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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

: Case Nos. CR-99-89

v. : CV-04-146

:

MICHAEL WALKER, :

: (Judge McClure)

Defendant. :

O R D E R

August 17, 2006

BACKGROUND:

On April 14, 1999, Michael Walker was initially indicted on federal drug

possession with intent to distribute charges. A superseding indictment was

returned on May 12, 1999, charging Walker, and others, with additional drug

charges. On June 9, 1999, Walker and two co-defendants were charged in a

second superseding indictment.

On December 3, 1999, Walker entered a guilty plea to the second

superseding indictment. On July 6, 2000, the court granted Walker’s motion to

withdraw his first guilty plea, with which the government concurred, because of

the Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). (Rec.

Doc. No. 205.)

On March 1, 2001, Walker again entered into a plea agreement. In keeping

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with the second plea agreement, Walker pled guilty to count two of the second

superseding indictment. Count two of the second superseding indictment charged

Walker with possession with intent to distribute in excess of five (5) grams of

crack cocaine on or about March 15, 1999, in violation of Title 21 U.S.C. §§

841(a)(1) & 841(b)(1)(B)(iii) and Title 18 U.S.C. § 2.

On November 6, 2001, through his trial counsel Douglas B. Chester,

Esquire, Walker moved the court to withdraw his guilty plea. (Rec. Doc. No. 328.) 

We denied that motion on December 10, 2001. (Rec. Doc. No. 343.) Next,

Walker filed a pro se motion and supporting brief for reconsideration of our

December 10, 2001 order (Rec. Doc. Nos. 352 & 357), which was denied on

March 5, 2002. (Order, Rec. Doc. No. 365.)

On September 17, 2002, a sentencing hearing was held before this court. 

Walker was sentenced, as a career offender, to 262 months imprisonment, 4 years

supervised release, and $100 special assessment.

On July 11, 2003, the United States Court of Appeals for the Third Circuit

affirmed Walker’s conviction and sentence. United States v. Walker, 69 F.App’x

546 (3d Cir. 2003).

On January 24, 2004, Walker filed pro se his first motion under 28 U.S.C. §

2255 to vacate, set aside, or correct the sentence. Then, on July 6, 2004, Walker

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filed a “supplemental motion under 28 U.S.C. § 2255” seeking to amend his

motion to include a Blakely claim. On December 16, 2004, we directed the

government to obtain and file an affidavit from Walker’s trial counsel Douglas B.

Chester, Esquire, that would address allegations made by Walker in his § 2255

motion. On February 7, 2005, we again directed the government to obtain and file

an affidavit from Douglas B. Chester, Esquire. We received that affidavit on

February 22, 2005. On March 7, 2005, Walker filed a second supplemental motion

seeking to amend his motion to include a Booker claim.

By order dated May 17, 2005 we denied all of Walker’s claims in his section

2255 motion except for his claim that he received ineffective assistance from his

attorney regarding advice to plead guilty. In that order we ordered a hearing on

that single issue.

After a series of delays and continuances, on May 15, 2006 a hearing was

held. Both parties have fully briefed the matter and it is now ripe for our decision. 

For the following reasons we will deny Walker’s motion for collateral relief.

DISCUSSION:

I. WALKER’S STATEMENTS ARE NOT CREDIBLE

In our May 17, 2005 order we previously summarized the only remaining

claim in Walker’s § 2255 motion as follows: By pleading guilty at trial, Walker

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waived his right to challenge his conviction on any non-jurisdictional grounds

other than the voluntariness of the plea. United States v. Broce, 488 U.S. 563, 569

(1989). Thus, the court will limit its ineffective assistance of counsel review to

claims addressing advice given to Walker prior to the entry of his guilty plea, i.e.,

his claim that trial counsel advised Walker “we can always take back our plea.” 

(Rec. Doc. No. 408, Ex. 1, at 10.) At this time we must consider whether Walker’s

counsel was ineffective in advising defendant about entering his plea of guilty, and

whether the plea was knowing and voluntary. 

The two-prong Strickland ineffectiveness standard applies to post-conviction

challenges of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57 (1985). The

defendant must demonstrate (1) that counsel’s performance was objectively

unreasonable and (2) that counsel’s deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). In order for

a defendant challenging a guilty plea on ineffectiveness grounds to establish

prejudice, he must demonstrate that “there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill, 474 U.S. at 59.

