Opinion
Civil Action 4:21cv471 Criminal Action 4:19cr180(1)
09-19-2024
MARTIN KYLE CUMMINS, #28826-078 v. UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
RICHARD A. SCHELL, UNITED STATES DISTRICT JUDGE
Pending before the Court is pro se Movant Martin Kyle Cummins's motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255. After reviewing the case, the court concludes that Movant's § 2255 motion should be denied and the case should be dismissed with prejudice.
I. PROCEDURAL HISTORY
On December 20, 2019, pursuant to a written plea agreement, Movant pled guilty to aiding and abetting a bank robbery, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2113(a). Crim. ECF (Dkt. ##55-61). On July 13, 2020, judgment was entered, and the court sentenced Movant to 46 months' imprisonment and three years supervised release. Crim. ECF (Dkt. ##77, 84). He did not file a direct appeal but filed the present § 2255 motion on June 21, 2021. (Dkt. #1).
In his § 2255 motion, Movant argues that he is entitled to relief because (1) he did not receive proper credit for time served and (2) he did not receive “reduced sentencing considerations” in exchange for information he provided to the Government in a proffer.
II. STANDARD FOR FEDERAL HABEAS CORPUS PROCEEDINGS
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). In a § 2255 proceeding, a movant may not bring a broad-based attack challenging the legality of the conviction. The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.” United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th Cir. 1992) (citations omitted). A collateral attack is limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). Conclusory allegations, which are unsupported and unsupportable by anything else contained in the record, do not raise a constitutional issue in a habeas proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). The role of § 2255 has been defined by the Fifth Circuit as follows:
Section 2255 provides relief for a petitioner who can establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack.United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). “Section 2255 does not reach errors of constitutional or jurisdictional magnitude that could have been reached by a direct appeal.” Id. Similarly, “issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 motions.” United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)); United States v. Goudeau, 512 Fed.Appx. 390, 393 (5th Cir. 2013).
III. DISCUSSION AND ANALYSIS
In his § 2255 motion, Movant asserts two grounds for relief: (1) he did not receive proper credit for time served; and (2) he did not receive “reduced sentencing considerations” in exchange for information he provided to the Government in a proffer. The Government argues that both of Movant's claims are barred by the appeal waiver in the Movant's plea agreement. (Dkt. #7). Additionally, the Government argues that Movant's first ground for relief is not cognizable in a § 2255 proceeding, but rather must be addressed as a habeas corpus petition under 28 U.S.C. § 2241, and that Movant's second ground for relief is refuted by the record.
Movant signed a plea agreement containing the following waiver provision:
12. WAIVER OF RIGHT TO APPEAL OR OTHERWISE CHALLENGE SENTENCE: Except as otherwise provided in this paragraph, the defendant waives the right to appeal the conviction, sentence, fine, order of restitution, or order of forfeiture in this case on all grounds. The defendant further agrees not to contest the conviction, sentence, fine, order of restitution, or order of forfeiture in any post-conviction proceeding, including, but not limited to, a proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal any punishment imposed in excess of the statutory maximum. The defendant also reserves the right to appeal or seek collateral review of a claim of ineffective assistance of counsel.Crim. ECF (Dkt. #57, pp. 6-7).
The Fifth Circuit has upheld the informed and voluntary waiver of post-conviction relief in United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995), the Fifth Circuit held that a waiver may not be enforced against a § 2255 movant who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary. In United States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an ineffective assistance of counsel claim raised in a § 2255 proceeding survives a waiver only when the claimed assistance directly affected the validity of that waiver or the plea itself. Additionally, the Fifth Circuit noted that it has upheld § 2255 waivers except for when there is an ineffective assistance of counsel claim that affects the validity of that waiver or the plea itself or when the sentence exceeds the statutory maximum. United States v. Hollins, 97 Fed.Appx. 477, 479 (5th Cir. 2004).
Here, Movant does not allege that his plea or waiver was involuntary or unknowing. In fact, the record demonstrates that the Movant's waiver was both knowing and voluntary. The plea agreement clearly states that Movant understood the nature and elements of the crime to which he admitted guilt. Crim. ECF (Dkt. #57, p. 1, ¶ 2). Additionally, the plea agreement provides that “[t]his plea of guilty is freely and voluntarily made and is not the result of force, threats, or promises other than those set forth in this agreement.” Crim. ECF (Dkt. #57, p. 6, ¶ 11). Finally, Movant signed the plea agreement, stating that “I have read or had read to me this plea agreement and have carefully reviewed every part of it with my attorney. I fully understand it and voluntarily agree to it.” Crim. ECF (Dkt. #57, p. 9).
