Opinion
Nos. 02-3030-SAC, 99-40075-01-SAC
March 5, 2003
MEMORANDUM AND ORDER
The case comes before the court on the following motions filed by the movant/defendant Daniel Joseph Meindl: motion to vacate, set aide or correct sentence pursuant to 28 U.S.C. § 2255 (Dk. 72); motion for the sentencing transcripts (Dk. 73); motion to correct clerical mistakes with defendant's sentence pursuant to Rule 36 (Dk. 74); motion to compel (Dk. 75); and motions for hearing (Dks. 76 and 77). The court ordered the government to file any response by November 20, 2002. (Dk. 78) The government filed on November 12, 2002, a motion to dismiss the defendant's § 2255 petition or, in the alternative, motion for extension of time to file response. (Dk. 79). The defendant has filed a response to the government's motion to dismiss. (Dk. 80).
Daniel Joseph Meindl was the sole defendant named in a five-count indictment that charged him with three counts of manufacturing methamphetamine and two counts of possessing a firearm during and in relation to a drug trafficking crime. The defendant initially pleaded guilty to the three drug charges and to one of the firearm charges. Just before the sentencing hearing, the defendant withdrew his guilty plea to the firearm charge in count two and entered a guilty plea to the firearm charge in count six. The court sentenced the defendant to the statutory mandatory minimum of 120 months on the drug manufacturing counts and to a consecutive 60 months on the firearm count. The defendant did not appeal his conviction or sentence, but he has filed a motion for relief under 28 U.S.C. § 2255 and related motions that collaterally attack his conviction and sentence. The defendant filed his § 2255 motion within one year after the judgment was filed in this case.
The government moves to dismiss the § 2255 arguing that the defendant as part of the plea agreement knowingly and voluntarily waived his right to collaterally attack his conviction. The defendant responds that his motion challenges his due process right to notice of the charges for which he will be punished and his right to effective assistance of counsel. The defendant complains the indictment did not reference the corresponding sentencing provision of 21 U.S.C. § 841(b)(1)(A), (B) or (C) and did not mention actual methamphetamine. The defendant argues the waiver does not preclude his motion, because the sentencing court departed upwards in determining relevant conduct based on actual methamphetamine and based on amounts that were not charged in the indictment.
Paragraph three of the parties' plea agreement addresses the waiver in these terms:
3. Defendant freely, voluntarily, knowingly and intelligently waives any right to appeal or collaterally attack any matter in connection with this prosecution and sentence.
A. The defendant is aware that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging that, the defendant knowingly waives the right to appeal any sentence within the guideline range applicable to the statute of conviction as determined by the court after resolution of any objections by either party to the presentence report to be prepared in this case, and the defendant specifically agrees not to appeal the determination of the court in resolving any contested sentencing factor. In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, that the court may depart upwards from the applicable sentencing guideline range as determined by the court.
(Dk. 58, Plea Agreement, pp. 2-3). At the change of plea hearing, the government referred to this term in its summary of the plea agreement, and the defendant agreed with this summary. When the government again expressly mentioned during the same hearing the defendant's waiver of his right to file a § 2255 and other collateral attack, the defendant told the court that he had a full opportunity to discuss these rights he was waiving with his attorney and that he still wished to enter his plea of guilty.
In United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002), the Tenth Circuit held "that a waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made." The Circuit also recognized that this general rule was subject to several exceptions, including "where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or where the agreement is otherwise unlawful." Id. at 1182. Moreover, "a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or waiver." Id. at 1187. Thus, when a defendant has waived his right to collaterally attack a sentence but then asserts ineffective assistance of counsel, the court must determine the specific conduct being challenged as ineffective. Ineffective assistance of counsel claims challenging the validity of the plea or the waiver itself are not subject to waiver, but all other claims are waivable.
The transcript of the change of plea hearing establishes the defendant knowingly and voluntarily waived his § 2255 rights in the plea agreement. The defendant mistakenly argues that the court upwardly departed when it sentenced him and that this qualifies as an exception to his waiver. The plea agreement provision that waives the defendant's right to bring a collateral attack does not include an exception for a sentence in which the court upwardly departs. This exception only applies to the defendant's waiver of his right to appeal his sentence. Even if the exception did apply as argued by the defendant, the court did not depart from the guidelines and, in fact, sentenced the defendant at the bottom of the applicable guideline range.
