Case 3:07-cr-00108-GHD-SAA Document 114 Filed 03/14/11 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

KEN KOWLIN PETITIONER

V. CAUSE NO. 3:07CR108-GHD-SAA-2

UNITED STATES OF AMERICA RESPONDENT

PETITIONER’S REPLY TO GOVERNMENT’S RESPONSE TO

PETITIONER’S MOTIONS FOR THE COURT TO TAKE JUDICIAL NOTICE OF
RELATED PLEADING AND AMENDED REQUEST FOR EVIDENTIARY HEARING

I. Petitioner’s request for this Court to take judicial notice of the “related
pleading” is not time-barred.

A. THE FACTS

The related pleading at issue is the letter that forms the basis for the Rule 12.3 Notice that

Gary Massey’s attorney filed the day Petitioner entered his guilty plea. [Docket 29] As

Petitioner noted in his Amended1 Renewed Request for an Evidentiary hearing, [Docket 108],

when he was before this Court for sentencing, he attempted to tell the Court that there were

“mitigating circumstances” in his case and that he had been “misled” by an “elected official” but

that his attorney, Anthony Farese, would not allow him to tell this Court what those mitigating

circumstances were. ¶ 5-6. What Petitioner wanted to tell the Court was that Gary Massey had

been telling him all along that “he had a letter from the Lafayette County Attorney stating that he

could work for and be paid by Petitioner as a consultant as long as Petitioner did not have any

kind of contract with Lafayette County.” ¶ 8. “The letter Mr. Massey was referring to is what

this case is all about . . .” ¶ 9 (emphasis added).

1
The reason the “amended” request was filed was to correct a mistake that has been made in the original
motion. [Docket 107] The mistake was in paragraph 11 where “means” was changed to “mens rea.”

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Petitioner first told Mr. Farese and two Assistant United States Attorneys, Tom Dawson

and David Sanders, about the letter during a meeting on March 19, 2007. The § 2255 motion

alleges that:

During this meeting, Petitioner explained how and why he paid Mr. Massey the
way he did. He also told them about the letter Mr. Massey said he had that
allowed Petitioner to pay Mr. Massey the way he did. When Mr. Dawson asked
Petitioner for a copy of the letter, Petitioner told him that he did not have one but
they could get a copy of the letter from Mr. Massey. He explained that he and
Mr. Massey did not conspire to hide anything and that there was no kick-back or
bribe involved in the way he paid Mr. Massey. Petitioner told them that Mr.
Massey did not even know how he was paying him.

§ 2255 Motion, pp. 8-9.

The 2255 motion further alleges that Petitioner was not asked “whether Mr. Massey told

Petitioner that he had a letter from Scot Spragins saying that he could be paid the way Petitioner

paid him” when he, at Mr. Farese’s insistence, underwent a polygraph test that was conducted by

an FBI agent. § 2255 motion, pp. 9-10.

On March 29, 2007, Petitioner sent Mr. Farese a letter advising him that:

1. Gary Massey said he was running for supervisor during the middle of
1995. He said he could be the agent possible (sic) because of the
grandfathering rule if he got elected.

2. At a later date, he said he could not be the agent. Massey said he did not
want to lose the business and would take the agent commission out and
service it for the GA over ride. Massey said Nowlin did not have to do
that if required a lot of work.

3. Massey said he could work as a consultant for Nowlin’s office according

to the Ethics Commission and would pay Nowlin approximately what he
was making, around $2,600.00 per month. Nowlin believes and that
Massey could help Nowlin with the county governments and cities,
municipality, be a rainmaker/cheerleader and promote Nowlin’s agency at
the county and state wide meetings at Gulf Port, Three Rivers trips, rub
elbows and such with other supervisors and help service everything but
Lafayette County. Nowlin said the Ethics Commission said you can do
that; Massey said yes. Nowlin trusted what Massey said and went that
way until the rates went up on Lafayette County, then Massey insisted
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Nowlin give him a raise because the agencies revenue went up. Massey
again said that the Ethics Commission said it was ok.

....

§ 2255 Motion, p. 11, Exhibit 14.

When Mr. Farese insisted that Petitioner assist the Government in their case against Mr.

