Summary
holding that a waiver of right to file a section 2255 motion is enforceable where petitioner indicated that he understood the waiver at his plea colloquy
Summary of this case from Puff v. United StatesOpinion
3:CR-03-340, 3:CV-06-070.
August 28, 2006
ORDER
THE BACKGROUND OF THE ORDER IS AS FOLLOWS:
On October 4, 2004, Defendant Khasan Dancy pled guilty to conspiracy to make false statements to firearms dealers and conspiracy to distribute and possess with intent to distribute cocaine base (crack), in violation of 18 U.S.C. § 371 and21 U.S.C. § 846, respectively. (Dkt. Entries 21 and 23.) The guilty plea was entered pursuant to a Plea Agreement (the "Agreement"). (See Dkt. Entry 22.) The Agreement provided that the Government and Mr. Dancy would recommend to the Court a sentence of 108 months imprisonment, three years of supervised release, and a special assessment of $200.00. (Id. at ¶ 11.) The statutory provisions Mr. Dancy violated called for an aggregate maximum possible sentence of twenty-five years in prison; a $1,250,000 fine; up to three years of supervised release; costs of prosecution; and assessments totaling $200.00. (Id. at ¶ 4.) The sentencing guidelines provided for an imprisonment range of 210 to 262 months. (See Presentence Investigation Report, at 18.) The Court accepted the Agreement and, on October 27, 2004, imposed the sentence recommended by the Government and Mr. Dancy, including 108 months in prison. (Dkt. Entry 30.)
On November 25, 2003, a grand jury returned an eleven count indictment against Mr. Dancy, including the two counts Mr. Dancy pled guilty to. (Dkt. Entry 1.) As part of the Plea Agreement, the Government agreed to move for dismissal of the remaining nine counts after Mr. Dancy's sentencing. (Dkt. Entry 22, at ¶ 1.) The Court granted the Government's motion. (Dkt. Entry 30.)
The Agreement was a Rule 11(c)(1)(C) agreement in which the Government agreed to a specific sentence in return for the defendant's plea of guilty. See Fed.R.Crim.P. 11(c)(1)(C).
The Agreement was the culmination of extensive negotiations between the Government and Mr. Dancy and his attorney. (See, e.g., Transcript of Change of Plea, October 4, 2004 ("Transcript"), Dkt. Entry 31, at 19:18 to 22:5 (Defendant's counsel summarizing plea bargaining discussions).) The Agreement explicitly outlined the crimes Mr. Dancy pled guilty to; his sentence; his obligation to cooperate with, and provide assistance to, the Government; and the consequences for breach of the Agreement. Crucial to the matter at hand was Mr. Dancy's express waiver of his rights to appeal and challenge his conviction and sentence. Specifically, in consideration for the Government's assent to Mr. Dancy's guilty plea, the Government's recommendation of a substantially reduced sentence from that provided for by the sentencing guidelines, and the Government's promise to move for dismissal of the remaining counts of the indictment, Mr. Dancy
knowingly waive[d] the right to appeal any conviction and sentence, including a sentence imposed within the statutory maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other grounds, constitutional or non-constitutional . . . so long as [Mr. Dancy] receives a sentence of 108 months in prison, a period of supervised release of [three] years and a special assessment of $200.00. [Mr. Dancy] also waive[d] [his] right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United State Code, Section 2255.
(Dkt. Entry 22, at ¶ 32 (emphasis added).) At the end of the Agreement, Mr. Dancy signed an acknowledgment that he read the Agreement, reviewed the Agreement with his attorney, fully understood the Agreement, and voluntarily agreed to its terms. That Mr. Dancy read the appeal and collateral challenge waiver is further evidenced by Mr. Dancy's signature in the margin of paragraph 32. (See id.) When the Agreement was typed, it omitted the three year period of supervised release; Mr. Dancy's signature in the margin acknowledged the addition of a handwritten "three" to complete the Agreement. (Id.) Finally, when Mr. Dancy entered his guilty plea in this Court, the Government's attorney explained the waiver provisions. (Transcript, Dkt. Entry 31, at 17:8-24.) Mr. Dancy replied "[y]es" to the Court's question of whether he understood the Agreement's waiver provision. (Id. at 17:25 to 18:1.)
