Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Morgan

United States District Court, D. Kansas

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ASHLEY N. MORGAN, Defendant/Petitioner.

          MEMORANDUM & ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter comes before the court upon petitioner Ashley N. Morgan's Motion to Vacate Under 18 U.S.C. § 2255 (Doc. 338). Petitioner raises four grounds for relief in support of her petition for resentencing: (1) ineffective assistance of counsel for failing to file a notice of appeal at petitioner's request; (2) prosecutorial misconduct because Assistant United States Attorney Terra Morehead allegedly threatened defense counsel Michael Clarke that petitioner's family would be indicted if she did not cooperate; (3) ineffective assistance of counsel for failing to challenge the drug weight and purity of the methamphetamine attributed to petitioner at sentencing; and (4) ineffective assistance of counsel for failing to communicate adequately with petitioner so that she could participate in her defense. For the reasons explained below, petitioner's motion is denied.

         I. Background

         On July 23, 2015, petitioner pleaded guilty to Count I-conspiracy to possess with intent to distribute 50 grams or more of methamphetamine; maintaining a drug-involved premises; and Count II-counterfeiting or altering federal reserve notes. Petitioner's plea agreement contained a waiver of appeal and collateral attack provision that included language stating that “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. . . .” (Doc. 163, at 7.) Petitioner made no objections to the presentence investigation report (“PSR”) and filed no sentencing memorandum.

         On September 6, 2017, petitioner filed a motion to withdraw her guilty plea. (Doc. 284.) But she withdrew that motion on September 18, 2017. (Doc. 292.) On September 25, 2017, the court sentenced petitioner to 102 months imprisonment on each count, to be served concurrently, with a four-year term of supervised release. Petitioner did not file a direct appeal, but filed her § 2255 petition on December 14, 2017 (Doc. 338).

         II. Discussion

         a. Legal Standard for § 2255 Petitions

         28 U.S.C. § 2255(a) provides that “[a] prisoner in custody . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Rule 4(b) of the Rules Governing § 2255 Proceedings requires “[t]he judge who receives the motion [to] promptly examine it” and “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” The court ordered defense counsel and the government to respond to petitioner's motion. They have done so and the court is now ready to rule.

         b. Appeal and Collateral Attack Waiver

         The government seeks to enforce an appeal and collateral attack waiver in petitioner's plea agreement. A three-pronged test applies to the enforceability of appeal and collateral attack waivers in plea agreements: “(1) whether the appeal falls within the scope of the waiver, (2) whether the defendant's waiver of his rights was knowing and voluntary, and (3) whether a miscarriage of justice would result from enforcement of the waiver.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (citing United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003)).

         Scope

         The court looks at the plain language of the plea agreement, using general principles of contract construction and interpretation to decide whether the issues raised by petitioner are within the scope of the waiver. Here, the plea agreement states “defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution.” In United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), the Tenth Circuit held that the right to collaterally attack one's sentence may generally be waived, so long as the collateral attack is not based on ineffective assistance of counsel claims that challenge the plea or waiver. Any other ineffective assistance claims are generally considered outside the Cockerham exception to the enforceability of collateral attack waivers. United States v. Young, 557 F.Supp.2d 1216, 1221 (D. Kan. 2008).

         Petitioner does not address waiver. While she raises ineffective assistance of counsel claims, she does not suggest that she had ineffective counsel during plea negotiations generally, or regarding the waiver specifically. However, petitioner's plea agreement also states that “[n]otwithstanding 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.” All of plaintiff's claims are for either prosecutorial misconduct or ineffective assistance. Therefore, the court finds that the four claims petitioner makes in her § 2255 petition are outside the scope of the waiver she agreed to in her plea agreement.

         Knowing and Voluntary Petitioner's waiver must have been knowing and voluntary to be enforced. Hahn, 359 F.3d at 1325. The court considers two factors in determining whether a waiver may be enforced: (1) “whether the language of the plea agreement states that the defendant entered the agreement knowingly and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.