United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
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. For reasons stated below, the Court
overrules defendant's Section 2255 motion and denies a
certificate of appealability.
And Procedural Background
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.
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. I d ., ¶ 103. The government
asked for an additional reduction for acceptance of
responsibility, which lowered the guideline range to 262 to
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).
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.
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.
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.
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.
Waiver Of Collateral Challenges
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).