Massey by testifying before a grand jury, Petitioner asked “why he should do that if he was

innocent; that Mr. Massey had told him, that he had a letter saying Petitioner could pay him the

way he did.” The § 2255 motion alleges that:

Mr. Farese told Petitioner that Mr. Massey had lied about everything he told
Petitioner; that there was no letter and there never had been a letter. (Emphasis
added)2

2255 Motion, p. 13.

On May 30, 2007, Mr. Farese wrote Petitioner a letter summarizing the matters discussed

since Petitioner retained him on March 12, 2007. In this letter Mr. Farese stated:

You have always maintained that you were an independent brokerage agency
managing general agent, and that Gary Massey was an independent brokerage
agent under you. After Mr. Massey was elected supervisor in Lafayette County,
Mississippi, you maintained that Mr. Massey advised you that he could no longer
be the agent for the group health insurance plan sold to the employees of Lafayette
County, Mississippi. You, therefore, became the agent for that plan. You have
also maintained that Gary Massey advised you that he had checked with the
Mississippi Ethics Commission, and that he could work for you as a
consultant, but not as an agent. You explained that you hired Massey as a
consultant so that he could work on selling group health insurance to other
governmental entities, and that this would branch out your business in that
direction. . . .

2
Petitioner signed his § 2255 motion under penalty of perjury. His statements are therefore competent
evidence. See Hart v. Hairston, 343 F.3d 762, 764 n. 1 (5th Cir. 2003)(explaining that a declaration
made under penalty of perjury is competent evidence).

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...

I discussed all of these matters completely with you, and you still maintained
that Mr. Massey had represented to you that the Mississippi Ethics
Commission had said that it was proper and legal to work for you as a
consultant and that you relied upon that representation in continuing to deal
with Mr. Massey as a “consultant” , and not an employee of your insurance
agency. It is my understanding that Attorney Scot Spragins who was the attorney
for the Lafayette County Board of Supervisors at the time in question, did in fact
write the Mississippi Ethics Commission for an opinion regarding this issue and
that an opinion was issued. You maintained that you never saw this opinion nor
did you ask for a copy of it; however, you relied upon the representations made to
you by Gary Massey. (Emphasis added).

§ 2255 motion, Ex. 8 p. 2.

Petitioner attached Mr. Massey’s sworn affidavit to his § 2255 Motion. In his affidavit,

Mr. Massey stated:

After being elected Supervisor, I discovered that being a Supervisor was a not a full
time job. Therefore, I think it was on April 1, 1996, I approached Ken Nowlin and
requested that he give me a job working in his office as a consultant, and be
allowed to continue to solicit and write new business through his agency. My
reason for wanting to be a consultant in Ken Nowlin’s office was so that I could
maintain the business that I had in place, and also to direct new business to Ken’s
agency. I told Ken that I had a letter from Scot Spragins saying that I could work
for him and be paid as a consultant as long as I did not do any work on Lafayette
County’s account. I believed I could do this because Ken did not have a contract
with Lafayette County. Since Ken’s agency did not have a contract with Lafayette
County (Security Life Insurance Company had the contract with Lafayette County
at that time), I told Ken I could be paid more than $5,000 per year. I told Ken that
since he did not have a contract with Lafayette Count he could pay me as much as
he wanted to. Ken asked me if I was sure that this was okay and I told him that
based on the Ethics Commission opinions and Scot Spragins’s letter, I did not think
we would be violating any state laws if he paid me the way I was asking him to.
Ken agreed to pay me a consulting fee in an amount approximately equal to the
amount I had been earning previously as an insurance agent.

...

Ken told me that he had told Mr. Farese that I had a letter which stated that I could
work for him and be paid as a consultant. Ken told me that Mr. Farese had told him
that I had lied to him about the letter. Ken told me that Mr. Farese had told him that
was no letter; that it did not exist. What Mr. Farese told Ken about the existence of
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the letter was a complete fabrication. I would have provided a copy of the letter to
Mr. Farese, but he never requested it. My attorney had a copy of the letter and
would have given it to Mr. Farese if he as asked for it. The Tupelo newspaper even
had a copy of the letter. (Emphasis added)

Affidavit of Gary Massey, p. 2-3, 4, § 2255 Motion, Exhibit 1.

