United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, United States District Judge
case is before the court on defendant Nicholas Kamphaus's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. 58).
Defendant claims that the sentence enhancement based on use
of a firearm during and in relation to a crime of violence,
under 18 U.S.C. § 924(c), is unconstitutional in light
of Johnson v. United States, 135 S.Ct. 2551 (2015).
For the reasons set forth below, this court dismisses
March 15, 2010, defendant pleaded guilty, pursuant to Fed. R.
Crim. P. 11(c)(1)(C), to armed bank robbery in violation of
18 U.S.C. §§ 2113(a) and (d); attempted murder of a
witness, in violation of 18 U.S.C. §§ 1512(a)(1)(A)
and (a)(1)(C); and discharge of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c). On June 21,
2010, Judge Belot followed the parties' plea agreement
and sentenced defendant to a controlling term of 336 months.
Defendant did not appeal.
filed his § 2255 motion on June 29, 2016. Defendant
seeks collateral review approximately six years after his
conviction was final. He relies on a right that the United
States Supreme Court recognized in Johnson, which
was made retroactively applicable to cases on collateral
review in Welch v. United States, 136 S.Ct. 1257,
1265 (2016). See 28 U.S.C. § 2255(f)(3).
defendant's plea agreement, defendant waived the right to
challenge his sentence in a collateral attack under §
2255 (except as limited by United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), 18
U.S.C. § 3582(c)(2), and a motion brought under
Fed.R.Civ.P. 60(b)). The government seeks to enforce this
waiver as to defendant's claims challenging his sentence.
a knowing and voluntary waiver of 18 U.S.C. § 2255
rights is enforceable. United States v.
Frazier-LeFear, 665 F. App'x 727, 729 (10th Cir.
2016) (citing Cockerham, 237 F.3d at 1183). The
court, however, considers whether enforcing the waiver will
result in a “miscarriage of justice.”
Id. (citing United States v. Hahn, 359 F.3d
1315, 1327 (10th Cir. 2004)).
Tenth Circuit recently addressed whether a
Johnson-based sentencing challenge would entail a
miscarriage of justice, and ultimately held that it did not.
See Frazier-LeFear, 665 F. App'x at 731-32 (10th
Cir. 2016) (noting that the miscarriage of justice
“exception is implicated only when the asserted legal
error concerns the waiver itself, rather than some other
aspect of the proceedings such as the determination of the
defendant's sentence . . .”). Here, defendant
agreed to relinquish his right to collaterally attack any
sentence imposed in accordance with his Rule 11(c)(1)(C) plea
agreement, which includes any challenge under
Johnson. See Id. at 732 (“The fact
that [Ms. Frazier-LeFear's] relinquishment of this right
results in the lost opportunity to raise a constitutional
challenge under Johnson reflects the natural
operation, not the invalidity, of the waiver.”).
Johnson-based challenge to the use of armed bank
robbery or attempted murder of witness as a predicate crime
of violence under 18 U.S.C. § 924(c) is a challenge to
the lawfulness of his sentence, not to the lawfulness of his
waiver. As such, it does not support a finding that
enforcement of the waiver would result in a miscarriage of
justice. See Frazier-LeFear, 665 F. App'x at
732. Defendant entered into his collateral-challenge waiver
knowingly and voluntarily, and although the Supreme Court
changed the law in Johnson, this change did not
render defendant's waiver itself unlawful. Consequently,
the court enforces defendant's collateral-challenge
extent that defendant is arguing ineffective assistance of
counsel for not raising this issue previously;
Johnson is a recent change in the law. Defendant
cannot demonstrate that defense counsel's performance was
deficient based on a case that had not yet been decided at
the time defendant was sentenced. See United States v.
Taylor, 415 F. App'x 96, 99 (10th Cir. 2011)
(stating that the Sixth Amendment's right to effective
assistance of counsel does not require counsel to predict
future changes in the law) (citing United States v.
Harms, 371 F.3d 1208, 1212 (10th Cir. 2004)).
without the wavier, defendant would be ineligible for relief.
Johnson did not clearly invalidate §
924(c)'s residual clause. Instead, Johnson held
that the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.
See Johnson, 135 S.Ct. at 2563. Furthermore,
defendant was sentenced in accordance with his Rule
11(c)(1)(C) plea agreement, and defendant's § 2255
motion is untimely.
defendant is not entitled to relief, the court denies his
requests for appointment of counsel and an evidentiary
hearing. An evidentiary hearing is generally not required
when “the motion and files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255. The existing record is
sufficient for this court to resolve defendant's claims.
certificate of appealability is not warranted in this case
because reasonable jurists could not debate whether
“the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed ...