Opinion
Civil Case No. 2:03-CV-131 TS, Criminal Case No. 2:01-CR-391 TS.
June 22, 2004
ORDER DENYING AND DISMISSING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255.
This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (hereinafter referred to as "Petitioner's § 2255 Motion"), filed February 3, 2003. The government filed its response on April 2, 2003, and Petitioner filed his reply on May 1, 2003. Petitioner is proceeding pro se in this matter.
The government's response is entitled, "United States' Opposition to Defendant's Petition Under 28 U.S.C. § 2255." The government twice requested and received extensions of time in which to respond to Petitioner's § 2255 Motion.
Defendant's pleading is styled, "Dennis Ellis Opposition to United State[s] of America's Opposition on 28 U.S.C.. § 2255."
The Court, having considered the motions and pleadings, having reviewed the file, and being otherwise fully informed, will DENY Petitioner's § 2255 Motion and dismiss this case, as set forth below.
DISCUSSION
The Court makes the initial finding that Petitioner's § 2255 Motion was timely filed; Petitioner's judgment became final on April 17, 2002, and Petitioner's § 2255 Motion was filed on February 3, 2003, within the one-year limitations period set by 28 U.S.C. § 2255(1).
In Petitioner's § 2255 Motion, two grounds are raised: 1) that the presentence report was in error for construing Petitioner's prior burglary conviction as a crime of violence, resulting in a six-point enhancement; and 2) that Petitioner's trial counsel failed to adequately raise this argument at sentencing. In his Reply, Petitioner further avers that he pleaded guilty only on the basis of his trial counsel's assurance of a certain offense level; he had difficulty in contacting trial counsel prior to sentencing; and he neither discussed nor authorized trial counsel's retraction of his objections raised in ground one above. Petitioner further argues that there is no evidence supporting the referenced enhancement.
The government responds that: 1) Petitioner, at the time of his guilty plea, expressly waived all rights to collateral appeal under § 2255, and 2) Petitioner raises what could be considered an ineffective assistance of counsel claim that pertains solely to a sentencing issue.
I. APPEAL WAIVER
In the January 10, 2002, plea agreement, Petitioner waived both his direct and collateral appeal rights as follows:
Fully understanding my right to appeal my sentence . . ., and in consideration of the concessions and/or commitments made by the United States in this plea agreement, I knowingly, voluntarily, and expressly waive my right to appeal any sentence imposed upon me, and the manner in which the sentence is determined, on any of the grounds set forth in 18 U.S.C. § 3742 or on any ground whatever . . .
I also 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.
Plea agreement at 5 (emphasis added). Under the plea agreement, Petitioner agreed to enter a plea of guilty, and waive his appeal rights and his right to bring a motion to suppress evidence. In consideration for Petitioner's waivers, the government joined with trial counsel "in requesting a three (3) level reduction below the applicable guideline range pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure . . ." Plea agreement at 6.
The plea agreement further sets forth that, if the government were to appeal the sentence, Petitioner would be released from his appeal waiver. The Court notes that the government has not filed an appeal, and the time for direct appeal has passed.
A. Legal Standard.
The Tenth Circuit has long recognized that a defendant should be held strictly to the terms of a lawful plea agreement. United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998) (internal citations omitted) ("This court will hold a defendant to the terms of a lawful plea agreement"). That includes instances when, as a part of the plea agreement, a defendant has waived his right to appeal. "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 are knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Therefore, a collateral appeal waiver is enforceable if it is: 1) expressly stated in the plea agreement, and 2) both the plea and waiver are knowingly and voluntarily made.
1. "expressly stated"
The express language of the plea agreement, quoted above, provides that Petitioner "knowingly and voluntarily waive[d his] 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." Not only does this language provide for a clear, express waiver of collateral appeal rights, it also references the exact statutory provision under which this action is brought — § 2255. The Court detects no ambiguity whatsoever in the language. Therefore, the Court finds that the collateral appeal waiver is "expressly stated in the plea agreement." Id.
2. "knowingly and voluntarily made"
To be considered valid and enforceable, both the plea of guilty and the collateral attack waiver must also be "knowingly and voluntarily made." Id. Fed.R.Crim.P. Rule 11 establishes certain procedures for the entry of a plea of guilty, and requires the Court to conduct a colloquy directly with the defendant to ensure that, among other things, the plea agreement and resulting plea are entered into voluntarily and knowingly by a defendant.