Petitioner attached Larry Nowlin’s sworn affidavit to his § 2255 Motion. Larry Nowlin is

Petitioner’s brother. In his affidavit, Mr. Nowlin stated:

I do not recall the dates of the meetings I was involved in with Farese and my
brother. The second time I took Ken to see Farese, I took him because Ken was
taking a lot of pain medication and was unable to drive. I drove him to Farese’s
office. Ken was not very alert on the drive over. I told Ken that we should
reschedule the meeting because he did not seem to be thinking clearly. Ken told me
to go on. He said he thought he was able to talk to Farese. During this meeting,
Farese told us that he had arranged for Ken to take a polygraph test. Ken told
Farese that Massey had told him that he had a letter saying that he could work for
Ken as a consultant. Farese said the letter did not exist and read parts of a letter
from an Ethics Commission opinion that he had and told Ken that, even if the letter
Ken said Massey told him about did exist, the letter would not hold up in court
because Ken had paid Massey more that $5000.00 a year. Farese told Ken he was
guilty because he had paid Massey more than $5000.000 a year and that he had no
choice but to try to plea bargain and plead guilty, but that, under the circumstances,
a guilty plea would result in nothing but a “big fine and no time.” (Emphasis
added).

Affidavit of Larry Nowlin, p. 2, § 2255 Motion, Exhibit 11.

As alleged in his § 2255 Motion, Petitioner tried on numerous occasions to tell Mr. Farese

that Mr. Massey had a letter from the Lafayette County attorney which allowed Petitioner to pay

him as a consultant because Petitioner did not have a contract with Lafayette County. More than

once, Mr. Farese told Petitioner that such a letter did not exist. But the letter did exist, and on

August 1, 2007. Five days after Petitioner entered his guilty plea, the Northeast Mississippi Daily

Journal published the following article:

Oxford - Former Lafayette County Supervisor Gary Massey says he relied on a

ruling from the state Ethics Commission before accepting money from a former
Ecru Insurance agency.

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Massey, supervisor from 1996 until 2003, says he took money from Ken Nowlin for
a consulting fee only after the supervisors’ attorney at the time, Scot Spragins of
Oxford, clarified a ruling by the commission.

Massey plans to defend himself against more than 40 federal charges of conspiracy
and money laundering in connection with what federal prosecutors have labeled a
kickback scheme involving Nowlin.

On Friday, Nowlin pleaded guilty to conspiracy as part of a plea agreement. He

hasn’t been sentenced.

Spragins couldn’t be reached for comment Tuesday on Massey’s claims.

The Daily Journal obtained a copy of Spragins’ letter to Masses (sic) dated May
8, 1996, nearly five months after Massey took office. The letter says the county
shouldn’t accept a bid of any company from which Massey had received more
than $5,000 in commissions; or, if a bid was accepted, Massey should not do
more than $5,000 a year in business with a company that has a contract with the
county. (Note: The letter was actually dated March 8, 1996. See Exhibit 3 to
Petitioner 2255 Motion.)

...

Before taking office, Massey resigned as the agent for all the clients he had that
were insured by Security Life, the company that had a contract with the county. He
referred those clients to Nowlin, who, the legal filing said, “had agreed to pay the
referral or consulting fee to Massey in exchange for the business.”

Coghln said his client was owed the commissions by Security Life, and that Massey
understood from Spragins that “as long as Mr. Nowlin did not contract with the
county, he was not prohibited from accepting consulting/referral fees from Mr.
Nowlin.” (Emphasis added).

§ 2255 Motion, pp. 18-19, Exhibit 20.

Mr. Massey’s attorney filed the Rule 12.3 motion at issue here on July 27, 2007, the day

Petitioner entered his guilty plea. The motion establishes Mr. Farese’s knowledge of the letter via

formal and official notification.

