United States District Court, D. Alaska
ORDER RE SECTION 2255 PETITION
L. GLEASON UNITED STATES DISTRICT JUDGE
the Court is Defendant Billy James Cooks' Motion to
Vacate Under 28 U.S.C. § 2255 at Docket 112 and Mr.
Cook's First Amended Motion to Vacate Under 28 U.S.C.
§ 2255 and Request for Evidentiary Hearing at Docket
The Government responded at Docket 141. Mr. Cooks filed a
reply at Docket 142.
22, 2014, Mr. Cooks was indicted for Drug Trafficking
Conspiracy in violation of 21 U.S.C. §§ 846 and
841(a)(1) and Conspiracy to Launder Monetary Instruments in
violation of 18 U.S.C. § 1956(h). On December 11,
2014, Mr. Cooks entered into a Plea Agreement with the
Government pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), pleading guilty to both counts. The parties
agreed that the five- year mandatory minimum penalty for the
drug trafficking charge applied to Mr. Cooks rather than the
ten-year mandatory minimum. Mr. Cooks also waived his right
to appeal and all rights to file a § 2255 motion except
on the grounds of ineffective assistance of counsel or the
voluntariness of his plea. The Plea Agreement contained two
distinct provisions regarding sentencing. First, in Part A,
it addressed the “Advisory United States Sentencing
Guidelines, ” and stated that “[t]he parties have
no agreements on any guideline applications unless set forth
below in [the Acceptance of Responsibility
subsection].” Second, in Part B, it stated that
“[p]ursuant to Fed. R. Crim. P. 11(c)(1)(C), the
parties agree that a sentence of between (60) and one hundred
fifty six (156) months of incarceration is
Cooks asserts two grounds for vacating his sentence under 28
U.S.C. § 2255: (1) he did not enter a guilty plea
knowingly and voluntarily; and (2) his trial counsel was
ineffective in not objecting to the Government's alleged
breach of the Rule 11(c)(1)(C) agreement and in not objecting
to the criminal history calculation in the Presentence Report
(“PSR”), which listed a felony conviction that
had been set aside. The Government asserts that Mr.
Cooks' motion was filed beyond the one-year statute of
limitations period and therefore is untimely. It also
maintains that Mr. Cooks' arguments fail on the merits.
to 28 U.S.C. § 2255(f)(1), a federal petitioner must
file a habeas petition within one year from the date judgment
of conviction becomes final unless the petitioner can
demonstrate equitable tolling is applicable. “[T]he
threshold necessary to trigger equitable tolling . . . is
very high.” To satisfy equitable tolling, a petitioner
must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances
stood in his way.”
Cooks' final judgment was filed on February 12,
2016. The statute of limitations for filing
his habeas petition expired on February 26,
2017. Mr. Cooks filed his habeas petition on
April 20, 2017, after the statute of limitations period had
expired.Mr. Cook argues that the statute of
limitations should be equitably tolled. Because, as
discussed below, the Court finds that on the merits Mr. Cooks
is not entitled to relief, the Court will assume without
deciding that equitable tolling would apply.
Knowing and Voluntary Plea
Cooks asserts that his “guilty plea [was] not knowing
and intelligently entered into due to trial counsel's
misadvisement and ineffective assistance in violation of
Sixth Amendment and Due Process.” Specifically,
he maintains that trial counsel misinformed him that pleading
guilty to Drug Trafficking Conspiracy and Conspiracy to
Launder Monetary Instruments would give him a sentencing
range between 60 and 156 months' imprisonment. He points
to the U.S. Sentencing Commission's Guidelines range set
forth in the PSR and adopted by the Court, which was 135 to
168 months' imprisonment. The Government responds that
“this Court took great care to ensure that Cooks
understood the nature of the charge against him and that he
entered his pleas knowing and voluntary.”
parties agreed in their Plea Agreement that Mr. Cooks would
be sentenced to “a period of incarceration of between
sixty (60) and one hundred and fifty six (156) months'
imprisonment.” At the plea hearing, the following
The Court: So as I understand the basic agreement here, it is
that Mr. Cooks would plead guilty to both counts in the
indictment, the parties would agree that the five-year
mandatory minimum penalty would apply here, not a ten-year
mandatory minimum penalty, and there's a C agreement,
meaning- which I'll discuss what that all means with Mr.
Cooks here, but basically, that the sentence would be-the
parties agree the sentence would be a range of incarceration
of between 60 months and 165 months - Mr. Dudley: 156 months,
I believe, Your Honor.
Ms. Sayers-Fay: That's correct.
The Court: Thank you. 156 months, that's very correct, 60
to 156 . . . So Mr. Cooks, do you understand that to be the
basic agreement between you and the Government?
The Defendant: Yes.
in the change of plea hearing, the Court discussed the
Sentencing Guidelines with Mr. Cooks as follows:
The Court: . . . As I indicated, this carries-the first
charge carries a mandatory minimum of five years. So under
the law, that would be the base point. In terms of whether
the sentence should be at that mandatory minimum or higher,
there are guidelines that are put out by the Sentencing
Commission. They basically take-it's a chart that has the
nature of the crime on one axis and then the person's
criminal history on another, and it gives the range of
sentence based on those two factors to look at.
Then there are other factors that are set out in the law, 18
United States Code 3553(a) that give guidance to help a court
determine if a sentence should be above or below or within
that guideline range.
Have you had a chance to talk about these issues with your
attorney, Mr. Dudley?
The Defendant: Yes.
subsequent sentencing hearing, the parties agreed on the