Butler v. U.S.

Decision Date19 November 2001
Docket NumberNo. 4:01CV96.,4:01CV96.
Citation173 F.Supp.2d 489
CourtU.S. District Court — Eastern District of Virginia
PartiesGregory Clyde BUTLER, Petitioner, v. UNITED STATES of America, Respondent.

Janet S. Reincke, Assistant United States Attorney, Norfolk, VA, for USA.

Gregory Clyde Butler, # 51916-083, FCI Cumberland, Cumberland, MD, Pro Se.

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on petitioner Gregory Clyde Butler's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, petitioner's Motion is DENIED.

I. Factual and Procedural History

On March 27, 2000, a federal grand jury sitting in Newport News, Virginia, issued a forty-nine count indictment against petitioner Gregory Clyde Butler and seven co-conspirators. Stephen John Weisbrod was appointed as defense counsel for petitioner on March 30, 2000, and petitioner was arraigned on April 3, 2000. On June 5, 2000, petitioner pled guilty to Count One of the pending indictment, pursuant to the terms of a written plea agreement. Count One charged petitioner with conspiracy to possess with the intent to distribute and to distribute fifty grams or more of cocaine base, commonly known as "crack" cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1)(A). On September 26, 2000, petitioner was sentenced to three-hundred-sixty (360) months imprisonment and five (5) years of supervised release. Petitioner waived his right to appeal any sentence within the maximum provided in the statute of conviction, and the right to challenge the conviction, or the sentence, or the manner in which it was determined in any collateral attack, including under 28 U.S.C. § 2255.

On September 24, 2001, petitioner moved this court to vacate, set aside, or correct his sentence, pursuant to § 2255. Petitioner alleges in this collateral challenge that: (1) his guilty plea was not knowing, intelligent, and voluntary and the court did not have jurisdiction to accept it because the indictment did not allege the drug amount attributed to him at sentencing; (2) his 360 month sentence violates the Supreme Court holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the drug amount for which he was sentenced was not proved beyond a reasonable doubt; and (3) petitioner's receipt of a two-level enhancement under the United States Sentencing Guidelines for possession of a firearm during the commission of a drug offense violates Apprendi because it was not proved beyond a reasonable doubt.1 The government filed a response to petitioner's motion on October 15, 2001, and the matter is now ripe for review.

II. Standard of Review

Petitioner proceeds under § 2255, which provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming ... that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the Court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving by a preponderance of the evidence that his sentence or conviction was imposed in violation of the United States Constitution or laws, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. See id.; Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958).

In deciding a § 2255 motion, the court is not required to hold a hearing if "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; see United States v. Yearwood, 863 F.2d 6, 7 (4th Cir.1988); United States v. Rowland, 848 F.Supp. 639, 641 (E.D.Va.1994).

III. Analysis

Petitioner knowingly and voluntarily waived the right to appeal, or to file a habeas corpus petition, pursuant to 28 U.S.C. § 2255, when he entered his guilty plea to Count One of the indictment. See Plea Agreement at 3, ¶ 4. The Fourth Circuit has not definitively ruled on the enforceability of § 2255 waivers. However, at least six federal circuit courts have enforced waivers of collateral attacks brought pursuant to § 2255 when the waiver was knowingly and voluntarily entered. United States v. Cockerham, 237 F.3d 1179, 1181-82 (10th Cir.2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.2000), cert. denied, 531 U.S. 1175, 121 S.Ct. 1148, 148 L.Ed.2d 1010 (2001); Watson v. United States, 165 F.3d 486, 488-489 (6th Cir. 1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993). In addition, in three circuits where the Courts of Appeals have not addressed the issue, district courts have upheld § 2255 waivers when knowingly and voluntarily given. See, e.g., United States v. Maldonado, 166 F.Supp.2d 1049, 1050-51 (E.D.Pa.2001); Luna v. United States, 1999 WL 767420, at *3 n. 1 (S.D.N.Y.1999) (citing multiple district court cases in the Second Circuit upholding § 2255 waivers); United States v. Holland, 1996 WL 208482, at *2 (D.Mass.1996).