In this case, Petitioner entered a plea of guilty on January 10, 2002, and the Court entered into the above-referenced Rule 11 colloquy with him at that time. The Court explained to Petitioner that it had the responsibility of ascertaining that any plea was entered into freely and voluntarily and not under duress. The Court inquired whether Petitioner had read the plea agreement, discussed it with his attorney, and whether he understood it. Petitioner responded in the affirmative. After both counsel summarized the terms of the plea agreement for the record, Petitioner confirmed that he had no questions about it and that he understood it:
Court: Do you have any questions about the agreement? Petitioner: No, sir, I don't. Court: Do you think you thoroughly understand it? Petitioner: I believe so. Yes, sir, I understand it.
Tr. at 12. In addition, Petitioner affirmed that he was pleading guilty voluntarily and of his own free will. Tr. at 17. The Court then made the finding that Petitioner was pleading guilty of his own free and voluntary will.
The Court confirmed that Petitioner was satisfied with the performance of trial counsel. When the Court inquired of Petitioner: "Are you fully satisfied with the counsel, representation and advice given to you by Mr. Kouris in this case?" Petitioner responded, "Yes, sir. It was great." Tr. at 5. Petitioner confirmed that no one had offered any inducements or made any threats or forced him to enter his guilty plea and, further, that no one offered him anything that is not contained in the plea agreement. Id.
Most importantly, though, was the Court's explicit attention to the appeal waiver itself:
Court: Mr. Ellis, have you discussed specifically the appeal rights that you are giving up by agreeing to this plea agreement and pleading guilty today? Petitioner: Yes, sir. Court: Do you believe you understand what you are giving up and waiving? Petitioner: Yes, sir, I do.
Court: Does this agreement constitute your complete understanding of the entire agreement between the government, your attorney and you? Petitioner: Yes, sir.
Tr. at 13. At the conclusion of the plea colloquy, both counsel stated for the record that they were satisfied that the Court had complied with all provisions of Fed.R.Crim.P. 11.
Finally, the Court concluded by finding that Petitioner knew his rights and waived them, that his plea was entered knowingly and voluntarily, and was supported by an independent basis in fact containing each of the essential elements of the offense. Petitioner then pleaded guilty to Count I and the Court accepted the guilty plea.
In the written plea agreement, Petitioner signed his name beneath the following statements, among others:
No threats or promises of any sort have been made to me to induce me or to persuade me to enter this plea. No one has told me that I would receive probation or any other form of leniency because of my plea. I have discussed this case and this plea with my lawyer as much as I wish to. I am satisfied with my lawyer. My decision to enter this plea was made after full and careful thought, with the advice of my lawyer, and with a full understanding of my rights, facts and circumstances of the case, and the consequences of the plea. I was not under the influence of any drugs, medication, or intoxicants when the decision to enter the plea was made, and I am not now under the influence of drugs, medication or intoxicants. I have no mental reservations concerning the plea. I understand and agree to all of the above. I know that I am free to change or delete anything contained in this statement. I wish to make no changes because all of the statements are correct.
Plea agreement at 7-8 (paragraph numbers and tabs omitted).
Finally, at sentencing, the Court advised Petitioner as follows: "Mr. Ellis, I am required to advise you that you may have the right to appeal consistent with the written plea agreement that you entered into in this case, which expressly limited your right to appeal, as I think you know full well." Tr. at 16.
Considering the above, the Court finds that both Petitioner's plea of guilty and his collateral appeal waiver were "knowingly and voluntarily made." Id.
Having found that the collateral appeal waiver was expressly stated in the plea agreement, and was knowingly and voluntarily made, the Court finds that the waiver is valid and enforceable.
B. Claims Which May Survive Waiver.
The Tenth Circuit has outlined several exceptions that may render an otherwise enforceable waiver inapplicable. Those exceptions are "where the district court relied on an impermissible factor such as race, where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, where the sentence exceeds the statutory maximum, or where the waiver is otherwise unlawful."United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir. 2001) (emphasis added). Once it has been established that Petitioner entered into the express waiver both knowingly and voluntarily, the appeal must be dismissed unless Petitioner can demonstrate that one of those exceptions apply. Atterberry, 144 F.3d at 1300.