Before accepting Mr. Dancy's guilty plea, the Court was required to inform Mr. Dancy of his rights and the consequences of pleading guilty, and to determine his understanding of the terms of the Agreement, including the waiver. See Fed.R.Crim.P. 11(c)(1)(C). The Court fulfilled its obligation. (See Transcript, Dkt. Entry 31, at 8:10 to 12:17; 17:25 to 18:8.) The Government then summarized the evidence that would be presented at trial, and Mr. Dancy agreed the Government could prove the facts supporting the counts Mr. Dancy pled guilty to beyond a reasonable doubt. (Id. at 27:1-18.) Mr. Dancy acknowledged to the Court that his decision to plead guilty was voluntary and not the result of force or threats toward Mr. Dancy or any individual close to him. (Id. at 27:19 to 28:6.) Mr. Dancy indicated his satisfaction with the advice and efforts of his attorney. (Id. at 7:23 to 8:9.) Accordingly, the Court accepted Mr. Dancy's guilty plea. (Id. at 29:8-25.)
The Court advised Mr. Dancy that answering the Court's questions falsely with the intent to deceive the Court would subject Mr. Dancy to prosecution for perjury. After Mr. Dancy assured the Court he understood his duty to answer truthfully and the consequences of false answers, Mr. Dancy was duly sworn. (See Transcript, Dkt. Entry 31, at 4:11 to 5:2.)
On January 11, 2006, Mr. Dancy filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, in spite of Mr. Dancy's express waiver of his right to collaterally challenge his conviction and sentence. (Dkt. Entry 47.) Mr. Dancy subsequently filed an amended motion on June 19, 2006. (Dkt. Entry 53.) Mr. Dancy's motion raises four issues. First, Mr. Dancy alleges that his guilty plea was not knowing or voluntary. (Id. at 4, 14-16.) Second, Mr. Dancy alleges ineffective assistance of counsel. (Id. at 5, 17-19.) Next, Mr. Dancy challenges the Government's basis for charging him with conspiracy to make false statements to firearms dealers. (Id. at 6, 20-22.) Finally, Mr. Dancy asserts the same challenge against the charge of conspiracy to distribute and possess with intent to distribute cocaine base, and also challenges his sentence. (Id. at 8, 23-24.)
The dispositive issue is whether Mr. Dancy's waiver of his right to challenge his conviction and sentence under § 2255 is valid and enforceable. Our Court of Appeals has not definitively spoken as to the validity of provisions in plea agreements waiving the right to file a § 2255 motion, United States v. Wilson, 429 F.3d 455, 460 n. 6 (3d Cir. 2005), although the court refused to require the Miller notice where the defendant waived his right to file a collateral attack. United States v. Perry, 142 Fed. Appx. 610, 613 (3d Cir. 2005). Other circuits have enforced a defendant's express waiver of his or her right to file a § 2255 motion where the waiver is knowingly and voluntarily made. See, e.g., United States v. Cockerham, 237 F.3d 1179, 1181-83 (10th Cir. 2001); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000); Watson v. United States, 165 F.3d 486, 488-89 (6th Cir. 1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); United States v. Abarca, 985 F.2d 1012. 1014 (9th Cir. 1993). In enforcing such waivers, these courts have analogized the defendant's waiver of his right to direct appeal with the waiver of a right to pursue a collateral challenge, and reason that both are statutory and therefore subject to waiver. See, e.g., Watson, 165 F.3d at 488 ; Abarca, 985 F.2d at 1014.
See United States v. Miller, 197 F.3d 644 (3d Cir. 1999).
