MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on Defendant Romeo Reccarro, f/k/a/Terry Lee Roundtree's ("Reccarro") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Docket No. 119]
Reccarro was charged by indictment with distribution, receipt, and possession of child pornography, in violation of 18 U.S.C. § 2252. An Assistant Federal Defender was appointed to represent him. Reccarro initially entered a plea of not guilty, and a jury trial was scheduled. On the morning of trial, Reccarro absconded and the jury panel was dismissed. Min. Entry [Docket No. 47]. The Court issued a bench warrant for Reccarro's arrest. Docket Entry [Docket No. 48].
After Reccarro was arrested on October 24, 2014, he entered a plea of guilty to the pornography charge at a hearing on November 12, 2014. Min. Entry [Docket No. 55]; Plea Agreement [Docket No. 56]. During the plea colloquy, the Court asked Reccarro a series of questions while he was under oath, including whether he was satisfied with his attorney and whether his plea was voluntary.
Plea Hr'g Tr. [Docket No. 88] 8:13-8:17.
The Court then reviewed the Plea Agreement with Reccarro and asked him if he understood it:
The Court also asked if there were any "side deals" or "secrets" about the Plea Agreement, and Reccarro responded that there were not.
In the months following his plea hearing, Reccarro sent several pro se letters, motions, and memoranda to the Court alleging that his rights had been violated and demanding that his attorney be removed from the case.
At Reccarro's sentencing hearing on January 28, 2016, the Court addressed Reccarro's allegations about his attorney. Sentencing Hr'g Tr. [Docket No. 111] 3:14-9:10. Reccarro told the Court he desired new counsel because his attorney was ineffective and had not fully informed him of the details of the Plea Agreement.
The Court then sentenced Reccarro to 216 months' imprisonment, a downward variance from the Guidelines range of 240 months.
Notwithstanding the waiver provision of his Plea Agreement, Reccarro appealed his conviction and sentence to the Eighth Circuit Court of Appeals. Notice Appeal [Docket No. 101]. His counsel moved for leave to withdraw from the case and filed a brief under
Reccarro filed this § 2255 Motion on February 7, 2017. He claims he received ineffective assistance of counsel because his attorney had an unspecified conflict and forced Reccarro to plead guilty. He also alleges judicial misconduct, a conflict of interest by the undersigned judge, and other miscellaneous issues.
Persons in federal custody are provided a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence under 28 U.S.C. § 2255.
A. Ineffective Assistance of Counsel Claim
Reccarro's ineffective assistance of counsel claim is based on his allegation that his attorney "was using prosecutor styled offensive behaviors against me." Motion at 4. Reccarro provides no factual details for this conclusory allegation, and the allegation is contradicted by the record. At the plea hearing, Reccarro stated under oath that he was satisfied with his attorney's representation and that he wished to plead guilty. He also confirmed that no one forced him to plead guilty, and that no unspoken side deals or promises existed.
A § 2255 motion may be dismissed without an evidentiary hearing if the movant's allegations "are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact."
B. Judicial Misconduct or Conflict Claim
Reccarro also alleges judicial misconduct based on allegations that the undersigned judge (1) refused to dismiss Reccarro's attorney, and (2) was intoxicated in the courtroom. As to the first allegation, Reccarro was given a reasonable opportunity at the sentencing hearing to decide whether he wanted to proceed with his request for new counsel. After a 45-minute recess to consider how to proceed, Reccarro chose to withdraw this request and not to change attorneys. The second allegation is entirely baseless and warrants no further comment.
Reccarro also alleges that the undersigned district judge has a conflict of interest because she presided over a previous federal case in which he was a defendant. This claim too is entirely false and with no factual basis. Judge Paul Magnuson, not Judge Montgomery, presided over Reccarro's prior case.
C. Miscellaneous Claims
Reccarro makes several other allegations that are not cognizable in a claim for relief under a § 2255 motion. He alleges being charged $1,600 without a hearing on this issue. Reccarro appears to be referring to his $1,500 restitution amount and the $100 mandatory special assessment. Section 2255 is not the proper vehicle for challenging the restitution portion of a sentence, because § 2255 is limited to claims involving the right to be released from custody.
Reccarro also attempts to use this Motion to appeal (1) the denial of his request for $25,000 based on alleged medical malpractice by Bureau of Prisons medical personnel, and (2) the denial of a compassionate release request and request to be transferred to FMC-Rochester due to medical conditions. A § 2255 motion is not the appropriate avenue for either of these claims because neither challenge the constitutionality or legality of Reccarro's sentence.
IV. CERTIFICATE OF APPEALABILITY
The Court will not issue a certificate of appealability. A court may grant a certificate of appealability only where the defendant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
Also, for the reasons stated above, an evidentiary hearing in this matter is not warranted, as the record and the parties' arguments definitively show Reccarro is not entitled to relief under § 2255.
Based upon the foregoing, and all the files, records, and proceedings herein,