In the cases where Courts of Appeals have upheld § 2255 waivers, they generally reason by analogy to waivers of direct appeal rights in plea agreements. Most recently, for example, the Tenth Circuit in Cockerham began its analysis by noting "it is well established that a defendant's waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily." 237 F.3d at 1181. The court recognized that direct appeal waivers are subject to certain exceptions, including where the agreement is involuntary or unknowing, the sentence exceeds the statutory maximum, or the defendant claims the agreement was entered with ineffective assistance of counsel. Id. The court then reasoned by analogy that since the right to bring a collateral attack under § 2255 and the right to bring a direct appeal are both statutory rights, both should be waivable, subject to the same exceptions. Id.; see also DeRoo, 223 F.3d at 923 ("As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context.").

In finding § 2255 waivers generally enforceable, courts have emphasized that even with a § 2255 waiver, a defendant retains the right to raise certain claims in a § 2255 motion. See, e.g., Wilkes, 20 F.3d at 652-53; United States v. Pruitt, 32 F.3d 431, 432-33 (9th Cir. 1994). Specifically, courts have held that even where a defendant has waived his statutory right to bring a § 2255 motion, he may nonetheless be entitled to raise two kinds of claims by way of a § 2255 motion: (1) claims of ineffective assistance of counsel, and (2) claims challenging the voluntariness of the guilty plea. Id. Although the Fourth Circuit has not addressed whether a § 2255 waiver in a plea agreement is generally enforceable, it has established that an express waiver of the right to appeal in a plea agreement is generally enforceable. A direct appeal waiver precludes any direct appeal unless the waiver is shown to be unknowing or involuntary, the sentence exceeds the statutory maximum penalty, the sentence is based on a constitutionally impermissible factor, or the defendant received ineffective assistance of counsel after entry of his guilty plea. United States v. Brown, 232 F.3d 399, 403 (4th Cir.2000); United States v. Attar, 38 F.3d 727, 732 (4th Cir.1994). In the Fourth Circuit, as long as a district court fully questions a defendant regarding his waiver of appellate rights during the Rule 11 colloquy, the waiver is presumptively valid. United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir.1991).

This Court sees no principled means of distinguishing the enforceability of a § 2255 waiver from the enforceability of a direct appeal waiver. The logic and reasoning that supports upholding direct appeal waivers is equally applicable to § 2255 waivers. In upholding a direct appeal waiver, the Fourth Circuit noted that "[i]f defendants can waive fundamental constitutional rights such as the right to counsel, or the right to a jury trial, surely they are not precluded from waiving procedural rights granted by statute." United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990) (quoting United States v. Clark, 865 F.2d 1433, 1437 (4th Cir.1989)). Collateral attack rights under § 2255 are also statutory rights. Furthermore, direct appeal waivers are enforceable because they are designed to preserve the finality of judgments and sentences imposed pursuant to guilty pleas. Wiggins, 905 F.2d at 53. Enforcing § 2255 waivers serves a similar purpose. Finally, upholding a direct appeal waiver reinforces that when a defendant waives his right to appeal for the purpose of obtaining certain concessions from the Government, he cannot later ignore his part of the bargain. Id. at 54. Upholding § 2255 waivers accomplishes the same goal.

The reasoning behind enforcing direct appeal waivers mandates that the § 2255 waiver be upheld and enforced. The Fourth Circuit has clearly indicated the validity of direct appeal waivers, and it has not questioned the validity of § 2255 waivers that have come before it. See, e.g., United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.1994) (interpreting a waiver in a plea agreement as waiving the defendant's rights to launch a collateral attack under § 2255 on any grounds other than ineffective assistance of counsel); cf. Hailstock v. United States, 2001 WL 1131989, at *2 (S.D.N.Y.2001) (upholding a §...

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