Johnson, Dietrick Lewis Sr.

Opinion

IN THE coURT oF cRIMINAL APPEALS RECE[VE COURTQF DlM 0F TEXAS cR'M/NALAppEALS No. wR-83,532-01 AUG 24 2075 IN RE DIETRICK LEwIS JoHNsoN SR, Relator Abeg ~A§\GSF&,C!@F;(

ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NOS. 219-81234-2012; 219-81235-2012; 219-82905-2012 IN THE 219th DISTRICT COURT FROM COLLIN COUNTY

TO: HONORABLE JUDGE'S OF SAID COURT:

l have forwarded you copies of everything l possibly can, to help assist you in your decision process. However, l have enclosed a copy of my 'C.O.A.' (Certificate of Appealability), in applicant's federal parallel case's. l

Furthermore, there's also Exhibit's (A) and (B), demonstrat- ing when the United States Magistrate Judge granted applicant an opportunity to withdraw his plea of guilty, and when the prosecutorial misconduct and malfeasance in office got the Magistrate Judge fact finding and recommendation denied,

l had my mother send copies of everything she had in her files to said court for review. l just wanted a fair process, ‘which this fiasco denied me due process and equal protection of the law. I hope this C.O.A. will show this court exactly

what the prosecution did in these Cause NOS..

Respectfully submitted,

(S Dietrick Lewis Johns n Sr. 19831-078 '

z ;” l IN THE UNITEDFSTATES COURT OF APP§ALS - - FOR THE FIFTH CIRCUIT

1 S , 1 DIETRICK LEWIS JOHNSON, SR. `§ APPEAL NOS. 4214~CV-46O Petitioner, § ' 4:14-CV-461 _ §. _ * v § 0 DISTRICT COURT NOS.: § hle-CR"OOOBO#OOl §- 4313~CR-00088~001 UNITED STATES OF AMERICA, § ` ’ Respondent. h §, §

R§TITIONER' S APPLl§ATION FOR INSUANC§ OF (C. O. A. ), CERTIFICATE OF

APPEALABlLlTY, PURSUANT TO FED R. APP. P 22(b)

RELI§F SOUGHT

- Petitioner; "Dietrick,Lewis Johnson, Sr.," respectfully

moves this court for a Certificate of appealability, within

the meaning of Section 2253(€) of Title 28 of the United States_

Code and Rule 22(b) of the Federal Rules of Appellate Procedure.

‘GRoUNDS FoR APPLICATION#

Nature of District Court Proceeding

ln July of 2014, Petitioner filed a Petition for a Writ

of Habeas §orpus, pursuant to Section 2255 of Title 28 of the ;1;

United States §ode. ln thaq Petition, the Petitioner argued that his Detention by the Authorities of the Federal Bureau

of Prisons was unconstitutional because:

(_1);

']‘ 15an

PROCEDURAL STATUS OF THE CASE

An Application to the Judge's of the Court of Appeals for

a Certificate of Appealability, is appropriate at this time because: l.- The District Court entered a final, appealable judg¥

ment in this matter on;`"July 29th, 2015," that denied the Peti-

tioner relief on his Petition for Habeas Corpus.

2. "Petitioner desires to appeal this judgment, as is autho* rized by Section 2255(a) of Title 28 of the United States Codeé However, Section 2253(c)(l) and appellate Rule 22(b)(1) require

a Certificate of Appealability, as a precondition of proceeding f ,

with the ppeal.

3. A timely Notice of Appeal was filed in this matter

zon; . .

4. Petitioner's Certificate of Appealability was denied

by the District Court on; "July 29th,_2015."

,__~ ,¢'

ARGUMENT IN SUPPORT oF ISSUANCE OF :§CERTIFICATE or APPEALABILITY §

1 ,»‘. . ' =.~.=:m~ . j

\

lig Petitioner Has Raised Substantial Showing of Denial,: of Cons-

T.titutional Right on Elssue of; GROUND FOUR: in 28 U. S. C § 2255, that his plea of guilty was not knowingly and voluntarily to the full consequences of his federal plea of guilty. On January

30th, 2013, the Court conducted a hearing on Defendant's Motion /

(2)

;1? ~

‘and take the case»before a jury. - s " -

co withdraw Plea Of chilty (Dki. #36).4 The U.S: Assista¢t Dist-

rict Attorney; "Tracey M. Batson;" had Defendant's parallel State Assistant District Attorney; "Cynthia A. Walker," actively

participating in this federal hearing,_sitting at the federal

‘prosecutions table, on video and audio.