Although not specifically noted in his § 2255 Motion, a week or so after this article

appeared in the Daily Journal, Petitioner began calling Mr. Farese’s office trying to get an

appointment with him so he could talk to him about withdrawing his guilty plea. However, it was
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not until September 28, 2007, the day Mr. Massey pled guilty3, that Petitioner was able to go to

Mr. Farese’s office and meet with him about doing whatever was necessary to withdraw his guilty

plea. § 2255 Motion, p. 20. Petitioner again tried to tell Mr. Farese that Mr. Massey had told him

that he had a letter from the Lafayette County attorney which allowed Petitioner to pay him as a

consultant because Petitioner did not have a contract with Lafayette County and that the Daily

Journal had described the letter in the article it published on August 1, 2007.

Mr. Farese refused to even discuss the Daily Journal article. Instead, Mr. Farese told

Petitioner that his attempt to “revert back to your original ‘version of the events’ is ludicrous” and

that he was “disappointed and amazed that you would come into my office and make the foolish

comments you did today.” Mr. Farese also told Petitioner that withdrawing his plea would “give

Gary Massey the opportunity to testify as a Government witness against you.” § 2255 Motion, p.

21, Exhibit 22, p. 2-3,

In his affidavit, Larry Nowlin described this meeting as follows:

Partly on my advice, Ken pled guilty on July 27, 2007. On September 28, 2007, I
drove Ken to Ashland to see Farese. During this meeting, Ken told Farese that he
wanted to withdraw his guilty plea and tried to explain to Farese that he would have
earned his four percent override on the Lafayette County insurance account no
matter who had the insurance with the county. Farese became very angry and told
Ken that he could not understand how he had ever made what he had made of
himself as dumb as he was. Farese told us that we were not going to embarrass him
and started dictating a letter saying that he was getting out of the case and told us to
get out of his office.

Farese called me later that day and told me that if Ken was allowed to withdraw his
guilty plea, he could be going to prison for 75 years. Farese also told me that if Ken
insisted in going to trial it would cost Ken more than two hundred thousand dollars.

3
The Government claims that Mr. Massey pled guilty because of Petitioner’s “cooperation.”
Government’s Response to Petitioner’s Motions, p. 1. However, Mr. Massey has testified, under oath,
that he entered his guilty plea because the Government threatened to “indict (his) daughter” for money
laundering. § 2255 Motion, p. 27, Appendix III, pp. 59.

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On my advice, Ken wrote Farese and told him that he did not want to withdraw his
guilty plea. . . .

Affidavit of Larry Nowlin, p. 4-5, § 2255 Motion, Exhibit 11.

B. ARGUMENT

How the Government can argue that Petitioner’s motion for this Court to take judicial

notice of the 12.3 motion “is really a motion to amend his pleadings, alleging a completely new

basis for his claim of ineffective assistance of counsel,” brings into question whether the

Government has read Petitioner’s § 2255 Motion. See Government’s Response to Petitioner’s

Motions, p. 3 [Docket 112].

In arguing that Petitioner’s motions are time-barred, the Government cites United States v.

Gonzalez, 592 F.3d 675 (5th Cir. 2009). In Gonzalez, the Fifth Circuit noted that Rule 15(c)(1) of

the Federal Rules of Civil Procedure applies to § 2255 motions. Rule 15(c)(1) states that:

“An amendment to a pleading relates back to the date of the original pleading when . . . the

amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

out – or attempted to be set out – in the original pleading . . .”

In denying relief in Gonzalez’s case, the Fifth Circuit stated that “we must look to whether

Gonzalez’s new claim4 asserts “a new ground for relief supported by facts that differ in both time

and type from those the original pleading set forth.” 592 F.3d at 680, (citation omitted). In

Petitioner’s case, his new ground for relief, as noted above, is clearly supported by the facts

alleged in his original § 2255 motion.

4
Gonzalez’s original pleading alleged that his attorney “committed several errors during the sentencing
phase and had advised him to proceed to trial in the face of overwhelming evidence.” 592d F.3d at 678.
“[M]ore than a year after his conviction became final, Gonzalez filed a motion for leave to amend his §
2255 pleading to include a claim of ineffective assistance of counsel based on his attorney’s failure to file
an appeal.” Id.

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In denying relief in Gonzalez’s case, the Fifth Circuit further found that Gonzalez’s

“original claims involve ‘entirely distinct type[s] of attorney misfeasance’ from the claim asserted

in his proposed amendment.” 592 F.3d at 680, (citation omitted). In Petitioner’s case, his new

ground for relief, as noted above, is not at all “distinct” from the claims alleged in his original

§ 2255 motion. It is, in fact, not a new ground for relief, but new information supporting his

original claim for relief.

