulted his claims.

The procedural default rule applies to a conviction obtained via a guilty plea. Kowal v. United States, No. 09-0125, 2010 WL 2265699, at *3 n.5 (N.D. Iowa June 3, 2010) ("The procedural default rule applies to a conviction obtained through trial or the entry of a guilty plea."). See also United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (noting that a guilty plea waives all non-jurisdictional claims arising from pre-plea events); Cardenas-Celestino v. United States, 552 F. Supp. 2d 962, 965 (W.D. Mo. 2008) (noting that because criminal defendants may waive their post-conviction rights the filing of a § 2255 motion may be in violation of the terms of a plea agreement); Abney v. United States, No.4:07CV01240 2008 WL 1913974, at *1 (E.D. Mo. Apr. 25, 2008) (holding that a § 2255 motion failed because the petitioner waived the arguments he was raising in his plea agreement). Crowe's direct appeal was dismissed because he waived his right to appeal unless he received a sentence outside of the guideline range. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in a habeas action only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998).

Crowe did not raise the issue of whether his plea was knowing and voluntary on direct appeal. As a result, the claim is procedurally defaulted. Crowe has not argued that he is actually innocent, but rather disputes the drug amount attributed to him in the plea agreement and factual basis statement. Nor has he argued cause and actual prejudice. Thus, Crowe's claim that his plea was not knowing and voluntary is procedurally defaulted for failure to raise the issue on direct review. This claim is dismissed.

Ineffective assistance of counsel claims are treated differently. The Eighth Circuit ordinarily defers those claims to § 2255 proceedings. United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) ("Except where a miscarriage of justice would obviously result or the outcome would be inconsistent with substantial justice, ineffective assistance of counsel issues are more appropriately raised in collateral proceedings . . ."). Thus, the court will consider the merits of Crowe's ineffective assistance of counsel claim.

Crowe asserts several grounds for his claim of ineffective assistance of counsel. He argues that his counsel was ineffective in failing to present certain facts in his motion to exclude Crowe's confession. Specifically, Crowe states "surely this Court would have felt differently about the voluntariness of the alleged confession if counsel had provided all of the relevant factors which weighed on the matter." Docket 10 at 7. Crowe also alleges that he was not shown ...

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