On March Lth, 2013, United States Magistrate Judge; "Amos

'L. Mazzant," in his fact finding and recommendation, was to

grant Petitioner an opportunity,to withdraw his guilty plea

_§ At hearing on January 30th, 2013, Defendant's former defense

`.counsel; "Denise¢S. Benson," testified that she meier advised

the Petitioner ;f the consequences that his guilty plea would have on his parallel State case.

Further; the U.S. Assistant D.A. entered an objection March' lSth, 2013,`hy submitting a De;laration; stating that the State

would not use Petitioner's federal plea as a confession in the

jparallel State proceeding. Therefare, seeing that the State

_On April lOth, 2013, the District C_ourt Judge denied_U.S. Magis- w 3 3 § § crate Judge fact finding and recommendation F "

NOTE: On "November 28th, 2012;" -five (5) months prior to the

"U.S. Assist. D§A. entering their objection, the State Assist.

D.A. postponed Petitioner' s parall§l 9: 30 A.M. Pre+Trial Hearingf.!

-before; "Honorable Judge 'Scott J. Becker,'" until 1:30 P.M.

that same afternoon. Further, the State Assist..D§A. drove to meet up with U. S. Assist. D.A. a copy of the

federal plea agreement.

(3)

jAt said postponed 1:30 P.M: Pre-Trial hearing, State Assist. D.A.; "Cynthia A. Walker," entered the federal guilty plea into District §dQ Court (Dkt. 21§-81234~2012 and 2l9~81235-2012), records, as a CONFESSION. >The federal guilty plea was used

as leverage, simply to box the Petitioner into an unconditional State guilty plea.‘ The State Assist§ D.A. plea offerls went vfrom forty (AQ) years,\to fifty (SQ) years, and finally to sixty

(60) years, once the federal plea was entered into the Court's.

f record November 28th, 2012. On‘the-record, after, H%nr Judge .Becker reviewed the~federal plea, h§ reset matter's before him,

to allow th§ Petitioner to be;sentenced on his federal charges

first.

KEY NOTE: Petitioner was not advised of and did not understand .the conseouences of the [guilty] plea. United States v. G'aitan,v 954, F.2q 1001, 1611 (th oir. 1992§(quoring§ United states v

v. Pearson,'QlO F.Zd 221, 223 (5th Cir. 1990)). See: Exhibit‘s

._`

U.S: and §tate Assist: District Attorney's knowingly and: .willfully;entered a fraudu£ent objection, kn§wing it to be false . ;~ § - .= » § March lS§;j 2013. Ihe fed;ral plea was ente§ed as\arCONFESSIdN{ to box the:Petitioner into an unconditional sixty (66) year plea agreement§ Petitioner;§§l§§ discussed wazting to plead guilty in§;he?State parallel ca§e's, the prosecu§ions upward departures demonstrates that fact. Petitioner entered into an unconditional plea of sixty (60) years, A§I§B the federal plea was Q§§Q and ENTERED as a CONFESSION, not for rebuttal

or impeachment purposes.

go

RELEVANT FACTS: Petitioner must have notice 6f the true nature:

of the actual charges that's against him, (U.S. Assistant D.A.

now contends that, 'Petitioner was never charged with weapon violation's). See: The government's response to Petitioner'“

2255 motion, pg; ll, lines 2 and 3 which clearly states that

in Count(l) Petitioner was not charged with the use of a firearm.

But in Count(Z) and Count(3), Petitioner was charged with weaponh violation's and given six (é)ypoints for use of_a firearm¢

Iherefore, the government presented an illegally obtained firearm ' t- as_ evidence, to the: Grand Jury, before their independent role

of investigation; 'April 12, 2012.' The Grand Jury returned

a true bill on“a Superceding Indictment_as followsf "Count(l)

28 U.S.CQ § 2119 on Agg, Car lacki

`0/

ng; Count(Z) 18 U.S. . § 924(c)

'on Possessfon of a firearm during and in relation to a crime ' § of violence; and Count(B) l&€U.S.C. § 922(g)(1; on Felon in

Possession of a firearm."

Petitioner must understand the consequences of his plea,

and must understand the nature of the Constitutional protections

vhe is waiving. Matthew. 201 F. 3d at 365. These Undisp uted ; .: ‘ § § g § 1

Facts, affe;cted the validity: of the waiver itself in 'Cause :_

N¢. 4.12-cR-o0080-oo1. ; »

Defenseicounsel 'Rafael De La Garza, ' cam§'to visit the

Petitioner while he was in 'TDCJ, after counsel an Andersf¢

Brief, and before a copy was mailed to Petition§r. 'Counsel

/

came to tell Petitioner that he was not being paid to file his ‘2255 motion, and about the machinations of the U.S. and State

`Assist. District Attorney's malfeasance in office.

