Breeze v. United States
| Decision Date | 24 January 2013 |
| Docket Number | No. 2:11-CV-337,No. 2:03-CR-06,2:03-CR-06,2:11-CV-337 |
| Parties | JONATHAN BREEZE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
Petitioner Jonathan Breeze ("petitioner" or "Breeze") has filed a motion to vacate pursuant to 28 U.S.C. § 2255, [Doc. 117]. The government has responded in opposition, [Doc. 126], and petitioner has replied, [Doc. 128]. The Court heard oral argument on June 28, 2012. Petitioner has also filed an "Expedited Motion To Reduce Sentence Pursuant To 18 U.S.C. § 3582(c)," [Doc. 119], and the government has likewise responded in opposition, [Doc. 127]. For the reasons which follow, the motions, [Docs. 117, 119], will be DENIED.
On January 28, 2003, the federal grand jury returned a one-count indictment against Breeze and Dwayne Norton charging them with conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base (crack) in violation of 21 U.S.C. § § 846 841(a)(1), [Doc. 1]. On December 22, 2003, the United States filed an information pursuant to 21 U.S.C. § 851(a)(1) giving notice of the government's intent to seek enhanced punishment against Breeze because of two prior felony drug offenses, i.e., felony possession with intent to sell and deliver cocaine on January 13, 1999 (Case No. 98CRS029752, Alamance County Superior Court, Graham, North Carolina) and felony possession of cocaine on December 31, 2001 (Case No. 00CRS060030, Alamance County SuperiorCourt, Graham, North Carolina), [Doc. 34]. On February 9, 2004, Breeze entered a plea of guilty pursuant to a negotiated plea agreement, [Doc. 51]. In the plea agreement, Breeze stipulated to the two prior "felony" drug offenses, agreed that he was subject to a mandatory minimum term of life imprisonment, and agreed to waive his right "to file any post-conviction motions or pleadings pursuant to [28 U.S.C. §] 2255" except "upon grounds of ineffective assistance of counsel and prosecutorial misconduct not known to [petitioner] at the time of [his] guilty plea," [Id., at 9-10].
A presentence investigation report was prepared. Using the 2003 version of the United States Sentencing Commission Guidelines Manual, the probation officer calculated a base offense level of 36 based on petitioner's stipulation that he was responsible for conspiring to distribute 39.5 ounces of crack (at least 500 grams but less than 1.5 kilograms). He was deemed a career offender pursuant to USSG § 4B1.1 and his base offense level was increased to 37.1 After a three level reduction for acceptance of responsibility, his offense level and criminal history category of VI resulted in a guidelines range of 262-327 months imprisonment. Because he was subject to a mandatory minimum life sentence, however, the guidelines range was mandatory life imprisonment.
The government filed a motion for downward departure pursuant to 18 U.S.C. § 3553(e) based on petitioner's substantial assistance, [Doc. 82]. On June 30, 2005, the Court granted the motion for downward departure and sentenced Breeze to 180 months of imprisonment. Judgment was entered on June 30, 2005, [Doc. 94]. Petitioner appealed the sentence and the Sixth Circuit affirmed on June 5, 2007, [Doc. 108]. Petitioner did not seek a writ of certiorari from the Supreme Court and his conviction became final on September 3, 2007, the expiration of the time for seeking the writ. The instant motion to vacate was filed more than four years later on November 13, 2011.
Breeze's pro se motion raises two grounds for relief under § 2255: (1) United States v. Rodriquez, 553 U.S. 377 (2008), United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008), Carachuri-Rosendo v. Holder, --- U.S. ---, 130 S.Ct. 2577 (2010), United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011), and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), petitioner argues he is no longer subject to the mandatory life sentence or career offender enhancement under the Guidelines because his prior North Carolina offenses are not felonies which carry a maximum sentence of more than 12 months, and (2) petitioner argues he is eligible for resentencing under retroactive reduced guidelines ranges applicable to crack cocaine offenses.