The Third Circuit has recognized that defendants may waive their rights in a plea agreement to file a direct appeal so long as the waiver is knowing and voluntary and the waiver would not result in a "miscarriage of justice." United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001). Other district courts in this circuit have extended Khattak's holding and principles to a provision in a plea agreement waiving the right to pursue collateral challenges. See, e.g., United States v. Minott, Civ. A. No. 05-1135, Crim. A. No. 04-59, 2006 WL 2372118, at *1 (W.D. Pa. Aug. 15, 2006); United States v. Lam, Civ. A. No. 05-5530, Crim. A. 04-304, 2006 WL 1530875, at *2 (E.D. Pa. June 2, 2006); Prado v. United States, No. Civ. 05-0938, No. Crim. 01-373-7, 2005 WL 1522201, at *2 (D.N.J. June 27, 2005). The Court agrees that a waiver of a right to file a § 2255 motion is enforceable if knowingly and voluntarily made and would not result in a miscarriage of justice.
In the matter sub judice, it is beyond question that Mr. Dancy's waiver of his right to file a § 2255 motion pursuant to the Agreement was knowingly and voluntarily made. Despite Mr. Dancy's protestations to the contrary, the consequences of the waiver were fully explained to Mr. Dancy by his attorney and the Government's attorney. Moreover, the Court conducted an extensive plea colloquy under Rule 11 and questioned Mr. Dancy, under oath, as to whether he understood the waiver. See Khattak, 273 F.3d at 563 (in determining whether a waiver is voluntary and knowing, district court's compliance with Rule 11 is critical). Mr. Dancy responded affirmatively that he understood the waiver, including that by pleading guilty he would forego his right to file a § 2255 motion. To now entertain Mr. Dancy's complaint that his waiver was not knowingly or voluntarily made "would make a mockery of Rule 11 and the judicial system." United States v. Washington, No. 3:05-CV-1063, No. 3:01-CR-231, 2005 WL 3262961, at *3 (M.D. Pa. Dec. 1, 2005). Accordingly, the Court concludes Mr. Dancy's waiver of his right to assert a collateral challenge under § 2255 was knowing and voluntary.
Since the Court concludes the waiver was knowing and voluntary, the waiver is enforceable as to the first ground asserted in Mr. Dancy's § 2255 motion.
Since the Court concludes the waiver was knowing and voluntary, the Court will enforce the waiver unless a miscarriage of justice would result. Mr. Dancy has asserted nothing in his § 2255 motion suggesting a miscarriage of justice would result. Mr. Dancy was charged with serious crimes involving firearms and the distribution of controlled substances. The Government's case was strong, and Mr. Dancy acknowledged under oath that the Government could prove the charges in which he pled guilty beyond a reasonable doubt. Grounds three and four of Mr. Dancy's § 2255 motion, which simply challenge the Government's evidence, are without merit and do not even cast doubt on Mr. Dancy's guilty plea and waiver, much less rise to the level of a miscarriage of justice.
The second ground of Mr. Dancy's § 2255 motion, that he was deprived of effective assistance of counsel in connection with the plea bargaining process, is equally without merit and will not render his waiver unenforceable. In determining whether a miscarriage of justice would result, our Court of Appeals has enumerated certain factors to consider before allowing a defendant to evade an express waiver. Among other things, the Court should consider the
clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result."Khattak, 273 F.2d 557 (quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). Although ineffective assistance of counsel in negotiating a plea agreement could constitute grave error resulting in a miscarriage of justice, see United States v. Robinson, No. Civ. 04-884, No. Crim. 02-760, 2004 WL 1169112, at *3 (E.D. Pa. Apr. 30, 2004), Mr. Dancy's naked assertions that his attorney was ineffective do not persuade the Court to relieve Mr. Dancy of his express waiver. Mr. Dancy argues his attorney failed to thoroughly and completely explain the provisions of the Agreement, a contention belied by Mr. Dancy's statements, under oath, during the plea colloquy. (See Transcript, Dkt. Entry 31, at 12:10-17 (Mr. Dancy stating to the Court that his attorney reviewed the terms of the Agreement with him and that Mr. Dancy is satisfied that he understands the terms and conditions); see also id. at 8:7-9 (Mr. Dancy answers "[y]es" to the Court's inquiry as to whether he is "satisfied with the advice and efforts of [his attorney]")). Mr. Dancy's other complaints, assuming they amount to error by his attorney, are trivial and far too attenuated from the plea negotiations and waiver to had have any impact thereon.