<5>'

§§I§:f waivers; What exé€tly iS:a "collateral attack waiver?"

"A collateral attack is an attack on a Judgment other than a

direct'appeal." wall v. Kholi, 131 S.cc~ 1278 (2011). A typical

collateral attack would be a Section 2255 motion challenging

that defense counsel's was ineffective. These attacks are colla- teral, because Petitioner is attacking his conviction or sentence

indirectly, or from the side (as collateral means), by claiming_

that counsel was at fault for the error. b direct appeal, on `the other handy is a direct attack on the error itself and is actually part of the criminal pr§ceeding.

Waivers of the right €o appeal have been-around a while

,and the courts generally allow these waivers, because a defendant

has no Constitutional right to appeal; it is a statutory right.

`Joneé §. Barnes, 463 U. s 745, 751 (1983) This doesn' t mean

you can' t waive your Con stitutional rights, however, because

by pleading guilty you are already_waiving your right to a jury

trial¥~which is'a Sixth Amendment right. _See: United States‘

v. Rulz; 536 U.S. 7622, 628 (2002). 1 ll Conflict of lnterest:

The Kentucky State Supreme Court just.said that collateral

attackiwaivers "create a non waivable conflict of interest bet-

ween the Defendant and his attorney. Unit-ed States v. Kentucky,

State 3ar Assoc., No. 20013- SC- 000270- KB (ky. 2004). The dourt?

also sa§d it is an "ethiqal breach" by defense counsel. Id.

When viewed through the lens of conflict of interest, the problem

of collateral attack waivers becomes quite clear. "Counsel

owes the client a duty of loyalty, a duty to avoid conflicts

__<6)

Of iateresc." rscri¢kland v. washington, 466 U.S. 663, 688 (1984)

The Sixth Amendment right to counsel includes the "right

to representation that is free from conflicts of interest,"

wood v. ceorgid, 450 U.S..261, 211 (1981), and this "Confiicc

free" representation extends to plea`negotiations.’ Moore v.

U;S§, 950 F.Zd 656, 660 (CAlO 1991). The Supreme Court even

said that if a Petitioner can show counsel operated under a conflict of interest, he doesn't even have to show that he was

prejudiced (that counsel's errors changed the outcome of the ` f

proceedings). Cuyler vi Sullivan, 446 U S. 335, 350 (l980)`>j

::Conflicts of interest are of great 1nterest to the courts.

Plea Agreements are Contracts:

Santobello v. New York, 404 U.S. 257, 262-263 (1971).

.So, if we take -a look at how a conflict of interest would affect

a contract' s validity, we see more issues that are fatal to

the plea agreement, or Vcontract." If a party commits FRAUD

while negotiating a contract, the contract is void as if it never existed.' Godly v. United States, 5 F.3d 1473, lézb (Fed.

Cir; 1993)("A contract tainted by fraud...is void ab initio"). NOTE: The government, in its objection, submitted a fraudulent

w

-Declaration from the State, stating that they would not use

the the ,federa$l plea as a CONFESSION, in Pet1t1oner s parallel

§:

iicase' s; March 18th, _2013." But, they knowingly and willfully

'entered the plea as'a CONFESSION; November 28th, 2012."

RELEVANT FACTS: The government commits fraud during contract

negotiations when it places a provision in the contract it knows

will create a conflict of interest between defense counsel and

(7)

the defendant. A collateral attack waiver creates a conflict of interest between defense counsel and the defendant because

it is unethical for defense counsel to advise his client to

*,:

enter into a contract (to accept a plea offer) when the contract

has a waiver preventing the client from later challenging his

lawyers advise. The Bar Associations_flatly says this is a` conflict of interest, and now the courts are saying the same¢ What is fraud? "Fraud is a generic term." Ragland v. Shattuck National Bank, 36 F. 3d 983, ~990 (CAlO 1994). ~lt encompasses ?. a broad range of ways 'by which another is cheated. Id. _There are actually 2 types of fraud 'Intentiomal and Contructi§ei' n

Id, lntentional is when, obviously, a party intends to deceive

the other party. Contructive, though, is broader and covers

'even intentional deception.

:.\

For enample, when the government places a collateral attack

waiver in the plea agreement, it creates a conflict of interest.

