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United States v. Park

United States District Court, D. Kansas

October 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
PETER PARK, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, United States District Judge

         This matter is before the Court on defendant's pro se Motion To Vacate Under 28 U.S.C. § 2255 (Doc. #2362) filed October 24, 2016. On December 30, 2016, the United States filed its response to defendant's motion. Response To Motion (Doc. #2380). For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.

         Factual Background

         On October 31, 2012, a grand jury returned an indictment which charged Peter Park and 42 other defendants with conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine; to manufacture, to possess with intent to distribute and to distribute 1000 kilograms or more of marijuana and to maintain a drug-involved premises in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii), 846 and 856. See Sealed Superseding Indictment (Doc. #462), Count 1. The indictment also charged defendant with possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). See id., Count 101. On March 6, 2013, defendant pled guilty to Counts 1 and 101. See Plea Agreement (Doc. #882). On November 17, 2015, the Court sentenced defendant to 90 months in prison. See Minute Entry (Doc. #2206); see also Transcript Of Sentencing (Doc. #2240) filed December 12, 2015. Daniel Ross represented defendant throughout the proceedings.

         On October 24, 2016, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Doc. #2362. Liberally construed, [1] defendant asserts 21 claims. Claims one through five and eight through 15 assert that Ross provided ineffective assistance. Specifically, defendant claims ineffective assistance because Ross did not explain the proffer agreement to defendant (Claim 1); he did not follow through with government counsel on an oral agreement to replace the Section 924(c) conviction with a two-level sentence enhancement (Claim 2); he did not object to the proffer agreement as a coerced confession (Claim 3); he did not object to the conviction and sentence as a violation of defendant's right against self-incrimination (Claim 4); he did not protect defendant's speedy trial rights (Claim 5); he withdrew defendant's appeal (Claim 8); he did not secure defendant's release on bond (Claim 9); he coerced defendant to sign the plea agreement (Claim 10); he did not object to evidence unlawfully obtained from defendant's parents' house (Claim 11); he did not effectively challenge the four-level leader enhancement under U.S.S.G. § 3B1.1(a) (Claim 12); he allowed the prosecution to amend the plea agreement to increase the forfeiture amount (Claim 13); he did not ensure that the Court sentenced defendant when Assistant United States Attorney (AUSA) Mike Warner was lead prosecutor (Claim 14) and he advised defendant to plead guilty before he completed discovery (Claim 15).

         In claims five, six and 16, defendant asserts prosecutorial misconduct. Specifically, defendant claims that the government violated the plea agreement (Claim 6), engaged in selective prosecution (Claim 7) and failed to follow through on a binding contract (Claim 16). Additionally, defendant asserts that the Court erred because it did not hold the government to its oral agreement to withdraw the Section 924(c) conviction in exchange for a two-level enhancement (Claim 17); it convicted and sentenced defendant based, in part, on statements obtained in violation of his right against self-incrimination (Claim 18); it delayed defendant's sentencing in violation of his speedy trial rights (Claim 19); it accepted defendant's plea of guilty (Claim 20) and it allowed the government to use unlawfully obtained evidence from defendant's parent's house (Claim 21). Doc. #2362 at 1-16; see also Reply To Response To Motion (Doc. #2384) filed January 27, 2017 at 1-8.

         Analysis

         The Court applies a stringent standard of review when analyzing Section 2255 petitions. 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).

         I. Waiver Of Collateral Challenges (Claims 17-21)

         Courts generally enforce a knowing and voluntary waiver of the statutory right to appeal or to collaterally attack a sentence. 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); 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. The Court determines whether: (1) the disputed issue falls within the scope of the waiver; (2) the defendant knowingly and voluntarily waived his rights and (3) enforcement of the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). The government asserts that petitioner waived his right to bring a Section 2255 petition and asks the Court to enforce the plea agreement. Doc. #2380 at 4-5.

         A. Scope Of Waiver

         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 in accordance with what a defendant would reasonably understand 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:

14. Waiver of Appeal and Collateral Attack. 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, 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 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 under Fed. Rule of Civ. Pro. 60(b). In other words, the defendant waives the right to appeal the sentence imposed except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence as authorized by Title 18, U.S.C. § 3742(a). Notwithstanding the forgoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct.

Doc. #882, ¶ 14. The plea waiver unambiguously includes the right to collaterally attack by Section 2255 petition any matter in connection with defendant's prosecution, conviction or sentence.

         The plea agreement explicitly states that petitioner does not waive subsequent claims of ineffective assistance of counsel and prosecutorial misconduct. See Doc. #882, ¶ 14. Thus, as to claims one through 16, the Court overrules the government's request to enforce the waiver of collateral attacks. Claims 17 through 21, however, assert judicial error. The waiver encompasses defendant's claims of judicial error.

         B. Knowing And Voluntary Nature Of The Waiver

         To ascertain whether defendant knowingly and voluntarily waived his rights, the Court evaluates the language of the plea agreement, plea petition and the Rule 11 colloquy. Hahn, 359 F.3d at 1325. The Court conducted a thorough inquiry at the plea hearing. At that time, defendant affirmed that he understood the charges against him, the maximum prison term of life, the rights which he was waiving and the factual basis for his plea. Defendant acknowledged that he understood the waiver of appeal and collateral challenges, that his plea was free and voluntary, that no one had forced or threatened him to enter it and that he was making a plea because he was in fact guilty as charged. Nothing in the record suggests that defendant unknowingly or involuntarily entered into the plea agreement or waived his post-conviction rights. In sum, the language of the plea agreement and the Rule 11 colloquy establish that defendant knowingly and voluntarily waived his rights.

         C. Miscarriage Of Justice

         The Court must “determine whether enforcing the waiver will result in a miscarriage of justice.” Hahn, 359 F.3d at 1327. This test is not met unless (1) the district court relied on an impermissible factor such as race; (2) defendant received ineffective assistance of counsel in conjunction with negotiation of the waiver; (3) the sentence exceeds the statutory maximum or (4) the waiver is otherwise unlawful because it suffers from an error that seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. Defendant bears the burden of demonstrating that the waiver results in a miscarriage of justice. Anderson, 374 F.3d at 959.

         Defendant does not argue that any of these factors are present in this case, and the Court finds that enforcement of the waiver does not implicate any of the four factors listed above. Defendant received a sentence of 90 months in prison, which is less than the minimum for his applicable guideline range and well below the statutory maximum of life in prison. Judgment (Doc. #2207) filed November 19, 2015; Presentence Investigation Report (Doc. #2058) filed September 29, 2015 at 80; see United States v. Green, 405 F.3d 1180, 1193-94 (10th Cir. 2005); United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (“statutory maximum” under Hahn refers to statute of conviction). Further, enforcement of the waiver as to collateral challenges does not seriously affect the fairness, integrity or public reputation of the proceedings. See United States v. Maldonado, 410 F.3d 1231, 1233-34 (10th Cir. 2005) ...


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