Opinion
Nos. 3:02-CR-0155-G(02), 3:05-CV-0034-G.
March 2, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255.
B. Parties : Movant is currently incarcerated in the federal prison system. The respondent is the United States of America (government).
C. Procedural History : On July 30, 2002, movant pled guilty to bank larceny and conspiracy to commit bank fraud. In his plea agreement, he "waive[d] the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and the defendant further agree[d] not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255." He specifically reserved the right to appeal: "a) any punishment imposed in excess of a statutory maximum, b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court and c) arithmetic errors in the guidelines calculations and d) a claim of ineffective assistance of counsel." On October 10, 2002, the Court entered judgment upon movant's guilty plea, and sentenced him to sixty months imprisonment. He did not appeal his conviction or sentence.
On January 4, 2005, the Court received the instant motion filed pursuant to 28 U.S.C. § 2255. He therein raises the following claims: (A) whether Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004) applies to his case retroactively; (B) whether Blakely extends to the federal sentencing guidelines; and (C) whether movant should be re-sentenced under Blakely. On February 9, 2005, the Court received a "Motion for Bail and Expedited Hearing" in which movant asserts that he is likely to succeed on his claims.
II. SUMMARY DISMISSAL
As amended effective December 1, 2004, Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." 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. 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 Blakely claims. Consequently, the Court should summarily dismiss this action.
Although petitioner also reserved the right to appeal an imposed sentence in excess of a statutory maximum, an upward departure from the applicable guidelines as determined and adopted by the Court, and arithmetic errors in the sentence calculations, such reserved appellate issues are not raised in the instant motion to vacate.
III. EVIDENTIARY HEARING
Upon review of the motion to vacate and the files and records of this case, an evidentiary hearing appears unnecessary. No evidentiary hearing is required, when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. In this instance, the matters reviewed by the Court conclusively show that movant is entitled to no relief.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court summarily DISMISS the instant Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255, and DENY the Motion for Bail and Expedited Hearing.