And because the government knows this but fails to say anthing,

it is fraud because the defendant has 'an-underlying'right to

be correctly informed of the facts.’ "ld. Fraud occurs when_

h ,,;

". '_‘\ ‘.?’ v

.§ _ ' § _ ` ' a§party in an agreement has a duty _to speak but 'fails to dis-

~¢ ,,

” ’f.-.» v kim ir

close the whole truth;' ld. at 991. The government, as a party ;j-

in the contract, has §the obligation to :say the waiver could

c_ause a conflict of interest. It is:constructive fraud when is

the government knowingly remains silent on that issue. §Again,

any fraud in a contract voids the contract as if never exist-

a a a v _ a

ed.

KEY NOTE: On October 14;:2014, Attorney General Holder directed

his prosecutor's not to enforce collateral attack waivers in

(8)

‘;).', _. '-.: iwq. 4

' 4

existing plea agreements. And when the government:purposely

avoids enforcing a waiver provision in a plea agreement, the court abuses its discretion if it raises the issuez% Seef Wood v. Milyard, 132 S.Ct. 1826, 1833an. 5 (2012). This would now

allow those who have been prevented from raising IAC claims

in a Section 2255 no file their claims.

NOTE:_ The District judge denied Petitioner's 28 U.S.C. § 2255

motion, stating that he has not shown‘that the waiver was tainted by ineffective assistance of'counsel. However, not only did,

Petitioner clearly demonstrate prosecutorial miscond§ct, that

was so fundamentally defective it resulted in a miscarriage

of justice. Furthermore, in a Rulle (11) proceeding, it is mandated that the judge comply with Rule (11). The Trial judge must p ersonall y inquire whether the defendant understood the nature of the charges against him. On the record, the court z asked the defendant was he taking any illegal drugs, and hew replid by saying;R:NO." The court, not once asked the defendant

was he taking amy medication(s) prescribed by a doctor, for

'»'€ s ~ 3

any medical reasons. The defendant was taking the prescribed

-drug; 'Zoloft' ;that was prescribed by Urologist; "Dr. Stephen

f Ash," for premature ejaculation suffering from Bladder Cancer.

§

.This drug is known to treat people who are suffering from depres-

sion or some form of mental deficiencies. Defenda§t was taking

this drug for three (3) to four (4) times a day, up until his arrest; "March 26th, 2012. Therefore, it was impossible for

the defendant to understand the true nature of the charges again-

<9)__

plea; and (3) the accused must understand the nature of the

f:st him, and the consequenées of his guilty plea. Rule (ll),* §

d in United States:v{ Dayton, supra, held that Rule (11) has three

core concerns: (l) a guilty plea must be free from coercion;

(2) the accused must know the direct consequences of the guilty

charges against him. McCarthy vt United States; 394 U.S. 459,

22 L. Ed__.__ zd_,z»ia, 89 S.Cr_.d_116_6.

/ . ~ Defense counsel; "Rafael Da La Garza," was also Petitloner's

;;»counsel on his §arallel state case’s§ Counsel not?only failed - S, ,zto have his client.evaluated as prbmised, but he alfpwed him

~to plead gdilty in open couri} to charges tha§;he knew the defe§;.

dant did not commit. Counsel was aware that Petitioner wanted to take all his case’s to trial, but hired a private investigat- or, not to investigate his client' s innocence, but to help him

1\

persuade the defendant that he had no leg to stand on. Counsel,

vdid not want to get caught up in another Trial, seeing that

he was more concerned about flying back and forth to defend his big boy (drug dealer) in Chicago, Illinoist` Counsel knew. ‘ § that th:re was some form of mental confusion with his clienti ` _;- 53 32 ‘ .S.= '

who tried to withdraw from his guilty plea tw1ce, scared off¢'1

two defense counsel's in his mental state and caught three (3) additional charges while awa1t1ng Trial on Cause No. 4:12-CKFE: 80. Please.gefer to Pet1t10ner' s 28 U.S.C. § 2255 motion, a:`ff:i-}l davit-in:support;~exhibit§s, mainly the letter counsel wrote

to the defendant, after he told counsel that he violated his

5th Amendment: See also Exhibit;C, where Petitioner was trying

to get Discovery to prove his innocence, and was denied that

right, Se Exhibit-D, when U.S. Magistrate judge denied motion,

(-1_@)

II. lhe`Suprene Court has stated that ad Attorney who see§

' to file an Anders Brief should consult with his client, to ascer- tain if he has any issues to nursue on appeal. Counsel never did, and was ineffective for not raising a "DEAD-BANG" WINNER

ON Direct appeal. Velarde v. U.S., 927 F;Zd 826 (Tth Cir. 1992). .See also; hehry V. Scully, 18 F.jd 51 (an Cir.*lQ§é).

