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United States v. McCoy

United States District Court, D. Nevada

April 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARREN LAMONT McCOY, Defendant.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In a previous Order, the Court resolved one ground (count two) raised in defendant Darren Lamont McCoy's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“Motion”), and set an evidentiary hearing on the remaining ground (count one). (ECF No. 126.) The Court held the evidentiary hearing on August 12, 2015. (ECF No. 201.) The parties filed post-hearing briefs. (ECF Nos. 216, 217.) The Court has considered the testimonies and evidence presented at the evidentiary hearing and has reviewed the parties' briefs. The Court finds that McCoy has not demonstrated that his counsel was ineffective in representing him in the plea negotiations in this case. Accordingly, the Court will deny the Motion with respect to the remaining ground.

         II. RELEVANT BACKGROUND

         A. Procedural History

         On December 14, 2011, the Grand Jury indicted McCoy on one count of felon in possession of a firearm. (ECF No. 1.) On July 3, 2012, the Grand Jury returned a Superseding Criminal Indictment charging McCoy with six counts, including one count of felon in possession of a firearm, two counts of interference with commerce by robbery and two counts of possession of a firearm during, in relation to, and in furtherance of a crime of violence. (ECF No. 45.) The Superseding Criminal Indictment alleges that McCoy was involved in two robberies-one of a Pizza Hut and another of a Subway-on November 17, 2011. (Id.)

         On July 6, 2012, at a hearing on pending motions, McCoy's counsel represented that the parties were in the process of negotiating a plea and counsel would refile the motion to suppress within one week if plea negotiations were unsuccessful. (ECF No. 53.) The plea negotiation was unsuccessful and on July 20, 2012, the Magistrate Judge heard argument on McCoy's motion to suppress (ECF No. 57). The Magistrate Judge subsequently issued a Report and Recommendation recommending that McCoy's motion to suppress be denied. (ECF No. 61.)

         On September 24, 2012, shortly before the scheduled trial, the parties entered into a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (C) (“Plea Agreement”). (ECF No. 83.) McCoy changed his plea to Counts 5 and 6 of the Superseding Indictment and the Court accepted his guilty plea on September 24, 2012.[1](ECF Nos. 83, 84.) After two hearings, the Court accepted the terms of the binding Plea Agreement and sentenced McCoy to a total sentence of three hundred (300) months on Counts 5 and 6. (ECF Nos. 89, 93, 96.)

         Following his unsuccessful direct appeal, McCoy filed the Motion, asserting two grounds for relief. (ECF No. 119.) The Court rejected count two-defective sentencing procedure-and set an evidentiary hearing to resolve count one-ineffective assistance of counsel in plea negotiations. (ECF No. 126.)

         B. Facts Pertinent to Ground Two

         At the end of June 2012, the parties discussed a “global resolution” for McCoy to plead guilty to certain charges in his state court cases (“State Case”) and the charge in this case (“Federal Case”).[2] (ECF No. 213 at 24; Ex. 500.)[3] Counsel for McCoy, Saraliene Smith Durrett, had informed the government's counsel, Phillip Smith, that McCoy wanted a global resolution to resolve his State Case as well, although she did not represent him in the State Case.[4] (ECF No. 213 at 24.)

         In an email to Ms. Durrett on July 5, 2012, Mr. Smith described the offer that the state prosecutor would accept in exchange for a guilty plea in two of the three state cases-agreement to “the large habitual and a total sentence of 10 [to] life for each case, to be served consecutively between the two cases, for a total sentence of 20 years.” (Exh. 12.) As for the Federal Case, Mr. Smith agreed to accept a guilty plea to the felon in possession count and one count of robbery and a 20-year sentence in exchange for dismissal of the remaining four robbery counts with the sentence in the Federal Case to run concurrently with the sentence in the State Case. (Id.) According to Mr. Smith, the offer in the Federal Case was contingent on McCoy accepting the offer in the State Case. (Id. at 43-44.)

         The next day, before the hearing on McCoy's motions, the government agreed to modify the offer from 20 years to 15 years. (ECF No. 213 at 18-19, 46-47, 54; ECF No. 110 at 23.) The government did not make the 15-year offer in the Federal Case contingent on McCoy accepting the offer in the State Case, which remained unchanged. (ECF No. 110 at 23.) However, Mr. Smith testified that he had contemplated that the offer in the Federal Case would have been contingent on McCoy accepting the offer in the State Case had the offer of 15-year in the Federal Case been reduced to writing. (ECF No. 213 at 44.) Ms. Durrett testified that Mr. Smith did not indicate that the 15-year offer was contingent on McCoy accepting the state offer, her understanding was the offers were not dependent on each other, and she was more concerned about trying to reduce the length of the sentence in the Federal Case. (ECF No. 213 at 57-58, 83, 86, 88.) She testified she did not inform McCoy that the 15-year offer was dependent on his acceptance of the offer in the State Case. (ECF No. 213 at 70-74, 78.) McCoy testified that Ms. Durrett told him the 15-year offer was a “joint deal” with the state. (Id. at 96.)

         Ms. Durrett conveyed the government's offer of 15 years to McCoy and suggested that he take time to consider the offer and to agree to continue the hearing set for July 6, 2012.[5] (ECF No. 213 at 54-55, 57-59.) According to McCoy, the purpose of the continuance was to allow for negotiation with the state to resolve the State Case. (ECF No. 213 at ...


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