United States District Court, D. Kansas, Kansas City Division.
MEMORANDUM AND ORDER
CARLOS MURGUIA UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant Connie Edwards’s Motion to Obtain Relief of a Newly Recognized Right of Alleyne by the United States Supreme Court (Doc. 373). Defendant in this case was charged in a Third Superseding Indictment with one count of conspiracy to distribute and possess with intent to distribute oxycododne, hydrocodone, methadone, morphine, and methamphetamine, with death and serious bodily injury resulting; one count of distributing hydrocodone, methadone, and carisoprodol with death and serious bodily injury resulting; two counts of distribution of oxycodone; three counts of maintaining a drug-involved premises; one count of possession with intent to distribute oxycodone; conspiracy to commit money laundering; one count of possession of a firearm in furtherance of drug trafficking; and conspiracy to intimidate a federal witness. (Doc. 159.)
On November 21, 2012, defendant submitted a petition to enter a guilty plea, (Doc. 206), entered into a plea agreement, (Doc. 207), and pleaded guilty in open court to Count I of the Third Superseding Indictment, (Doc. 410-2). The defendant’s plea was entered pursuant to a Rule 11(c)(1)(C) agreement. On March 4, 2013, the court accepted the plea agreement and sentenced defendant to 300 months’ imprisonment, a five-year term of supervised release, no fine, a $632, 930 forfeiture judgment, and a $100 special assessment fee. Defendant did not file a direct appeal.
I. Alleyne and Burrage
The basis of defendant’s motion, including her ineffective assistance claims, is premised on her contention that she is entitled to relief under Alleyne v. United States, 133 S.Ct. 2151 (2013) and Burrage v. United States, 134 S.Ct. 881 (2014). In Alleyne, the Supreme Court ruled that under the Sixth Amendment, any fact increasing mandatory minimum sentence is an element of the offense that must be submitted to jury. Id. at 2155. However, Alleyne does not afford defendant any relief because Alleyne has not been made retroactive to cases on collateral review. United States v. Miller, 561 F. App’x 701, 703 (10th Cir. 2014) (citing In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013)); United States v. Castillo, No. 07-20100-04-JWL, 2013 WL 5954386, at *2 (D. Kan. Nov. 7, 2013) (“Even assuming the court found facts concerning the quantity of drugs attributable to Mr. Castillo, which it did not, Alleyne does not apply retroactively to cases on collateral review.”).
Also unpersuasive is defendant’s argument that she is entitled to relief under Burrage. In Burrage, the Supreme Court held that a defendant cannot be liable for the death-results enhancement provision unless the use of the drug supplied was a but-for cause of the death. 134 S.Ct. at 892. Defendant argues that she was not the but-for cause of the death of William Thomas Powell, an individual who overdosed on drugs sold to him by defendant during the conspiracy. Defendant claims that Burrage announced an intervening change in the law that renders her actually innocent of the death or serious bodily injury enhancement . However, several courts already have found that Burrage did not announce a new rule of constitutional law and that, even if it had, the Supreme Court did not make Burrage retroactively applicable. Stewart v. United States, No. 15-CV-73-JPS, 2015 WL 477226, at *2 (E.D. Wis. Feb. 5, 2015) (citing In re: Carlos Alvarez, No. 14–10661–D at 3 (11th Cir. Mar. 6, 2014) (petitioner not allowed to file second or successive § 2255 motion because the Supreme Court “did not expressly hold that Burrage is retroactive on collateral review.”); United States v. Bourlier, No. 3:14cv609, 2014 WL 6750674, at *2 (N.D. Fla. December 1, 2014); Alvarez v. Hastings, No. CV214-070, 2014 WL 4385703, at *1 (S.D. Ga. Sep. 5, 2014); De La Cruz v. Quintana, No. 14-28-KKC, 2014 WL 1883707, at *6 (E.D. Ky. May 1, 2014); Taylor v. Cross, No. 14-CV-304, 2014 WL 1256371 at, *3 (S.D. Ill. Mar. 26, 2014); Powell v. United States, No. 3:09-CV-2141, 2014 WL 5092762, at *2 (D. Conn. Oct. 10, 2014)); see also Minaya v. United States, 41 F.Supp. 3d 343, 345 (S.D.N.Y. 2014). The court finds Burrage is inapplicable to defendant’s case.
Further, even if Burrage were applicable, Burrage affords no relief because defendant claims that she is actually innocent-not of the underlying conspiracy offense-but of the resulting death or serious bodily injury enhancement. In other words, defendant claims she was not the but-for cause of the death of Mr. Powell. However, defendant’s claim of actual innocence in these circumstances is unpersuasive. See Darby v. United States, 508 F. App’x 69, 71 (2d Cir. 2013) (noting that a claim of actual innocence does not apply where defendant merely makes a legal argument that she is innocent of a sentence enhancement); Bousley v. United States, 523 U.S. 614, 623–24 (1998) (holding that a claim of actual innocence means factual innocence, not legal innocence). Defendant’s claim of innocence is not based on any new evidence showing she did not commit the crime to which she pled guilty, nor does defendant offer facts showing that death or serious bodily injury was not a foreseeable result of her heavy drug-trafficking activity. Neither Alleyne nor Burrage entitles defendant to relief from her sentence.
II. Waiver of Collateral Attack
The government argues that defendant has presented her claims under the pretense of ineffective assistance of counsel, but that defendant is really attacking the sentence she received. The court agrees and, for the reasons stated below, finds that defendant has waived any right to attack her sentence.
In this case, defendant signed a plea agreement that contains a waiver of appeal and collateral attack of her sentence. (Doc. 207 at 12, ¶ 9.) In general, a court will hold a defendant to the terms of a lawful plea agreement. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1207 (10th Cir. 2004); United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). A knowing and voluntary waiver of 28 U.S.C. § 2255 rights is enforceable. United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). The court applies a three-pronged analysis to evaluate the enforceability of such a waiver, determining: (1) whether the scope of the waiver covers the disputed issue; (2) whether the defendant knowingly and voluntarily waived his rights; and (3) whether enforcement of the waiver would result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).
A. Scope of Waiver
In determining whether a disputed issue is within the scope of the waiver, courts look to the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957–58 (10th Cir.2004). The court strictly construes the waiver and resolves any ambiguities against the government. Hahn, 359 F.3d at 1343. Defendant’s plea agreement at paragraph nine states:
The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, the defendant’s conviction, or the components of the sentence to be imposed herein including the length and conditions 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 a sentence imposed which is within the guideline range determined appropriate by the court. 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 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c)(2) and a motion ...