III. The Supreme Court has also held that a Qefendant is entitf led to§a¢Combetency hearing and'that the conviction may be over- turned if the%Court knew, or‘should have known, what the Defen-‘ dant was incon§etent, and it fa1:ed to hold a Comjetency hearing.

Pate v. §obinson, 383 U.S.:375 (1996). Dropg v. Missouri, 42§

q U.S. 162 (1975).. Bouch1110h v. Coilins, 907 F. 21 539 (5ch cir

1992). Counsel was ineffective for not ra1sing Competency claims:

`John§£on v. S1ng1ecary, 162 F. 3d 630 (11 th 011.1998). Theiiot

v; wh1t1ey, 18 F. 3d 311 (Sth C1r.1994).

Counsel was also fully aware of the Prosecutori al Misconduct

and then, he filed an Anders v. California, stating that Petit1o- ner had no g§ounds to abpeal» Counsel Prejudiced Petitioner's

entire appeal process, by even taking on his Direct appeal, § § 1 §

knowing that he would not protect this Petitioner s Constitution- al rights, by filing ineffective assistance of Trial counsel

»:on himself{ ' f ' 3 f ' 1 f -. ‘.L _ ~ ~, ._:|_:; ~_ ,_.L ~_ ._1_. z

11 cr1m1na1 cause 101 4.13-CR-00088 001 and 1n c1v11 cause

No. 4:14-CV-461, the government Prejudiced the Petitioner when they convicted and sentenced him, On an Indictment that was returned by a Grand Jury whose Term Had Expired Therefore,

the case should of been dismissed with Prejudice.

4'_<11)

IV. Petitioner Has Satisfied All Pfocedural§Prerequisites for;

d

Action by This Court.

As shown in the Supporting Affihavit of; "Dietrick Lewis_

ll

'Johnson Sr.,. the Petitioner has satisfied all of the procedural

prerequisites to action by this Court on this Application for

a Certificate of Appealability:

l. ?The Petitioner has.filed a timely Notice of Appeal. §. 2. th"July 29ch, 201§§,_" the District G`.ourn DENIED this:‘§._`

Pet1tioner a Certificate of Appealabil1ty, prior to applying

for a Certificate from this s_aid _Court.w

'3. The Petitioner has made more than a good faith`effort

»

to comfort this Application to all of the requirements set out

.in Appellate Rule 22 and Petitioner!s Institution

(Beaumont FCI Complex (Med)) cannot supply him with the Sth Circuit Rule, with their current system.

\4. The Petitioner has served all parties_to this action

with a copy'of this Appl ication and Supporting Paper' s, as shown

'.'¢~, h ';= 3 53 ' 3 j §§ "T

in the Attached Certificate of Service. §

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y. _ `. _ ~¢.

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<12)"`

§The Petitioner has also supplied this court Mith a copy of the District court's decision and will supply this court with any additional materials or arguments that it deems

necessary for a prompt resolution of the Application.

\

CONCLUSION

_Eor the reason stated above§ Petitiomer and Appelant;?

jVDietrick Lewis §ohnson Sr.," respectfully requests that this is

court issue the requested Certificate of Appealability, on the

issues set forth in this Application.

Z'J - v v .~- v ' l \ il

§ ' ~' ' ¢' m ’ `\1d%;:Q;

ad Beaumont FCI Complex (Med)

f P. 0. BOX 26040-j §

3 § § Beaumont Texas§ 77720 §§ - Datedkr vi ' ‘ j .; ' »>-? ,§ l I l \\ i d d § l 's l § § i § ( 1 3) `

EXHIBIT-A

§ ' NiTED sTATEs oF AMER|cA|-§Lsi §DiETRicK L___Ewls JoHNsoN ' § ‘ uNiTED sTATEs DlsTRlcT couRT FoR T EAsTERN DlsTRlcT oF TExAs, s'HERMAN

DivisioN 1 2013 u.s. Dist. LExls 52385 ' f case No. 4:12cr80 § March 4, 2013, oecided ‘ March 4, 2013, Filed

Editoria| lnformation: Subsequent History

Adopted by, Motion denied by United States v. Johnson, 2013 U.S. Dist. LEX|S 51448 (E.D. Tex., Ap`r. 10, 2013)

Counsel For Dietrick Lewi§\glohnson, Defendant: Rafael De La Garza, |l, LEAD § ATTORNEY, De La Garza Law Firm, P|ano, TX.