At the change of plea hearing, the magistrate judge specifically reviewed the waiver provision of the plea agreement with Movant, and Movant confirmed that he understood the waiver:
THE COURT: If you look with me next at paragraph 12, that's your appellate rights. You have agreed, sir, to give up your appellate rights, except in two very limited circumstances: Where punishment is imposed in excess of the statutory maximum, or where you have a claim for ineffective assistance of counsel. Do you understand that?
DEFENDANT CUMMINS: Yes, ma'am, I do.
THE COURT: And did you voluntarily and of your own free will agree to give up your appellate rights, except in those two limited circumstances we've just discussed?
DEFENDANT CUMMINS: Yes, ma'am, I do.Crim. ECF (Dkt. #83, p. 21).
Movant's waiver, therefore, was both knowing and voluntary because Movant indicated that he read and understood the plea agreement and the plea agreement contained an “explicit, unambiguous waiver of appeal.” United States v. Kelly, 915 F.3d 344, 348 (5th Cir. 2019). Movant's § 2255 claims do not allege punishment in excess of the statutory maximumor ineffective assistance of counsel affecting the validity of Movant's guilty plea or the waiver of post-conviction relief contained in Movant's plea agreement. As such, Movant may not pursue his sentencing claims because they are barred by the clear terms of the appeal waiver. See id.
Movant was sentenced well below the twenty-year statutory maximum term of imprisonment. See 18 U.S.C. § 2113(a).
To the extent Movant's first ground for relief might arise under 28 U.S.C. § 2241 because it relates to the execution of Movant's sentence, see, e.g., Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (explaining that a federal prisoner may file a petition under 28 U.S.C. § 2241 in order to attack the manner in which a sentence is carried out or the prison authorities' determination of its duration), the court lacks jurisdiction because a § 2241 petition must be filed in the same district where the prisoner is incarcerated, see id.; Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001). When Movant filed this case, he was incarcerated at FMC Fort Worth in Tarrant County, Texas, which is located in the Northern District of Texas, Fort Worth Division. See 28 U.S.C. § 124(a)(2).
Moreover, the record refutes Movant's claim that he was promised “reduced sentencing considerations” in exchange for “actionable intelligence.” (Dkt. #1, p. 5). The proffer letter, which was signed by Movant, Movant's counsel, and the Government, stated:
[T]he United States is not offering to confer any benefit upon Mr. Cummins (including the filing of a substantial assistance motion) simply because he has agreed to provide a proffer of information. To date, the United States has made no offer to impart a benefit on Mr. Cummins in exchange for the proffer or otherwise.(Dkt. #8, p. 3). The proffer letter also provided that the letter “contain[ed] the entire agreement” between Movant and the Government and that “[n]o other agreement, understanding, promise or condition may become part of this agreement unless it is committed to writing and signed” by Movant, Movant's counsel, and the Government. (Dkt. #8, pp. 3-4). Movant does not point to anything in writing in which the Government agreed to urge sentencing concessions apart from those that ultimately became part of Movant's written plea agreement. See Crim. ECF (Dkt. #57, p. 3, ¶ 5(a) (providing that “[a] reduction of two levels for acceptance of responsibility under U.S.S.G. § 3E1.1 applies” and that the Government would request an additional one-level reduction if certain conditions were met)).Furthermore, at the change of plea hearing, Movant affirmed that no promises were made to him that were outside the plea agreement. Crim. ECF (Dkt. #83, pp. 19-22). Accordingly, in addition to being barred by the appeal waiver, Movant's second ground for relief is not supported by the record.
Movant received the three-point reduction for acceptance of responsibility. Crim. ECF (Dkt. #69, p. 6, ¶¶ 25-26).
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, the court, nonetheless, addresses whether Movant would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability because “the district court that denies a [movant] relief is in the best position to determine whether the [movant] has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional claims on the merits, the movant must demonstrate “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching the underlying constitutional claim, a [certificate of appealability] should issue when the movant shows, at least, that jurists of reason would find it debatable whether the motion states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id.
In this case, reasonable jurists could not debate the denial of Movant's § 2255 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (citing Slack, 529 U.S. at 484). Accordingly, Movant is not entitled to a certificate of appealability.
V. CONCLUSION AND ORDER
Based on the foregoing, the motion for relief pursuant to 28 U.S.C. § 2255 is denied and the case is dismissed with prejudice. To the extent Movant may raise a claim pursuant to 28 U.S.C. § 2241, that claim is dismissed without prejudice.
It is therefore ORDERED the motion to vacate, set aside, or correct sentence is DENIED, and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. It is further ORDERED that all motions by either party not previously ruled on are DENIED.