U.S.A v. Rivers
| Decision Date | 07 February 2011 |
| Docket Number | CIVIL ACTION No. 10-2343-KHV,CRIMINAL ACTION No. 08-20006-01-KHV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER L. RIVERS, Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #58) filed June 21, 2010. For reasons set forth below, the Court overrules defendant's motion.
On February 1, 2008, a grand jury returned an indictment which charged defendant with possession with intent to distribute five grams or more of a mixture or substance containing crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). See Sealed Indictment (Doc. #1). On January 27, 2009, the government filed a notice of defendant's prior conviction in 1996 for possession of cocaine. See Enhancement Information (Doc. #38). Because of the prior drug conviction, defendant faced a statutory minimum of ten years. See 21 U.S.C. § 841(b)(1)(B)(iii).
On January 12, 2009, defendant filed a motion to suppress evidence which officers discovered after a vehicle stop. In particular, defendant maintained that offers lacked reasonable suspicion to pull over his vehicle. On February 13, 2009, Magistrate Judge James P. O'Hara held a hearing on defendant's motion. On February 18, 2009, Judge O'Hara recommended that the district court overrule defendant's motion. See Report And Recommendation (Doc. #47). Judge O'Hara noted that officers knew that defendant had a suspended driver's license and that one officer had positively identified defendant when he drove by the officer who was parked in his patrol car. See id. at 9-10. At the hearing before the magistrate judge, defendant presented a video re-enactment to show that the officer could not have positively identified defendant when he drove by the officer. Judge O'Hara noted that the video was "sloppily done and decidedly unpersuasive." Id. at 9. On February 23, 2009, defendant filed written objections to the magistrate judge's report. In particular, defendant asserted that despite the poor quality of the video re-enactment, the magistrate judge did not consider that the investigator attempted the re-enactment on two occasions and that both times, he could not discern the identity of the individual in the passenger seat of a passing SUV. See Written Objection To The Report And Recommendation To Deny Defendant's Motion To Suppress Evidence (Doc. #49) filed February 23, 2009 at 2.
On February 26, 2009, pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P., defendant pled guilty. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #51). The agreement proposed a sentence of 120 months in prison, eight years of supervised release and waived defendant's right to appeal or collaterally attack any matter in connection with his "prosecution, conviction and sentence." Plea Agreement Pursuant To Fed. R. Crim. P. 11(c)(1)(C) ¶ 9, attached to Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #51). On June 5, 2009, the Court sentenced defendant to 120 months in prison and eight years of supervised release.1 Defendant was represented by Debra A. Vermillion.
Defendant did not appeal, but on June 21, 2010, he filed this motion under 28 U.S.C. § 2255.
Liberally construed and as supplemented by his reply, defendant's motion asserts that his conviction should be vacated because counsel was ineffective in that (1) she assured defendant that if the law changed pertaining to sentences for crack cocaine offenses, he would be entitled to relief under 18 U.S.C. § 3582(c)(2); (2) she did not tell defendant that by pleading guilty, he would waive his right to have the district judge review the magistrate judge's ruling on the motion to suppress, as well as any appeal of the district judge's ruling; (3) she did not provide effective assistance at the hearing on his motion to suppress; and (4) she did not file an appeal despite defendant's specific instructions to do so.
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
The government asserts that in the plea agreement, except for claims of ineffective assistance of counsel as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), defendant voluntarily waived his right to file a Section 2255 motion. See Government's Response To Defendant's Motion To Vacate Sentence Filed Pursuant To 28 U.S.C. § 2255 (Doc. #66) filed October 1, 2010 at 3-4.
A knowing and voluntary waiver of the statutory right to appeal or to collaterally attack a sentence is generally enforceable. United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003); United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998). The Court applies a three-pronged analysis to evaluate the enforceability of such a waiver: (1) whether the disputed issue falls within the scope of the waiver; (2) whether defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).
To determine whether the disputed issue falls within the scope of the waiver, the Court begins with the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004); Hahn, 359 F.3d at 1328. The Court construes the plea agreement according to contract principles and based on what defendant reasonably understood when he entered the plea. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir. 2004). The Court strictly construes the waiver and resolves any ambiguities against the government and in favor of defendant. Hahn, 359 F.3d at 1343.
The plea agreement states in relevant part as follows:
9. Waiver of Appeal and Collateral Attack. If the Court agrees to the proposed plea agreement, the defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence (including the length and conditions of supervised release, as well as any sentence imposed upon a revocation of supervised release). The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal if the Court imposes the sentence requested by the parties. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change his sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [], a motion brought under Title 18, U.S.C. § 3582(c)(2) and a motion under Fed. Rule of Civ. Pro 60(b). However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), then the defendant is released from this waiver and may appeal the sentence asauthorized by Title 18, U.S.C. § 3742(a).
Plea Agreement U 9. The scope of this waiver unambiguously includes the right to collaterally attack by a Section 2255 motion any matter in connection with defendant's prosecution, conviction or sentence. In Cockerham, the Tenth Circuit noted that "a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver, " but that "collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." 237 F.3d at 1187.
Here, defendant specifically waived his right to raise any collateral challenge in connection with his prosecution, conviction and sentence except as limited by Cockerham, i.e. except for claims challenging the validity of the plea or waiver. Because defendant's third and fourth claims (ineffective performance at the hearing on the motion to suppress and failure to file an appeal) do not challenge the validity of the plea or waiver, they fall within the scope of the waiver in the plea agreement. See id.
The Court recognizes that a waiver of appeal in the plea agreement does not bar a claim that counsel was ineffective for refusing to file an appeal despite her client's specific instructions to do so.2 See Petitioner's Reply To Government's Response (Doc. #69) filed December 6, 2010 at 7. On a motion to vacate sentence under Section 2255, however, the issue is whether such a claim canovercome a valid waiver of collateral challenges. Defendant cites no authority on this issue. As explained above, a valid waiver of collateral challenges in the plea agreement waives the right to bring a Section 2255 motion except for ineffective assistance claims which challenge the validity of the plea or the waiver. See Cockerham, 237 F.3d at 1187. Defendant's claim that counsel failed to file an appeal does not challenge the validity of the plea or waiver. See Plea Agreement ¶ 9; United States v. Macias, 229 Fed. Appx. 683, 687 (10th Cir. 2007) (); United States v. Davis, 218 Fed. Appx. 782, 784 (10th Cir. 2007)...
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