The Government also argues that not only are Petitioner’s motion time-barred, but that they

“would also be futile, as Rule 12.3 of the Federal Rules of Criminal Procedure applies only to

those instances where a defendant claims to have been acting for and on behalf of a law

enforcement agency or federal intelligence agency.” Government’s Response to Petitioner’s

Motions, p. 4. The Government totally misconstrues and misapprehends the purpose of

Petitioner’s motions. Petitioner does not contend that Rule 12.3 motion provided him or Mr.

Massey with a defense to the charges they faced. He contends that the letter described in the

motion negated the requisite mens rea necessary for either him, or Mr. Massey, to be convicted of

conspiring to corruptly violate 18 U.S.C. §§ 666 and 371.

Petitioner was charged with conspiracy to corruptly pay Gary Massey commission

payments totaling approximately $827,000.00 with the intention that Massey would be influenced

and rewarded in connection with the Lafayette County’s health insurance contract in violation of

18 U.S.C. § 666. Specifically, the indictment charged that:

From on or about December 1995, and continuing through each calendar year to on
or about July 2004, in the Northern District of Mississippi and elsewhere, GARY
MASSEY and KEN NOWLIN, defendants herein, did knowingly conspire and
agree with each other and with others both known and unknown to the Grand Jury,
to corruptly accept monthly health insurance commission payment totaling
approximately $827,000.00, with the intention that Lafayette County Supervisor
GARY MASSEY would be influenced and rewarded in connection with the

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Lafayette County Employee Health Insurance contract, in violation of Title 18

United States Code, Section 666. (Emphasis added)

§ 2255 Motion, p. 15, Exhibit 18, p. 3.

To have convicted Petitioner of conspiring with Mr. Massey, the Government would have

not only have to prove that Petitioner acted “corruptly” but that Mr. Massey acted corruptly also.

Mr. Massey’s actual state of mind would have been just as much an issue as Petitioner’s had they

proceeded to trial instead of pleading guilty.

Had they proceeded to trial, the letter at issue here would have provided Petitioner and Mr.

Massey with something tangible and real that would have clearly showed the jurors that neither of

them acted “corruptly” and therefore did not possess the requisite mens res5 necessary to be found

guilty of conspiracy to violate 18 U.S.C. § 666. In Petitioner’s Motion for this Court to take notice

of the Rule 12.3 motion, he argued the following:

14. An essential and requisite mens rea element of 18 U.S.C. § 666

requires, in a case such as this, that the defendants must act
“corruptly,” and with the intent that they would “be influenced or
rewarded” concerning the business transactions they are charged
with illegally conducting. U.S. v. Impastato, 543 F.Supp.2d 569,
577-578 (E.D.La. 2008). To act “corruptly” is generally defined as
acting “voluntarily and intentionally with an improper motive or
purpose to be influenced or rewarded ... involv[ing] conscious
wrongdoing, or as it sometimes [is] expressed, a bad or evil state of
mind.” 1-27A Modern Federal Jury Instructions-Criminal § 27A.02
(West 2007).” See also, Arthur Andersen LLP v. U.S., 544 U.S.
696, 705 (2005) (“Corrupt” and “corruptly” are normally associated
with conduct that is “wrongful, immoral, depraved, or evil”).

15. The Notice explains why Mr. Massey believed, in good faith, that he could
be paid the way he told Petitioner he could be paid. Mr. Massey told
Petitioner he had a letter stating he could be paid that way. Petitioner had
no reason not to believe Mr. Massey. They had been doing business
together for years. Mr. Massey told Petitioner that according to the letter he

5
In United States v. Crozier, 987 F.2d 893 (2nd Cir. 1993), the Court specifically held that 18 U.S.C. §
666 “does contain the mens rea of intent, . . .” 987 F.2d at 900.

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had from the Lafayette County attorney, he could work for and be paid by
Petitioner as a consultant as long as Petitioner did not have any kind of
contract with Lafayette County.

