Opinion
Case No. 2:03cv1105TC.
June 16, 2004
ORDER
On December 16, 2002, Mr. Russell Robison filed a petition pursuant to 28 U.S.C. § 2255. Mr. Robison's § 2255 petition arises out of the interplay between state and federal sentences for violating drug laws. In resolving state and federal criminal matters against him, Mr. Robison plead guilty to both state and federal charges, and was sentenced to imprisonment. Mr. Robison is currently imprisoned in state prison in Utah, and on release, he will begin serving his sentence in federal prison for his federal conviction. With this § 2255 petition, Mr. Robison seeks to have the court amend his federal sentence to run concurrently with his state sentence. In the alternative, Mr. Robison seeks to have the court remand the case for specific performance of the plea agreement, or to allow him to withdraw his guilty plea.
Mr. Robison styled his petition as one of "habeas corpus," but he did not indicate under what statutory authority the petition was filed, or under what statutory authority relief was sought. Consequently, on January 30, 2004, the court ruled that it would treat Mr. Robison's petition as one brought under 28 U.S.C. § 2255. Robison v. U.S.A., 2:2003CV01105TC slip op. at 1 (D. Utah, Jan. 30, 2004).
Background
In the state criminal matter, case number 9919717307, Mr. Robison plead guilty on September 20, 2002, to operating a clandestine drug laboratory in violation of Utah Code Ann. §§ 58-37d-4 and -5. The events giving rise to Mr. Robison's state charge took place on May 18, 1999. (United States' Response, Ex. I, Statement of Def., at 2.) During the change of plea hearing for this case, Mr. Robison's counsel asked that the state sentencing occur after the anticipated federal plea and sentencing. (United States' Response, Ex. II, Videotape of Mr. Robison's Change of Plea Hearing for Case No. 991917307 at count 3:12:13 to 3:13:13.) If the schedule proceeded in this manner, Mr. Robison would already be in federal custody when sentenced in state court, and the state court could order the state sentence to run concurrently with the federal sentence. (Id.) The Honorable Terry Hanson, Judge of the Third Judicial District of the State of Utah, recognized that it would not be "unreasonable" to run Mr. Robison's state sentence concurrently with the anticipated federal sentence. (Id. at count 3:14:30.) Judge Hanson, however, did not commit to running Mr. Robison's sentences concurrently, and advised Mr. Robison that his maximum sentence could be life in prison. (Id. at 3:14:30 to 3:18:00.) Mr. Robison's counsel and Judge Hanson discussed the timing of Judge Hanson's sentencing to ensure that his state sentencing occurred after the federal proceedings. (Id. at 3:26:00 to 3:28:26.)On October 9, 2002, Mr. Robison plead guilty in federal court to (1) possession of a controlled substance with intent to distribute, (2) possession of drug manufacturing equipment, (3) possession of a weapon by a restricted person, and (4) possession of a weapon in furtherance of a drug crime, in violation of 21 U.S.C. § 841(a)(1), 843(a)(6), 922(g)(3), and 924(c), respectively. The events giving rise to Mr. Robison's federal charge took place on July 11, 2001, (United States' Response, Ex. II, Statement by Def. in Adv. of Plea of Guilty at 5.) On December 9, 2002, the court sentenced him to 119 months imprisonment, 60 months supervised release, and ordered him to pay $5,264.29 in restitution to the Drug Enforcement Administration Metro Narcotics Task Force. U.S.A. v. Robison, No. 2:2001-CR-00582TC (D. Utah, Dec. 9, 2002). The court did not order Mr. Robison's sentence to run concurrently with his state sentence because Mr. Robison had not yet been sentenced for the state conviction. On December 10, 2002, the court entered an Order of Judgment and Conviction on the four federal charges.
Notably, there is no reference in Mr. Robison's Statement in Advance of Plea of Guilty in the federal case that the federal sentence should run concurrently with the state sentence. (United States' Response, Ex. III.) Likewise, during the change of plea hearing, neither Mr. Robison nor his counsel advised the court that the federal sentence should run concurrently with the state sentence. (United States' Response, Ex. IV.)
Thereafter, on December 13, 2002, Mr. Robison returned to state court for sentencing. Mr. Robison's counsel told Judge Hanson that Mr. Robison was currently in federal custody, but was "writted" to the state court for purposes of the state sentencing. (United States' Response, Ex. II at 9:21:30 to 9:29:13). Judge Hanson asked Mr. Robison's counsel to confirm that because Mr. Robison was sentenced first in federal court, the federal court sentence would begin first. (Id.) Mr. Robison's counsel confirmed that understanding. (Id.) Judge Hanson then sentenced Mr. Robison to five years to life imprisonment in state custody to run concurrently with the federal sentence. (Id.)
Mr. Robison's counsel, however, was apparently mistaken about Mr. Robison's custody arrangements. After the state sentencing, Mr. Robison was taken into state custody, not federal, to begin serving his state sentence of five to life. As a result, Judge Hanson's judgment that the state sentence run concurrently with the federal sentence has no effect; Mr. Robison's federal sentence has not begun to run, and Mr. Robison will not begin to serve the federal sentence until released from state custody. Mr. Robison now seeks to have this court amend his federal sentence to run concurrently with his state sentence.
Discussion
Mr. Robison's § 2255 petition must be denied because he waived his right to collaterally attack his sentence under § 2255. Specifically, in his Statement in Advance of Plea of Guilty, he agreed to the following:
I . . . knowingly and voluntarily waive my right to challenge my sentence, and the manner in which the sentence was determined, in any collateral review motion, writ or other procedure, including, but not limited to a motion brought under 28 U.S.C. § 2255.
(United States' Response, Ex. II at 4.) Furthermore, at his change-of-plea-hearing, the court advised Mr. Robison of this broad waiver, and asked Mr. Robison if he understood that he was waiving all his rights to challenge his sentence or conviction. (United States' Response, Ex. IV, Transcript of Change of Plea Hearing at 29.) Mr. Robison responded that "[y]es," he understood he was waiving his rights to appeal or otherwise challenge his conviction or sentence.
Mr. Robison's waiver is valid because the evidence shows that it was entered voluntarily, knowingly and intelligently. See, e.g., United States v. Cockerham, 237 F.3d 1179, 1181-83 (holding that express waiver of § 2255 rights in plea agreement is enforceable when petitioner is challenging the sentence and the plea and waiver were knowingly and voluntarily made); see also United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (holding that right to § 2255 collateral attack only survives waiver if petitioner claims ineffective assistance of counsel with respect to the plea agreement).
ORDER
For the foregoing reasons, the § 2255 Motion is DENIED.