Opinion
Case No. 2:04 CV 398 TC
June 1, 2004
ORDER
On May 3, 2004, Mr. Fredrico Garcia-Sanchez filed a petition pursuant to 28 U.S.C. § 2255(Dkt. # 1). Mr. Garcia-Sanchez plead guilty to distribution of a controlled substance in violation of 21 U.S.C. § 841 (a)(1). On March 20, 2003, the court sentenced him to 100 months imprisonment and 60 months supervised release. (Case No. 2:02-Cr-00228-001DKW, Dkt. # 28. On April 26, 2003, the court entered an Amended Order of Judgment and Conviction, (Id Dkt. #30). As grounds for his motion, Mr. Garcia-Sanchez argues that he believed that his attorney would file an appeal of his sentence, but the attorney did not.
Mr. Garcia-Sanchez' § 2255 Motion must be denied because he has 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, voluntarily and expressly waive any right 1 might have to challenge my sentence or the manner in which it is determined in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255.
(Statement of Def. in Advance of Plea of Guilty (Dkt # 30 at ¶ 8(c).) His waiver is valid because the evidence shows that it was entered voluntarily, knowingly and intelligently. Mr. Garcia-Sanchez is not attacking the validity of his plea agreement, the proceedings leading up to entry of his guilty plea, or the waiver in his Statement in Advance of Plea of Guilty. 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.