16. The letter totally negated the mens rea element of the alleged crime insofar
as Mr. Massey was concerned and since Petitioner had no reason to question
what Mr. Massey told him about the letter, the letter also negated the mens
rea element of the alleged crime as it related to him. Neither Petitioner nor
Mr. Massey believed they were doing anything illegal during the time they
were doing business together. If they did not believe they were doing
anything wrong, there is no way what they did was “corrupt” in any sense of
the word and it they did not act corruptly, they could not have possessed the
requisite mens rea for their conduct to be illegal.

Motion for Court to Take Judicial Notice of Related Pleading filed in this Court, pp. 7-8 [Docket

106].

The Rule 12.3 motion at issue in Petitioner’s Motion for Court to Take Judicial Notice of

Related Pleading Filed in this Court is clearly relevant to Petitioner’s original ineffective

assistance of counsel’s claims and just as clearly “asserts a claim . . . that arose out of the conduct,

transaction, or occurrence set out . . . in the original pleading . . .” Rule 15(c)(1) of the Federal

Rules of Civil Procedure. This Court should, therefore, find that Petitioner’s motions are not time-

barred and consider his Motion for Court to Take Judicial Notice of Related Pleading Filed in this

Court in determining whether he is entitled to an evidentiary hearing.

II. Petitioner is entitled to an Evidentiary Hearing.

In Tucker v. U.S., 275 Fed.Appx. 402 (5th Cir. 2008), the Fifth Circuit recently held that

“[a] district court may deny a § 2255 motion without conducting a hearing “only if the motion,

files, and records of the case conclusively show that the prisoner is entitled to no relief. United

States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.1992). . . . When facts are at issue in a § 2255

proceeding, a hearing is required if: (1) the record, as supplemented by the trial judge's personal

knowledge or recollection, does not conclusively negate the facts alleged in support of the claim
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for § 2255 relief; and (2) the movant would be entitled to post-conviction relief as a legal matter if

his factual allegations are true.” Tucker v. U.S., supra, 275 Fed.Appx.at 403-404, citing Friedman

v. United States, 588 F.2d 1010, 1015 (5th Cir.1979) and United States v. Briggs, 939 F.2d 222,

228 (5th Cir.1991).

Petitioner has submitted facts showing that Mr. Farese failed to conduct a reasonable

investigation. The Government has made no effort to negate those facts or even attempt to show

that Mr. Farese did conduct a reasonable investigation.

The United States Supreme Court holds that counsel must, at a minimum, conduct a

reasonable investigation or make a reasonable decision that a particular investigation is

unnecessary in order to enable him or her to make informed decisions about how best to represent

his client. Strickland v. Washington, 466 U.S. 668, 691 (1984).

The Supreme Court has repeatedly relied upon American Bar Association’s Guidelines to

inform its determination of the “objective standard of reasonableness” set forth in Strickland v.

Washington, supra. See, Rompilla v. Beard, 545 U.S. 374, 387 n. 7 (2005) (ABA Guidelines are

“standards to which we [the Supreme Court] have long referred as guidelines for determining what

is reasonable”). The Fifth Circuit recently relied upon the ABA Guidelines in determining an

ineffective assistance of counsel claim. See, Sonnier v. Quarterman. 476 F.3d 349, 357-58 (5th

Cir.2007).

The ABA standard provides that: “Defense counsel should conduct a prompt investigation

of the circumstances of the case and explore all avenues leading to facts relevant to the merits of

the case and the penalty in the event of conviction.” ABA Standard 4-4.1(a).

In this case, Mr. Farese failed to conduct a reasonable investigation into whether there were

mitigating circumstances that would support a viable and very feasible defense to the charges that

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had been brought against Petitioner and Mr. Massey.6 Petitioner repeatedly told Mr. Farese that

Mr. Massey had a letter from the Lafayette County Attorney stating that he could work for

Petitioner as a consultant because Petitioner did not have a contract with the county. According to

the facts set forth in Petitioner’s § 2255 motion, Mr. Farese made no effort whatsoever to obtain a

copy of that letter. Instead, he told Petitioner that the letter did not even exist.

