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UNITED STATES v. ROMAN

August 8, 1996

UNITED STATES OF AMERICA
v.
PEDRO ROMAN



The opinion of the court was delivered by: WELSH

REPORT AND RECOMMENDATION

 DIANE M. WELSH

 UNITED STATES MAGISTRATE JUDGE

 August 8, 1996

 On January 18, 1996, the defendant filed a second § 2255 motion requesting this court to vacate his sentence because of alleged deficiencies in his guilty plea. He presently claims that his plea was not entered voluntarily and knowingly because he was under the influence of drugs. This claim comes two years after the defendant filed his first § 2255 motion.

 I. Background

 On April 15, 1992, Tyrone Roberson ("Roberson") informed Officer Dennis Wilson ("Officer") that he had just been robbed by an armed hispanic male. The Officer drove around the area with Roberson in an attempt to locate the suspect. Both the Officer and Roberson saw the defendant, Pedro Roman. Roberson then said, "That's him!" Mr. Roman dropped a shotgun and other items and ran away. Shortly thereafter, he was found hiding under a car and was clutching some money which had been stolen from Roberson. Mr. Roman was then searched, and a cigarette box was taken from him. It contained 25 vials, 16 of which tested positive for the presence of cocaine-base. After Mr. Roman was arrested, Roberson again identified Mr. Roman as the man who had robbed him, and he identified the property which Mr. Roman had dropped as his own. *fn2"

 On January 11, 1993, a federal grand jury returned a three-count indictment charging Mr. Roman with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and possession of a controlled substance, in violation of 21 U.S.C. § 844. Joyce Webb Eubanks, Esq. was appointed to represent Mr. Roman.

 On March 9, 1993, Mr. Roman pled guilty to all three charges. Prior to accepting Mr. Roman's plea, Judge Ditter explained to Mr. Roman the consequences of pleading guilty. Mr. Roman acknowledged that he understood what rights he was giving up and that he wanted to plead guilty. Mr. Roman was sentenced to a 162 month term of incarceration. *fn3"

 In December of 1993, the defendant filed his first § 2255 motion in this district court. The motion included four grounds for relief, all of which involved the alleged unlawful seizure of certain evidence, namely, a sawed-off shotgun and crack cocaine. The defendant claimed that he did not know he had the right to move for suppression of the evidence, and that if he had known, he would not have pled guilty. Therefore, the defendant asserted that his guilty plea was involuntary. His claims were denied in an order dated January 31, 1994.

 The defendant filed his second § 2255 motion in January of 1996. He has asserted that he pled guilty against his will and did not understand what he was being asked while in court because he was under the influence of drugs and was "not in the right frame of mind." The government has responded to the second motion by advancing three arguments. First, the government requests that this court decline to review the defendant's claim on its merits. In support of this request, the government argues that the present motion constitutes an abuse of the § 2255 procedure because the defendant failed to raise the present claim in his first § 2255 motion. Second, the government refutes the defendant's claim of "not being in the right frame of mind" by noting that the defendant was responsive while in court. Third, the government asserts that the defendant's claim should be denied because he has offered no evidence to support his claim that he pled guilty while under the influence of drugs.

 II. Discussion

 Under Rule 9(b) of the Rules Governing Section § 2255 Proceedings for the United States District ...


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