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Ballard v. United States

November 5, 2009

HERBERT LAMONT BALLARD, DEFENDANT/PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION DENYING MOTION TO VACATE (DOC. NO. 54)

I. Introduction

Before the Court is Defendant Herbert Ballard's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255 (doc. no. 54), the government's Motion to Dismiss Defendant's Habeas Corpus Petition (doc. no. 58), and Defendant's response to the motion to dismiss (doc. no. 64).

II. Procedural History

According to the indictment in this case, from March 2003 until approximately September 2005, the Defendant conspired to commit (a) bank fraud in violation of 18 U.S.C. § 1344(1) and conspired in (b) making, uttering and possessing counterfeit securities of organizations involved in interstate commerce, violating 18 U.S.C. § 513(a). An individual identified as "PK" supplied counterfeit checks to Defendant, who then recruited other individuals to pass the checks at grocery stores and other financial institutions located within the physical bounds of the Western District of Pennsylvania. In addition to recruiting such individuals, Defendant also transported them to grocery stores to facilitate their passing of those counterfeit checks.

Defendant was indicted by a grand jury in February 2006 for one count of conspiracy in violation of 18 U.S.C. § 371. The indictment lists numerous victims and the alleged loss to each, which aggregated in excess of $14,700. On June 12, 2006, Defendant entered a guilty plea pursuant to a plea agreement, where he pled guilty to conspiracy to commit bank fraud and pass counterfeit securities.

A. Plea Agreement (Doc. No. 28)

According to the plea agreement, Defendant agreed to waive his right to direct appeal under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, except that he could appeal if either (a) the United States appealed the sentence or (b) the sentence either exceeded the statutory limit or unreasonably exceeded the sentencing guideline. (Plea Agreement ¶ A(4).) The Plea Agreement also states, "Herbert Lamont Ballard further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence." Additionally, the Plea Agreement sets forth the following:

3. Because the offense of conviction was part of a conspiracy of criminal activity, restitution is not limited to the offense of conviction. The Court may order that restitution be paid to any victim, person, or party directly harmed by Herbert Lamont Ballard's criminal conduct in the course of the conspiracy.

4. The parties stipulate that, for the purposes of the Sentencing Guidelines, the loss amount is between $30,000 and $70,000....

5. The parties agree that under §2B1:1 of the Sentencing Guidelines, the base offense level is 6. The parties further agree that the base offense level of 6 should be raised by 6 levels under §2B1:1(b)(1)(D) of chapter 2 of the Guidelines.

(Plea Agreement ¶¶ C(3)-(5).) The parties agreed that the final offense level was thirteen, after raising it by four due to Defendant's aggravating role, and reducing it by three because of his acceptance of responsibility. (Plea Agreement ¶¶ C(6)-(8).)

Defendant executed the plea agreement by signing the last page, and it was offered as an Exhibit in open court at the change of plea hearing. Transcript, Change of Plea Hearing, (Doc. No. 48 at 11).

B. Guilty Plea Colloquy

At a change of plea hearing on June 9, 2006, this Court engaged in a thorough colloquy to ensure that Defendant knew and understood the consequences of his plea agreement and guilty plea. Defendant was 41 years old at the time, and had a 12th grade education, and his actions and responses at the change of plea hearing indicated he had a thorough understanding of the indictment, the proceedings, and his rights. Further, the colloquy demonstrates that defendant could read, write, and understand English, and that the Court, with defense counsel's agreement, found him competent. Additionally, defendant acknowledged that: (a) he read, reviewed and understood the terms of the plea agreement with his attorney; (b) there were no other agreements or understandings with the government not set forth within the plea agreement; (c) there was no prediction or promise as to what his sentence would be or might be based upon what was said in the colloquy; and that (d) no one told him to lie or respond untruthfully to any of the questions. Transcript, Change of Plea Hearing, (Doc. No. 48 at 11, 13.) Near the end of the colloquy, the Court asked counsel for the Government to summarize the terms of the plea agreement, and the government responded as follows:

He has agreed to plead guilty to the count of the indictment and pay mandatory restitution as well as the special assessment.

He has agreed to waive all his rights on direct appeal and to collaterally attack the conviction, except for under three circumstances:

One, if the United States were to take an appeal from the sentence, the Defendant may also take a direct appeal from the sentence.

Two, if the sentence were to exceed the statutory limit of five years as you have already set forth, he may also take a ...


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