§ For USA, P|aintiff: Tracey M Batson, U S Attorney's Office, U S f Dept of Justice, Plano, TX

Judges: AMOS L l\/lAZZANT, UNlTED STATES MAG|STRATE JUDGE Judge Crone. ! - .

l

Opi_nion 1 ‘.

opinion by. Aivios L.MAZZANT -. if

l:'i.l ‘ “§ Op§ ron

\ 1 ‘ ` ¢ § 1

REPORT AND RECOMMENDAT|ON OF.UNITED STATES MAG|STRATE JUDGE

This matter having been referred by the Honorable Mar'cia A. Crone, the Court held a hearing on § ;\4 January 30, 2013, on Defendant's Motion to Withdraw Plea of Gui|ty (Dkt. #36). ln his motion, 1 i “ `*' Defendant seeks to withdraw his guilty plea, which was accepted by the District'l)udge on August 8, 2012 (Dkt #28).

BACKC-§§ROUND_§~l

On August 7, 2012, Defendant appeared before the undersigned for his change of plea hearing Defendant pleaded guilty to count one of the indictment charging a violation of 18 U S. C § 2119, i Car Jacking. On August 7, 2012, Findings of Facii' and Recommendation on Gui|ty P|ea were entered. On August 8, 2012, United States District Judge Marcia Crone adopted the report, finding Defendant guilty of count one of the indictment Defendant's plea agreement was pursuant to Fed. R. Crim. P.'11(c)(1)(C) where the parties agreed the appropriate sentence in this case is twenty (20) years. ' 1 \=' '

On October 5, 2012, Defendant filed a motion to withdraw his plea of guilty. On Cotober 19, 2012, the Court conducted a hearing on the motion, a§'§d `at the hearing, Defendant withdrew his motion, On November 29, 2012, Defendant filed another m tion to withdraw his guilty plea On January 28,_` § 2013, the Government filed a response. On Ja ary 30, 2013, the Court conducted a hearing on the motion At the hearing, Defendant testified, as d|his former counsel, Denise Benson. At the end of the hearing, the Court rejected all of Defendant'i arguments except for one. The Court §had a § question whether Defendant s plea of guilty was a knowing and voluntarily plea, when Defendant

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and terms and conditions of the Matthew Bender Master Agreement. w . .- (. . § 115 .. 1 . i ».

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indicated he did not know that his federal plea could be used against him in a parallel state proceeding. The Court allowed the parties to file additional briefs on this issue. On February 8, 2013, Defendant filed a brief, and on February 13, 2013, the Government filed a responsive brief.

ANALYS|S Standard of Review

1 . According to Rule 11(d)(2)(B) of the Federal Rt`i‘|e§s of Criminal Procedure, a district court may grant a motion to withdraw a guilty plea before sentencing if the defendant shows "a fair and just reason." Fed. R. Crim. P. 11(d)(2)(B). There is no absolute right to withdraw a guilty plea, and the Defendant bears the burden of establishing a fair and just reason for withdrawing her plea. United States v. Puckett, 505 F 3d 377, 382 (5th Cir. 2007)(citation omitted); United States v Lampazianie, 251 F. 3d 519 523- 24§ (5th Cir. 2001). ln deciding whether to permit a defendant to withdraw a guilty plea, the C§ourt' 1s granted "broad discretion " United States` §v. Carr, 740 F. 2d 339, 344 (5th Cir.1§984)(citation omitted). ,

l ., 11 § 1 1 . To determine whether a defendant may withdra §plea of guilty prior to sentencing this Court must § , look at the following factors: (1) whether the De n§dant has asserted his 1nnocence; (2) whether the § ' government would suffer prejudice if the withdrawal of the motion were granted; (3) whether the § Defendant has delayed m filing his withdrawal motion; (4) whether the withdrawal would substantially § . inconvenience the Court; (5) whether close assistance of counsel was available; (6) whether the ‘ ' original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial § ’ resources Carr, 740 F.2d at 343-344. The Court is not required to make a finding as to each § §`;' 1§, 1 § individual factor United States v. Powel/ 354 F. 3d 362, 370 (5th Cir 2003). The Carr factors are § j f‘ considered for the totality of the circumstances and no single factor ls dispositive L§am§pazianie, 251 " ' ' F. 3d at 524; Pow'el/, 354 F 3d at 37.0 511 "

21 l_: , . 4 ` '1:.'3'3'§..-.`.@ ‘ .1'1'

Discussion

Defendant' s main argument in support of his claim that there is a fair and just reason to allow him to withdraw his guilty plea ls that he did not knowin ly or voluntarily enter a guilty plea. Defendant bases this argument on the fact that prior coun§‘e rdid not explain to him that his plea in federal court could be used against him in a parallel case in state court 1n Collin County§ Texa§s.

