United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, United States District Judge
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.
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.
October 24, 2016, defendant filed a pro se motion to vacate
his sentence under 28 U.S.C. § 2255. Doc. #2362.
Liberally construed,  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
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
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).
Waiver Of Collateral Challenges (Claims 17-21)
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.
Scope Of Waiver
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.
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.
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.
Knowing And Voluntary Nature Of The Waiver
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.
Miscarriage Of Justice
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.
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)