United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
case is before the court on defendant Nicholas Henry's
Motion for Appointment of Counsel to assist him in filing a
petition in light of Johnson v. United States, 135
S.Ct. 2551 (2015). (Doc. 61.) The government filed a response
and construed defendant's motion as a motion to vacate
sentence pursuant to 28 U.S.C. § 2255. (Doc. 66.) This
court construes defendant's motion as one filed under
§ 2255, and for the reasons set forth below, dismisses
March 15, 2011, defendant pleaded guilty, pursuant to Fed. R.
Crim. P. 11(c)(1)(C), to attempted murder of an officer of
the United States in performance of the officer's duties,
in violation of 18 U.S.C. §§ 1113 and 1114, and
possession and discharge of a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(iii) . As an appropriate disposition, the
parties recommended that the court sentence defendant to a
controlling term of 240 months. On June 27, 2011, the court
accepted the recommendation and sentenced defendant in
accordance with the plea agreement, which was a variance from
the otherwise applicable guideline range of 324 to 405
months. Defendant did not appeal his conviction or sentence.
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 result in 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 his sentence 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 waiver.
without the wavier, defendant would be ineligible for relief.
Defendant was sentenced in accordance with his Rule
11(c)(1)(C) plea agreement. See United States v.
Hernandez, No. 10-20055-01-JWL, 2016 WL 4541446, at *1
(D. Kan. Aug. 31, 2016) (denying Johnson based claim
because the defendant “was sentenced pursuant to the
parties' Rule 11(c)(1)(C) agreement, which expressly
disavowed reliance on the Guidelines and provided for a lower
sentence than the range . . . calculated in the Presentence
Investigation Report”). Furthermore, defendant's
motion was filed approximately five years after judgment was
entered and is untimely. See 28 U.S.C. §
2255(f). 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.
defendant is not entitled to relief, the court denies his
request for appointment of counsel.
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 further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation
THEREFORE ORDERED that defendant Nicholas Henry's Motion
for Appointment of Counsel (Doc. 61), which the court
construes as a motion ...