The Court finds that Petitioner's argument that he received ineffective assistance of counsel for trial counsel's alleged failure to adequately raise objections to the enhancement is a potential exception to an enforceable waiver. Elliot, 264 F.3d at 1173. The Court will proceed with its analysis of Petitioner's claims only as they relate to ineffective assistance of counsel.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The Tenth Circuit has ruled that, under some circumstances, a claim of ineffective assistance of counsel brought in the context of a § 2255 Motion may survive a valid collateral appeal waiver. "[A] claim of ineffective assistance of counsel in connection with the negotiation of a [plea] agreement cannot be barred by the agreement itself." Cockerham, 237 F.3d at 1184 (quotingJones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998)) (emphasis added). See Jones, 167 F.3d at 1145 ("the right to mount a collateral attack pursuant to § 2255 survives [a waiver] only with respect to those discrete [ineffective assistance] claims which relate directly to the negotiation of the waiver." (emphasis added)).
The Cockerham court identified two critical components that must exist for a § 2255 ineffective assistance of counsel claim to survive a valid waiver. "The first is whether there is any basis for a claim of ineffective assistance of counsel, and the second is whether that ineffectiveness claim pertains to the validity of the plea." Id. at 1187. The Tenth Circuit further held that "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 the waiver." Id. In United States v. Clingman, the Tenth Circuit has provided further direction:
To prevail on his ineffective assistance claim, [Petitioner] must show that he was prejudiced by his trial counsel's allegedly deficient performance. In the context of a guilty plea, this requires [Petitioner] to show that counsel's deficient performance "affected the outcome of the plea process" and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."288 F.3d 1183, 1186 (10th Cir. 2002) (emphasis in original).
In this case, Petitioner has raised issues surrounding the Court's imposition of a six-level enhancement for a prior conviction of a crime of violence, and the resulting guideline range which was higher than he anticipated at the time of his plea of guilty. However, only claims that "challeng[e] the validity of the plea or the waiver" itself may survive collateral appeal waiver. Id. "Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." Id.
The Court finds that Petitioner's ineffective assistance arguments do not pertain to the validity of the plea or waiver. Petitioner's arguments relate to alleged failures by trial counsel to sufficiently raise objections, or lack of permission granted by Petitioner for trial counsel to retract those objections. While Petitioner claims that his resulting guideline range is higher than he initially expected, that fact alone does not render the guilty plea invalid. The written plea agreement states that Petitioner understood this: "I understand that the Court can make no decision as to what the sentence will be until the Presentence Report has been received and reviewed by the Judge. I further understand that the Court is not obligated in any way to follow the recommendation of the Government concerning sentencing matters. If the Court does not follow the Government's recommendation, I know that I will not be allowed to withdraw my plea of guilty." Plea agreement at 6. Further, at the change of plea hearing, the Court advised Petitioner: "Do you understand that the Court will not be able to determine the guideline range that will apply to you until after a presentence report has been completed by the probation office . . .?" Petitioner responded, "Yes, sir." Tr. at 15.
No claims made by Petitioner assert that the appeal waiver or the plea itself was anything other than knowing and voluntary, nor is it argued that the alleged ineffective assistance of counsel "pertains to the validity of the plea." Rather, Petitioner's arguments center on issues as they relate to sentencing. "[G]arden variety attacks" on sentencing raised in the guise of a claim of ineffective assistance of counsel are just the type of issues Petitioner may effectively waive.Cockerham, 237 F.3d at 1185. As these allegations do not touch on the plea or the waiver, the Court finds that they were waived by the valid collateral appeal waiver, and Petitioner is barred from raising them here.
As the Court has found that Petitioner has effectively and enforceably waived his right to appeal all of the issues raised in his § 2255 Motion, the Court will not engage in the traditional Strickland analysis, nor will it address the remaining sentencing issue. However, the Court would note that it does not believe that trial counsel was ineffective, or that Petitioner was prejudiced by trial counsel's performance.
CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner's § 2255 Motion is DENIED; It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required.
The Clerk of Court is directed to close this case forthwith.
SO ORDERED.