Opinion
Case No. C1-02-69, Docket Number: 50
January 16, 2004
ORDER SUMMARILY DISMISSING DEFENDANT'S SECTION 2255 MOTION
Summary: A defendant who had pled guilty to possessing with the intent to distribute 27.95 grams of cocaine base filed a motion for habeas corpus relief pursuant to 28 U.S.C. § 2255, asserting that (1) he received ineffective assistance from his counsel; (2) the Court erred in refusing to grant him a downward departure; and (3) the substance he possessed was powder cocaine and not cocaine base. The Court summarily dismissed the motion on grounds that the defendant, as part of his plea agreement, had expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence.
Before the Court is the defendant, Gerome Shell's motion filed pursuant to 28 U.S.C. § 2255. The motion is filed pro se. On November 11, 2002, Shell pled guilty to one count of possessing with the intent to distribute 27.95 grams of cocaine base. On February 6, 2003, Shell was sentenced to 70 months of imprisonment.
In his motion filed on January 12, 2004, Shell asserts that (1) he received ineffective assistance from his counsel; (2) the Court erred in refusing to grant him a downward departure; and (3) the substance he possessed was powder cocaine and not cocaine base.
The Court has reviewed the motion as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court finds that in his Plea Agreement with the Government (Docket No. 31, p. 6, ¶ 21), Shell expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence. Such a waiver is fully enforceable. See United States v. Andis, 333 F.3d 886 (8th Cir. 2003); United States v. His Law, 85 F.3d 379 (8th Cir. 1996). Accordingly, Shell's Section 2255 motion (Docket No. 49) is DISMISSED.
The Court certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such a appeal would be frivolous and cannot be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917 (1962). In addition, upon the entire record before the Court, dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). Therefore, a certificate of appealability will not be issued by this Court. IT IS SO ORDERED.
The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).