McIntosh v. United States
McIntosh v. United States
Opinion of the Court
Movant Candice M. McIntosh pleaded guilty to being a felon in possession of a firearm. Now before the Court is Movant's pro se motion to vacate, set aside, or correct her sentence under
I. Background
On March 7, 2017, an indictment was returned in this Court charging Movant with being a felon in possession of a firearm, in violation of
On November 30, 2017, Movant appeared before this Court and pleaded guilty to the single count of the indictment. Crim. Doc. 37. On April 27, 2018, this Court sentenced Movant to 54 months' imprisonment. Crim. Docs. 62, 65. Movant did not appeal.
II. Legal Standard
Title
A § 2255 motion "can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Sanders v. United States ,
III. Analysis
In her § 2255 motion, Movant seeks relief claiming her Sixth Amendment rights were violated when she was detained at CoreCivic in Leavenworth, Kansas, and her telephone calls and personal meetings with her defense counsel were recorded and then divulged to the prosecutor. Docs. 1, p. 4; 1-1, p. 1. Movant's claim, based on an alleged inquiry conducted by the United States District Court for the District of Kansas, contends that a sentence reduction was negotiated for defendants prosecuted in the District of Kansas, but that the Department of Justice would not agree to the reduction. Doc. 1-1, p. 1. Movant now asserts that she should receive a sentence reduction based on these facts. Id. at p. 2.
As set forth in Respondent's response, the allegation of recording of attorney-client communications stems from a case in the United States District Court for the District of Kansas, United States v. Black , No. 2:16-cr-20032-JAR. Doc. 5, pp. 3-5. The record in that case refutes Movant's allegations. A report filed by the Special Master determined that attorney-client conference rooms at CoreCivic (formerly known as the Corrections Corporation of America) in Leavenworth, Kansas, did record video, but not audio, of attorney-client meetings. Black , No. 16-20032-JAR, Doc. 214, p. 2. The report also noted that, although all calls are recorded, telephone numbers belonging to attorneys may be designated as "private" and then are not supposed to be recorded. Id. at 11. Although Movant was detained at CoreCivic prior to sentencing, neither Laine Cardarella, nor the Federal Public Defender's Office for the Western District of Missouri were identified in an earlier Special Master report as having been recorded. Id. at Doc. 187, p. 5.
Furthermore, Movant's arrest occurred after the initial investigation by the Special Master had concluded. As noted by Respondent, two initial reports were issued in December 2016, with two more reports following on January 31, 2017, and March 16, 2017, which were issued prior to Movant's arrest. Id. at 183, 187, 193, 214. Movant's claim therefore asserts that six months after a United States District Court commenced an inquiry into allegations of impropriety, CoreCivic continued to record and divulge attorney communications. However, Movant provides no evidence to support this allegation. This conclusory *790allegation, which is unsupported by any evidence, is wholly incredible and insufficient to satisfy her burden in this case. Blackledge ,
Lastly, since the allegations of impropriety predate Movant's prosecution, this claim is also waived by Movant's guilty plea. See United States v. Todd ,
Thus, because Movant's claims are conclusory and found to be without merit, Movant's sole ground for relief is denied.
IV. Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must issue or deny a certificate of appealability when it enters a final order adverse to Movant. A certificate of appealability may be issued "only if [Movant] has made a substantial showing of the denial of a constitutional right."
V. Conclusion
Accordingly, for the reasons explained above, Movant's motion to vacate, set aside, or correct sentence pursuant to
IT IS SO ORDERED.
Reference
- Full Case Name
- Candice M. MCINTOSH, Movant v. United States
- Status
- Published