Mr. Farese had to have been aware that the letter did, indeed, exist once Mr. Massey’s

attorney filed the Rule 12.3 motion on the day Petitioner entered his guilty plea, July 27, 2007. On

September 28, 2007 Petitioner and his brother came to Mr. Farese’s office and tried to persuade

Mr. Farese to do whatever was necessary to enable Petitioner to withdraw his guilty plea. Mr.

Farese failed to provide Petitioner with effective assistance of counsel when he, for whatever

reason, refused to advise Petitioner that the Rule 12.3 motion had been filed, and that it could,

perhaps, provide Petitioner with grounds to withdraw his guilty plea.

The Fifth Circuit Court of Appeals has stated: “if the quality of counsel's advice falls below

a certain minimum level, the client's guilty plea cannot be knowing and voluntary because it will

not represent an informed choice. And a lawyer who is not familiar with the facts and law relevant

to his client's case cannot meet that required level.” Childress v. Johnson, 103 F.3d 1221, 1227

(C.A.5 (Tex.),1997) citing Herring v. Estelle, 491 F 2d 125, 128 (5th. Cir. 1974).

Petitioner submits that he has alleged facts in his § 2255 motion, and the motions at issue

here, that entitle him to relief if his “factual allegations are true.” Tucker v. U.S., supra. He is,

therefore, entitled to an evidentiary hearing and an opportunity to prove that those allegations are

true. See, Evans v. United States, 2009 WL 1324953 p. 6 (N.D. Miss. 2009)( “Because the record

6
The Fifth Circuit holds that “[The] failure to investigate a potentially sound defense can, under some
circumstances, constitute ineffective assistance of counsel that entitles a petitioner to relief. “ Brown v.
Johnson, 224 F.3d 461, 469, n. 16 (5th Cir. 2000), citing Hill v. Lockhart, 474 U.S. 52, 59-60 (1985).

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does not conclusively negate the movant's claim of ineffective assistance for failure to file a notice

of appeal, the court shall set an evidentiary hearing to determine whether the movant requested that

his attorney file a notice of appeal”); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3d Cir.

1994) (petitioner entitled to evidentiary hearing on ineffective assistance of counsel claim where

facts viewed in light most favorable to petitioner would entitle him to relief); Aron v. United

States, 291 F.3d 708, 714-15 (11th Cir. 2002)(“if the petitioner ‘alleges facts that, if true, would

entitle him to relief, then the district court should order an evidentiary hearing and rule on the

merits of the claim’”)(citations omitted).

CONCLUSION

Petitioner Ken Nowlin, therefore, respectfully moves this Court to grant him an

evidentiary hearing and thereby provide him with the opportunity to show that his attorney,

Anthony Farese, was ineffective in failing to advise him that the Rule 12.3 motion at issue here

had been filed and that it could provide Petitioner with grounds to withdraw his guilty plea.

Petitioner should also be allowed to present evidence showing that he was incapable of entering a

voluntary and intelligent plea of guilty due to Mr. Farese’s ineffectiveness.

This the 14th day of March , 2011.

Respectfully Submitted,

KEN NOWLIN

/s/ Cynthia A. Stewart

CYNTHIA A. STEWART

14
 Case 3:07-cr-00108-GHD-SAA Document 114 Filed 03/14/11 Page 15 of 15

SUBMITTED BY:

CYNTHIA A. STEWART, P.A. (MSB #7894)

118 Homestead Drive, Suite C
Madison, Mississippi 39110
Telephone: (601) 856-0515
Facsimile: (601) 856-0514

PRECIOUS T. MARTIN, SR., ESQ. (MSB #10619)

Precious T. Martin, Sr. & Associates, PLLC
P. O. Box 373
Jackson, Mississippi 39205
Telephone: (601) 944-1447
Facsimile: (601) 944-1448

CERTIFICATE OF SERVICE

I, the undersigned attorney for the Petitioner herein, do hereby certify that the above and

foregoing is being filed with the Clerk of this Court by electronic filing and will be served via

email by the Clerk of this Court to the following:

John Marshall Alexander, Esq.

john.alexander@usdoj.gov

Robert H. Norman, Esq.

bob.norman@usdoj.gov

This the 14th day of March, 2011.

/s/ Cynthia A. Stewart

CYNTHIA A. STEWART

15