Courts of appeals in other circuits who have approved waivers of collateral challenge rights have carved out an exception where the challenge alleges ineffective assistance of counsel in connection with negotiating or entering the plea or waiver. See, e.g., United States v. White, 307 F.3d 336, 343 (5th Cir. 2002); Cockerham, 237 F.3d at 1187 ; Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). Even here, the waiver is only unenforceable if "the ineffective assistance of counsel operated to cast doubt on the validity or voluntariness of [the] plea or waiver." United States v. Kerns, 53 Fed. Appx. 863, 865 (10th Cir. 2002); see also Cockerham, 237 F.3d at 1190 (relieving defendant, charged under 18 U.S.C. § 924(c), of his waiver where the defendant alleged his attorney failed to advise him of the effect of Bailey v. United States, 516 U.S. 137 (1995), on that charge). Mr. Dancy does not advance any grounds in his § 2255 motion that would cause the Court to doubt or question the validity or voluntariness of his guilty plea or waiver.
Even if Mr. Dancy did not waive his right to challenge his conviction on the basis of ineffective assistance of counsel, his challenge is wholly without merit. To demonstrate ineffective assistance of counsel, the defendant must prove "that his attorney's performance was deficient, i.e., unreasonable under prevailing professional standards; and . . . that he was prejudiced by the attorney's performance." United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). See also Strickland v. Washington, 466 U.S. 668, 687-90 (1984); United States v. Jones, 336 F.3d 245, 253-54 (3d Cir. 2003); Washington, supra, 2005 WL 3262961, at *4.
Mr. Dancy's cannot show prejudice, nor deficient performance, by his attorney. To the contrary, Mr. Dancy's attorney vigorously negotiated the Agreement with the Government. The initial proposal was a straight cooperation plea agreement calling for a guideline range of 135 to 168 months, before reduction for substantial assistance. (See Transcript, Dkt. Entry 31, at 19:18-24, 20:8-24.) The finished product called for a specific sentence of 108 months, less than the initial proposal. Furthermore, Mr. Dancy was facing 210 to 262 months in prison under the sentencing guidelines. "Consequently, one could conclude that counsel was quite effective in representing him by avoiding a sentence far greater [than] he ultimately received."Washington, 2005 WL 3262961, at *5.
Mr. Dancy also alleges his attorney failed to investigate "his client's innocence" or otherwise perform any "real defense work." (Dkt. Entry 53, at 17.) Our Court of Appeals rejected similar complaints in Jones; like the defendant in Jones, Mr. Dancy "has not pointed to any specific act or omission or objective evidence to support his blanket contentions." Jones, 336 F.3d at 255. Furthermore, his complaints are undermined by his statements during the plea colloquy, under oath, that he was satisfied with his attorney's performance.
In summary, even if Mr. Dancy were relieved of his express waiver as to the ineffective assistance of counsel claim, Mr. Dancy has failed to establish prejudice or deficient performance.
In summary, Mr. Dancy's waiver of the right to file a § 2255 motion is valid and enforceable because it was knowingly and voluntarily made, and its enforcement would not result in a miscarriage of justice. ACCORDINGLY IT IS HEREBY ORDERED THAT:
1. Defendant's amended motion to vacate or correct his sentence (Dkt. Entry 53) is DISMISSED.
2. The Clerk of Court is directed to mark this action and the related civil action, 3:CV-06-070, CLOSED.
3. As the Court of Appeals for the Third Circuit has yet to rule definitively on the validity of a waiver of the right to file a collateral challenge to a conviction under 28 U.S.C. § 2255, Dancy is granted a certificate of appealability as to that issue only.