The defendant's § 2255 motion advances a number of ineffective assistance of counsel claims. Though some of them appear to address conduct prior to the defendant's conviction and plea agreement, a closer look shows all of his claims focus on the court's use of actual methamphetamine calculations in sentencing him. The defendant argues that the court erred in sentencing him on this basis when the indictment did not include allegations on actual methamphetamine and the amounts of the same. The defendant's other claims of ineffective assistance of counsel also turn on sentencing issues. The court concludes these claims do not relate to the validity of the plea agreement and waiver. As a result, the defendant has waived the right to bring these challenges, and the defendant is unable to show any need for a copy of the sentencing hearing transcript.
Even if the defendant had not waived his right to collaterally attack his sentence, the defendant would not be entitled to any relief on his motion. First, the indictment charged both actual methamphetamine and a methamphetamine mixture. Second, the change of plea hearing shows the defendant was fully aware of the ten-year mandatory minimum he was facing on the drug counts:
MR. HOUGH: Yes Judge, it is, and I would note for the record that it is the parties' collective understanding that the capacity of each one of these labs is that capacity which would meet the requirements of Title 21 United States Code section 841(b)(1)(A), which would get it into the mandatory minimum of 10 years, which is discussed in paragraph 2 of the plea agreement. So that is the parties' understanding, and we want the record to be clear on that so that there is never an Apprendi issue in this case as to quantities.
THE COURT: So as to counts 1, 3 and 5 of the indictment, carrying each a sentence of not less than 10 years, is by agreement as to the quantity; is that correct?
MR. HOUGH: That's correct. That's why the "not less than 10 years or more than life applies," because the —
THE COURT: Okay.
MR. HOUGH: — the KBI lab has done an analysis of each one of the three labs and determined that the capacity of each one of the three would fit mandatory minimum requirement under 841(b)(1)(A). All right. Counsel for the defendant, is that your understanding, also?
MR. STRONG: It is, your Honor. The government's attorney called that issue and that is correct, we do agree with that.
THE COURT: And Mr. Meindl, you've heard what the government has said, both the government counsel and your counsel. Do you understand that?
THE DEFENDANT: Yes, your honor.
THE COURT: Do you agree with that?
THE DEFENDANT: Yes, your honor.
(Dk. 81, pp. 13-14). The defendant was fully on notice of the charges which had been brought against him and to which he was pleading guilty, of the applicability of § 841(b)(1)(A) to those charges, and of the mandatory minimum sentence of ten years governing each of those charges. The defendant's § 2255 motion is devoid of merit.
The defendant also filed two pleadings seeking the court to clarify its ruling as to credit for the time he was incarcerated after his arrest and before sentencing. This ruling was in response to the defendant's objection to the presentence report. The court ruled as follows:
Ruling: While the authority to decide whether a defendant is entitled to credit for time spent in custody awaiting disposition rests with the Bureau of Prisons, it is the recommendation of this court that the defendant receive this credit. Considering that the defendant is forty-two years of age, faces a fifteen year sentence in this court and has already served most of the time imposed in state cases, the court grants the defendant's request to run this sentence concurrent to the other cases listed in the PSR.
The judgment filed in this case shows the defendant was to receive credit for the time already served in the case and that his sentences were to run concurrently with any other undischarged term of imprisonment. The court denies the defendant's request for additional clarification, as the rulings plainly state the court's recommendation and sentence. As for the credit that the defendant was to receive for time spent in custody awaiting disposition, the Bureau of Prisons makes that determination and the court is left to provide its recommendation, which was done here. The court finds no clerical mistakes to have been made in its orders or in the judgment entered in this case.
IT IS THEREFORE ORDERED that the defendant's motion to vacate, set aide or correct sentence pursuant to 28 U.S.C. § 2255 (Dk. 72); motion for the sentencing transcripts (Dk. 73); motion to correct clerical mistakes with defendant's sentence pursuant to Rule 36 (Dk. 74); motion to compel (Dk. 75); and motions for hearing (Dks. 76 and 77) are denied;
IT IS FURTHER ORDERED that the government's motion to dismiss the defendant's § 2255 petition (Dk. 79) is granted.