Opinion
Nos. 3:03-CR-0162-D(01), 3:04-CV-2228-D.
March 8, 2005
REPORT AND RECOMMENDATION
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of Reference dated January 27, 2005, the District Court referred "defendant's January 24, 2005 motion for reconsideration/original § 2255 motion" to the undersigned Magistrate Judge for hearing, if necessary, and for recommendation.
The January 24, 2005 filing is a "Memorandum in Support of Motion to Vacate and/or Reconsideration/Original § 2255 Motion." A "Motion to Vacate Judgment and Order Accepting Findings Recomm endation of the United States Magistrate Judge and/or Motion for Relief from Judgment under Rule 60(b) of Civil Procedure" was received by the Court on December 30, 2004. Because the January 24, 2005 memorandum clearly relates to the December 30, 2004 motion, and the Order of Reference refers all procedural motions that relate to the resolution of the motion (although prospectively), the undersigned interprets the Order of Reference as also including the underlying December 30, 2004 motion.
I. BACKGROUND
On November 18, 2004, the undersigned Magistrate Judge recommended that the Court summarily dismiss defendant's motion to vacate because he had expressly waived his right to file a § 2255 action, except in certain limited circumstances not applicable herein, in his written plea agreement with the government. On December 17, 2004, the Court accepted the findings and recommendation of the United States Magistrate Judge, and entered a judgment in this case dismissing the motion to vacate.
On December 30, 2004, the Court received a "Motion to Vacate Judgment and Order Accepting FindingsRecommendation of the United States Magistrate Judge and/or Motion for Relief from Judgment under Rule 60(b) of Civil Procedure." In that motion, Defendant argues that the Court dismissed his original motion to vacate without giving him an opportunity to object to the recommendation of the Magistrate Judge. He claims to have received no copy of the recommendation and asks that the Court provide him a copy of the recommendation so that he can object.
On January 24, 2005, the Court received defendant's "Memorandum in Support of his Motion to Vacate and/or Reconsideration/Original § 2255 Motion." Defendant therein reiterates that he did not receive a copy of the recommendation entered in this case. He speculates that the Court dismissed his original § 2255 motion because he based it on Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), rather than the subsequently decided Supreme Court case, United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). He specifically requests the Court to reconsider the dismissal of this action in light of Booker.
II. RULE 59(e)
Because defendant filed his "Motion to Vacate Judgment and Order Accepting Findings Recommendation of the United States Magistrate Judge and/or Motion for Relief from Judgment under Rule 60(b) of Civil Procedure" within ten days of the judgment that dismisses his § 2255 motion, the Court construes the motion as arising under Fed.R.Civ.P. 59(e). To prevail on a motion to alter or amend judgment under Rule 59(e), the moving party must show (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) a manifest error of law or fact. See Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003). Such a motion is "not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Although the Court has "considerable discretion" to grant or to deny a motion under Rule 59(e), courts use the "extraordinary remedy" under Rule 59(e) "sparingly." Id. at 479, 483. When considering a motion to alter or amend judgment, "[t]he court must strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts." Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).Although defendant timely filed his motion under Fed.R.Civ.P. 59(e), he is entitled to no relief under that rule. While he speculates that the Court dismissed his § 2255 motion because he raised claims under Blakely, rather than Booker, the Court dismissed his action solely because defendant had waived the right to bring the Blakely claim when he voluntarily entered his guilty plea and entered into the plea agreement in his criminal case. Booker does not constitute an intervening change of law that affected the outcome of his original § 2255 motion. Nor has defendant produced evidence that was not previously available to him.
Furthermore, the Court made no manifest error in law or fact by dismissing the original § 2255 on principles of waiver. The Court accepted the following findings, conclusions, and recommendation regarding summary dismissal of defendant's § 2255 motion:
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified." Generally, "an informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam), accord United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). Such waiver is also sufficient to summarily dismiss a motion filed pursuant to § 2255.
In this instance, movant voluntarily and knowingly pled guilty. By such plea, movant voluntarily waived his right to collaterally attack his conviction or sentence in a motion to vacate, except on grounds that his attorney rendered ineffective assistance. Although petitioner also reserved the right to appeal an upward departure from the applicable guidelines as determined and adopted by the Court, the Court did not upwardly depart from the applicable guidelines so as to permit any appeal on that basis. Thus, because movant has raised no claim of ineffective assistance of counsel, his informed and voluntary waiver bars collateral relief in this case. In view of movant's waiver, it is clear that he is entitled to no relief on his claim that the Court illegally sentenced him. Consequently, the Court should summarily dismiss this action.
Based on his knowing and voluntary waiver, the Court properly dismissed defendant's motion to vacate filed pursuant to § 2255.
In his memorandum in support of the Rule 59(e) motion, defendant expresses uncertainty as to the status of his case because he was allegedly deprived the right to object to the original recommendation by a failure to receive that recommendation. Defendant, however, has provided nothing to the Court to show that he did not receive the prior recommendation. Per customary court procedure, the recommendation would have been mailed on the date that it was entered on the docket (in this instance, November 18, 2004). Although prison logs from around that time period would show whether defendant received a mailing from the Court, defendant has provided no such logs to corroborate his lack of receipt. Nevertheless, defendant now has the opportunity to object to this report and recommendation.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY defendant's "Motion to Vacate Judgment and Order Accepting Findings Recommendation of the United States Magistrate Judge and/or Motion for Relief from Judgment under Rule 60(b) of Civil Procedure", which the Court has construed as a motion filed pursuant to Fed.R.Civ.P. 59(e).