"§For a plea to be knowing and voluntary, ‘the defendant must be advised of a'nd understand the consequences of the [gui|ty] plea. United States v. Gaitan, 954 F. 2d 1005, 1011 (5th Cir. _ 1992)(quoting United States v. Pearson, 910 F. 2d 221 223 (5th Cir. 1990 )) Defendant must have - 4 notice of the nature of the charges against him,= _§he must understand the consequences of his plea,

§ and he must understand the nature of the constitutional protections he ls waiving Matthew, 201 F 3d § at 365 For 'a guilty plea to be voluntary it must 'not be the product of 'actual or threatened physical |

harm, or. .rnental coercion overbearing the w§i` o the defendant' or of state- induced e§motions so intense that the defendant was rendered unabl` to§ weigh rationally his optio§n§s with the help of ‘ counse|. " Id. (quot§§ing§ Brady v. United States, 3 §U S. 742, 750, 9§0 S Ct.1463, 25 l_. §§_E§d. 2d 747

(1970)). §§§ .. . . , \. § , ,§i§

ln this case, t'ne Court informed the Defendant of the nature and consequences of his guilty plea _ ,

The Court informed Defendant of the rights he gave up when pleading gui|t§y, the potential sentence§ ii §§

he faced for pleadmg guilty, and the specific elements of th§e crim§e. ‘ ~ '1 . §§§ §§ . §§§

have on his parallel state case. §Defendant further testified that he not did know that his guilty plea and factual statement could be admitted into evidence against him in the parallel state proceeding

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Defendant further testified that had he known that his plea of guilty 1n this case could be used against him in his state case, he would never have pleaded guilty in the federal case. ' ~

Ms Benson§ then testified that she could not recl | || ever having the conversation with the Defendant where they discussed the consequences of his lea of guilty 1n his parallel state case Ms Benson § testified that it is her practice to do so, but§tha§ ` e could not recall doing so in this casé. l\/ls. Benson § further testified that Defendant had informed he that he wanted to enter a plea to his state charges.§ '

However, no plea of guilty ever occurred 1n the`s§tate proceeding ' § 1 §

n their supplemental briefs, neither party was able to locate any Fifth Circuit case that addresses this situation. The Government does point out that "upon a showing of a 'fair and just reason' a district , court may permit a defendant to withdraw a guilty plea at any time before sentencing " 1 The Court § l. finds that the facts of this case demonstrate a fair and just reason to allow Defendant to withdraw his , plea of guilty. |n this case Defendant testified that he would never have entered his plea of guilty to "' his federal case, if he had known that his plea here could have been used against him in his parallel state proceeding The Court also has the testimony of his defense counsel, l\/_ls. Bensonl that

although she typically informs her clients of this situation, she cannot recall doing soin this case. Since she cannot reca||, the Court finds that there is no evidence that such warnings were given. Although the plan may have been for Defendant to enter a plea 1n state court, no such plea ever took place. l\/loreover, in the state case, the Court g'§v 1e the Assistant District Attorney the opportunity to stipulate that the state would not use his federa plea as a confession 1n the parallel state proceeding, but the Assistant District Attorney would not so certify. lf the state had certified, the Court would see that the failure to advise would be harmless. Since the stipulation did not occur, the Court must find that Defendant' s plea was not made knowingly or voluntarily to the full consequences of his federal plea of guilty. The Court finds, based upon the totality of the circumstances that there is a just and fair reason t_o allow Defendant to withdraw his plea of guilty. ,

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During the hearing, Defendant was advised by c unse| and the Court of the consequences of 1 withdrawing'. his plea Defendant was informed t at' if he proceeds to trial he could receive a longer ' ' sentence than contemplated by his plea agree,: r§§. Defendant stated that despite the *` § § consequences, he wanted to withdraw his plea "`nd proceed to trial_. , . § § -' §

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REcoMMENnAT1oN ' ' 1

The Court recom:mends that Defendant's Motion to Withdraw P|ea of Guilt_y (Dkt. #36) should be GRANTED. " ‘ 1.

