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United States v. Henry

United States District Court, D. Kansas

December 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES Z. HENRY, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.

         On September 29, 2009, the Court sentenced defendant to 262 months in prison. On September 14, 2015, the Court overruled defendant's Motion Pursuant To Rule 60(b)(6) (Doc. #91) filed November 10, 2014, which the Court construed as defendant's initial motion under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #92) at 2. On February 26, 2016, the Court sustained defendant's Motion Pursuant To Rule 59(e) (Doc. #97) filed October 23, 2015, reinstated defendant's Motion Pursuant To Rule 60(b)(6) (Doc. #91) so he could assert a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), and appointed the Office of the Federal Public Defender to represent him. See Memorandum And Order (Doc. #106). This matter is now before the Court on defendant's reinstated Motion Pursuant To Rule 60(b)(6) (Doc. #91), which the Court construes as an initial motion under 28 U.S.C. § 2255, and the Government's Motion To Dismiss (Doc. #129) filed March 24, 2017.[1] For reasons stated below, the Court overrules defendant's Section 2255 motion and denies a certificate of appealability.

         Factual And Procedural Background

         On February 1, 2007, the grand jury returned an indictment which charged defendant with conspiracy to possess with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) (Count 1), three counts of distribution of five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Counts 2-4) and one count of distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 6). Sealed Indictment (Doc. #1-1). On May 5, 2008, defendant pled guilty the conspiracy charged in Count 1. Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #50). Bruce R. Kips represented defendant when he entered into the plea agreement and through sentencing.

         The Presentence Investigation Report (“PSIR”) (Doc. #81) found that defendant qualified as a career offender based, in part, on a prior criminal threat conviction under K.S.A. § 21-3419. PSIR ¶ 53; see U.S.S.G. § 4B1.1. That designation raised defendant's criminal history to category VI, with a dramatic increase in the guideline range. Id., ¶ 73. The PSIR calculated defendant's offense level as 35 and guideline range as 292 to 364 months in prison.[2] I d ., ¶ 103. The government asked for an additional reduction for acceptance of responsibility, which lowered the guideline range to 262 to 327 months.

         On September 29, 2009, the Court sentenced defendant to 262 months in prison. Judgment In A Criminal Case (Doc. #84). Defendant did not appeal. On September 29, 2010, defendant filed a Motion For Withdrawal Of Guilty Plea (Doc. #88) in which he alleged that counsel was ineffective because he incorrectly informed defendant that his maximum sentence would be 135 months and failed to investigate defendant's mental problems as a possible mitigating factor. Id. He also asserted that his plea was not knowing and voluntary because he relied on counsel's incorrect information as to the likely sentence. Id. On January 14, 2011, the Court overruled defendant's motion to withdraw his plea, which it construed as a motion under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #90).

         On November 10, 2014, defendant filed a Motion Pursuant To Rule 60(b)(6) (Doc. #91). In this motion, among other things, defendant asserted ineffective assistance because counsel failed to adequately explain the impact of his prior criminal threat conviction and did not effectively object to the career offender enhancement. See id. at 16-24, 26-27. The Court construed this motion as defendant's initial motion under 28 U.S.C. § 2255 because it had not advised defendant that his motion to withdraw his plea would be construed as a Section 2255 motion. See Memorandum And Order (Doc. #92) filed April 27, 2015 at 2. The Court overruled defendant's motion because it was untimely and he failed to establish ineffective assistance for failure to object to the career offender enhancement. Memorandum And Order (Doc. #96) at 4-11.

         On October 23, 2015, defendant asked the Court to reconsider its ruling because it did not address his claim under Johnson v. United States, 135 S.Ct. 2441 (2015). Motion Pursuant To Rule 59(e) (Doc. #97) at 1. In light of defendant's pro se status, the Court sustained defendant's request to reconsider his motion “to the extent that it asserts that under Johnson . . . [the Court] erred in enhancing his sentence under the residual clause of the career offender enhancement, ” and also appointed counsel. Memorandum And Order (Doc. #106) at 3-5. Subsequently, the Court stayed proceedings until the Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017), where the Court addressed the primary issue raised in defendant's Section 2255 motion. Order (Doc. #127) filed July 18, 2016. Following the stay, the government moved to dismiss defendant's Section 2255 motion because Beckles precluded defendant's Johnson claim. See generally Government's Motion To Dismiss (Doc. #129).

         On April 28, 2017, defendant filed his Motion For Relief (Doc. #135) through appointed counsel. Defendant seeks relief because counsel's ineffective assistance resulted in the Court erroneously sentencing him as a career offender. Id. at 2, 4, 7 (claiming deficient performance for failing to effectively object to career offender status). Further, defendant concedes that his claim under Johnson “has been extinguished” by Beckles. Id. at 1 n.1.[3]

         Analysis

         The government asserts that petitioner waived his right to bring a Section 2255 petition and asks the Court to enforce the waiver in his plea agreement. See Government's Supplemental Response To Defendant's Motion Pursuant To Fed.R.Civ.P. 59(e), 60(b), And Pleadings In Support, To Vacate Sentence (Docs. 91, 97, 110, 124, and 135) (Doc. #140) filed May 26, 2017 at 6-10.

         I. Waiver Of Collateral Challenges

         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) 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).

         A. Sc ...


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