The government responds in opposition to petitioner's motion, arguing that his claims are waived and, in any event, untimely. More specifically, the government relies on the explicit waiver of petitioner's right to file any pleading under § 2255 since his challenge here does not rest on any allegation of ineffective assistance of counsel or prosecutorial misconduct. Even if the right to file the instant motion is not waived, the government argues, it is untimely under the statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(f).
Breeze replies, through counsel, that his motion is timely under § 2255(f)(4)2 because "[t]he facts supporting Breeze's claim became discoverable for the purposes of challenging his conviction under § 2255 on the date that the Fourth Circuit decided Simmons favorably-August 17, 2011"; petitioner's actual innocence overcomes any finding of untimeliness; equitable tolling should apply if § 2255(f)(4) does not; the collateral review waiver in the plea agreement does not preclude the court from granting relief, because the waiver was not made voluntarily and, in any event, petitioner's claim falls outside the scopeof the waiver; and the court may refuse to honor the waiver if it would result in a miscarriage of justice.
To seek relief under § 2255, a prisoner "must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (citation omitted). A petitioner can be granted § 2255 relief on the basis of a constitutional error which had a substantial and injurious effect or influence on the proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994). However, a prisoner who is seeking to obtain collateral relief must clear a "significantly higher hurdle" than would exist on direct appeal. Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, a court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively a petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986). In this case, petitioner does not suggest that an evidentiary hearing is necessary and all parties appear to agree that the issue is a legal, not a factual, one. The Court therefore finds that an evidentiary hearing is unnecessary and that it can decide this motion on the record.
Breeze's plea agreement provides, in relevant part, that he "knowingly and voluntarily agrees to waive any rights he may have to file any post-conviction motions or pleadings pursuant to Title 28, United States Code, Section 2255," [Doc. 51 at 9]. The plea agreement limits the waiver in that it does not apply to petitioner's right to collaterally attack the conviction and sentence on grounds of ineffectiveassistance of counsel or prosecutorial misconduct not known to him at the time of his guilty plea, [Id. at 9-10].
It is well recognized that a party may waive a provision intended for his benefit in a contract or statute. Shutte v. Thompson, 82 U.S. 151, 21 L.Ed. 123, 15 Wall. 151 (1872). Even fundamental constitutional rights may be waived by an accused, so long as the waiver is knowingly and voluntarily made. Ricketts v. Adamson, 483 U.S. 1, 10 (1987) (double jeopardy defense); Boykin v. Alabama, 395 U.S. 238, 243 (1969) (); Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (right to counsel); United States v. McGilvery, 403 F.3d 361, 363 (6th Cir. 2005) (right to appeal); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999) (). It is well settled that a waiver of § 2255 claims is enforceable. Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001). Therefore, so long as Breeze understood the terms of the plea agreement and so long as it was made voluntarily and knowingly, the waiver is valid and enforceable.
Breeze makes only a perfunctory argument that he did not enter into the waiver knowingly and voluntarily. Indeed, a review of the transcript of the plea proceedings indicates why. Based on those proceedings, it is clear to the Court that Breeze understood the charges against him, that he understood that his sentence would be a mandatory life sentence, that he understood the plea agreement, including the waiver provision, that he understood the consequences of his guilty plea and that he entered his plea knowingly and voluntarily, [Doc. 102, chg. of plea hr'g Tr.). Indeed, the Court made a specific finding at the conclusion of those proceedings that petitioner's plea was knowingly and voluntarily made and he did not then, nor does he now, challenge that finding. Therefore, the waiver of § 2255 relief provision of the plea agreement is valid and enforceable and he has waived the right to raise all claims within thescope of the waiver.
Breeze does argue that his claims fall outside the scope of the waiver, even if it is valid. The government, on the other hand, argues that the claims fall squarely within the waiver provision in that petitioner does not premise his claims...
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