Walker claims that it was counsel’s “unprofessional advice . . . that made

him (petitioner) accept the second plea.” (Mot. Vacate, Rec. Doc. No. 408, ex. 1,

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at 8.) Walker asserts that his attorney, Douglas B. Chester, Esquire, informed him

that “we can always take back our plea.” (Rec. Doc. No. 408, Ex. 1, at 10.)

At the time of Walker’s guilty plea the law governing the withdrawal of

guilty pleas was found in Federal Rule of Criminal Procedure 32(e). That rule was

similar in language to the Rule now found at Federal Rule of Criminal Procedure

11(d). Rule 11(d)(2)(B) provides that a defendant may withdraw a guilty plea

before the court imposes a sentence if “the defendant can show a fair and just

reason for requesting the withdrawal.” The United States Court of Appeals has

held that “[o]nce a court accepts a defendant’s guilty plea, the defendant is not

entitled to withdraw that plea simply at his whim.” United States v. Jones, 336

F.3d 245, 252 (3d Cir. 2003). 

Our May 15, 2006 hearing focused on the conversations between Attorney

Chester and Walker during the March 1, 2001 guilty plea hearing. Walker testified

that Chester told him “we can always take the plea back and go to trial so we could

buy time.” (Tr. 5/15/06, Rec. Doc. No. 491, at 13.) He repeated this point

throughout his testimony. (See Rec. Doc. No. 491, at 12 & 19.) Chester conceded

that they discussed withdrawal of his guilty plea but denied advising Walker that

he could simply plead guilty to buy time and then withdraw his plea. (Rec. Doc.

No. 491, at 40 & 44.)

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Our decision today depends on a credibility determination between Walker

and Chester. After having witnessed and evaluated the testimony we find Walker’s

recollection of what Chester told him to not be credible. We believe that Walker

and Chester discussed withdrawing Walker’s guilty plea at a later date. However,

we do not find credible Walker’s testimony that Chester told him that his plea

could always be withdrawn or that this would be an easy way for him to buy time

in preparing for trial. At this post-conviction stage Walker has every motivation to

lie about what was said to him by his attorney and his recollection of the exchanges

between himself and his counsel are not plausible. Chester is an experienced

federal criminal defense attorney who knows that pleas cannot simply be

automatically withdrawn, or used to buy time, and would not advise a client that a

plea could be used in such a manner. We do not find that attorney Chester’s advice

was objectively unreasonable.

To the extent that Chester may have said something from which Walker

inferred that he would be able to later automatically withdraw his plea, that advice

was effectively negated by the court at the plea colloquy. It is possible that Chester

may have possibly said something to Walker that Walker believed meant he would

be able to later litigate the minimum quantity and character of the drugs presented

in the case against him. However, even if Chester provided this advice, we are

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satisfied that our thorough and extensive colloquy clarified any confusion on the

matter. (See Rec. Doc. No. 341, at 36-38.) Walker stated that he understood that

by pleading guilty he was accepting criminal responsibility for distribution of a

minimum of five grams of crack cocaine. (Rec. Doc. No. 341, at 38.) We are not

aware of any other reason why Walker would want to withdraw his guilty plea. 

Our extensive colloquy demonstrates that any advice Chester may have previously

given Walker regarding future litigation of the minimum quantity and character of

the drugs for which he was accepting criminal responsibility did not prejudice him

in such a manner that he would not have pled guilty and insisted on going to trial. 

See Hill, 474 U.S. at 59. Therefore, Walker cannot establish the second prong

necessary to state a Strickland ineffective assistance claim, i.e., that he was

prejudiced by the advice Chester provided him in connection with the guilty plea. 

Furthermore, Walker stated that he understood that he would not be able to

withdraw his guilty plea simply because he might later be dissatisfied with a

sentence we imposed on him or because we decline to follow the recommendations

of the parties. (Rec. Doc. No. 341, at 43.) Walker is not entitled to collateral

relief.

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Walker’s motion to vacate under 28 U.S.C. § 2255, as supplemented, is

denied. (Rec. Doc. No. 408, 434 and 449.)

2. There is no basis for the issuance of a certificate of appealability.

s/James F. McClure, Jr.

James F. McClure, Jr.

United States District Judge

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