§ 1 _ 1 ~ ' 1 1 Within fourteen (114) days after service of the magistrate judge' s report, any party may serve and file' § § written objections to the findings and recommendations of the magistrate judge 28 U. S. C. § ' j 636(b)(1)(C). `1" "1~1 ;i . l .;;1:;1’ s 1 1

Fai|ure to file written objections to the proposed findings and recommendat1ons contained in this report within fourteen days after service shall bar an aggrieved party from duel no`_vo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest .. injustice Thomas v. Am, 474 U.S.__140, 148, 106’1S.Ct.466, 88 L Ed. 2d 435 (1|985); Rodriguez v. Bowen 857 F 2d 275, 276- 77 (5th Cir. 1988) ' ” ~ . . ,

SlGNED this 4th day of March, 2013. /s/ Amos l_. EMazz'ant §§ , , . l § AMOS L. MAZZANT

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The Governm'ent s supplemental response brief reviews what occurred at the Court' s status conference when Defendant decided to not go f _ rw_ard with his first motion to withdraw his plea. The Government asserts that Defendant appeared t_ believe that the federal and state sentences would. be served concurrently. Although the recor;d is t clear on this point, it appears that Defendant thought that the sentences would run concurren: y and that after he finished his federal§ time, his state sentence would also be completed. Howev]er the state court plea never occurredI

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EXHIBIT-BY

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uNiTED sTATEs oF AMERicAv" l r.§'us DiETRicK LEwis JoHNsoN §

UN|TED STATES DISTRICT CCURT FOR`THE EASTERN DISTR|CT OF TEXAS 2013 U.S. Dist. LEXlS 51448 §.

CRIM|NAL ACTION NO. 4:12-CR-80 ' §

April 10, 2013, Decided j

April 10, 2013, Filed

Editorial lnformation: Subsequent History

Appeal dismissed by, Motion granted by United States v. Johnson, 2014 U.S. App. LEXlS 14029 (5th ' Cir. Tex., July 23, 2014) §

Editorial lnformation: Prior History cry tinited States v. Johnson, 2013 U.S. Dist. LEXlS‘52385 (E.D. Tex., lVlar. 4, 2013)

¢ounsel For Dietrick Lewis Johnson, Defendant: Rafae| De La Garza, ll, LEAD' y l ‘ ATTORNEY, De La Garza Law Firm, P|ano, TX. '

§ § For USA, Plaintiff: Tracey M Batson, U.S. Attorney's Office, U S l l § Dep’t of Justice, Plano, TX. '§ § , v . Judges: l\/|ARC!|A A. CRONE, UN|TED STATES D|, TRlCT JUDGE. §

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MEMORANDUM ADOPT|NG REPORT AND RECOM|\§|ENDAT|ON OF THE UN|TED STATES' \ MAG|STRATE JUDGE .

Came for considei"ation the report of the United States Magistrate Judge in this action, this matter

having been heretofore referred to; the United States‘l\/lagistrate Judge pursuant to 28 U.S.C. § 636.

On March 4, 2013,` the report of the Magistrate Judge was entered containing proposed findings of

fact and,recomm_endlation that the Defendant's Mrotion to Withdraw P|ea of Gui|ty (Dkt. #36) should . dig

be grah`ted. ‘ '

On lVlarch 4, 201»3,?= the Magistrate Uudge recommended that the motion be"gr`anted. The Magistrate, Judge indicated that he gave the Assistant District Attorney the opportunity to stipulate that the state would not use Defendant's federal plea as a confession;in the parallel state proceeding, but the ' Assistant Di;strict Attorney would not so certify. The l\/lagistrate Judge then found-that if the state had ' certified,'the Court would see the failure to advise_as harmless. The Magistrate Judge only determined ithat,,since there was no stipulation,§ he` Defendant's plea was not made knowingly or l voluntarily to the full consequences of his federl pi|ea of guilty. i i

On March 18, 2013, the Government filed §obje i ns. As part of the objections, the Assistant District ` ` "' Attorney has now‘certified that the State of Tei<-s §§vill not use the evidence of Defendant's federal l § § plea against him in the state's case in chief, res_’rving the right to use his federal plea for rebuttal and '

impeachment The Court agrees with the l\/lagis`t:rat`e _Judge that once the State of Texa:s made the ' § 1

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` ‘ certification that it would not use the federal plea against Defendant' in its case in chief,’ i the error wa harmless. _ . 1

The Court, having made a de novo review of Government's objections,` is of the opinion that the_

findings and conclusions of the Magistrate Judge are correct, and the objections are without merit _ Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge, in part, as the findings and conclusions of this Court. lt` is accordingly

ORDERED that the Defendant's Motion to Withdraw Plea of Gui|ty (Dkt. #36)' is DEN|ED. SlGNED at Beaumont, Texas, this 10th day of April, 2013._

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