Fletcher v. USA

Filing 4

ORDER denying as moot 2 Movant's Motion for Leave to Proceed in forma pauperis. The Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 126 in CR 08-1261-PHX-DGC) is denied and the civil action opened i n connection with this Motion (CV 12-1599-PHX-DGC (LOA)) is dismissed with prejudice. The Clerk of Court must enter judgment accordingly. Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability becausereasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge David G Campbell on 8/31/12.(DMT)

1
2

KM

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

United States of America,
Plaintiff,

10
11

v.

12

Russell Edward Fletcher,
Defendant/Movant.

13
14

)
)
)
)
)
)
)
)
)
)
)

No. CV 12-1599-PHX-DGC (LOA)
No. CR 08-1261-PHX-DGC
ORDER

15

Movant Russell Edward Fletcher, who is confined in the Federal Correctional

16

Institution-La Tuna in Anthony, Texas, filed a pro se Motion to Vacate, Set Aside, or Correct

17

Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 and an Application

18

to Proceed In Forma Pauperis. The Court will summarily dismiss the motion.

19

I.

Application to Proceed

20

There is no filing fee associated with a § 2255 proceeding. See Rule 3, Rules

21

Governing § 2255 Proceedings, Advisory Comm. Notes (1976) (“There is no filing fee

22

required of a movant under these rules.”). The Court will therefore deny as moot the

23

Application to Proceed.

24

II.

Procedural History

25

Pursuant to a plea agreement, Movant pled guilty to Possession of Child Pornography,

26

in violation of 18 U.S.C. § 2252A(a)(5)(B). On June 7, 2010, the Court sentenced Movant

27

to a 144-month term of imprisonment followed by lifetime supervised release.

28

Movant seeks a reduction of his sentence and raises three grounds for relief:

1

(1)

Movant was denied effective assistance of counsel when his attorney failed to

2

respond to his letters, filed a motion to suppress without allowing Movant to

3

review the motion, failed to fully explore possible key evidence, and refused

4

to contact Movant’s sister;

5

(2)

6

call his sister before sentencing;

7

(3)

8

Movant’s conviction was obtained by use of evidence gained pursuant to an
unconstitutional search and seizure; and

9
10

Movant’s Sixth Amendment rights were violated when his attorney failed to

(4)
III.

“The judge purposely misled facts.”

Summary Dismissal

11

A district court must summarily dismiss a § 2255 application “[i]f it plainly appears

12

from the motion, any attached exhibits, and the record of prior proceedings that the moving

13

party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings for the

14

United States District Courts. When this standard is satisfied, neither a hearing nor a

15

response from the government is required. See Marrow v. United States, 772 F.2d 525, 526

16

(9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982).
In this case, the record shows that summary dismissal under Rule 4(b) is warranted

17
18

because Movant has waived the right to bring a § 2255 motion.

19

IV.

Waiver

20

Movant has waived challenges to his sentence. The Ninth Circuit Court of Appeals

21

has found that there are “strict standards for waiver of constitutional rights.” United States

22

v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume

23

waiver from a silent record, and the Court must indulge every reasonable presumption

24

against waiver of fundamental constitutional rights. United States v. Hamilton, 391 F.3d

25

1066, 1071 (9th Cir. 2004). In this action, Movant’s waiver was clear, express, and

26

unequivocal.

27

Plea agreements are contractual in nature, and their plain language will generally be

28

enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo,
-2-

1

398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory right to bring a

2

§ 2255 action challenging the length of his sentence. United States v. Pruitt, 32 F.3d 431,

3

433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). The only

4

claims that cannot be waived are claims that the waiver itself was involuntary or that

5

ineffective assistance of counsel rendered the waiver involuntary. See Washington v.

6

Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the

7

right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an

8

ineffective assistance of counsel claim that challenges the voluntariness of the waiver); Pruitt,

9

32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that counsel

10

erroneously induced a defendant to plead guilty or accept a particular plea bargain); Abarca,

11

985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective

12

assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4

13

(declining to decide whether waiver of all statutory rights included claims implicating the

14

voluntariness of the waiver).

15

“Collateral attacks based on ineffective assistance of counsel claims that are

16

characterized as falling outside [the category of ineffective assistance of counsel claims

17

challenging the validity of the plea or the waiver] are waivable.” United States v.

18

Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). See also Williams v. United States, 396

19

F.3d 1340, 1342 (11th Cir. 2005) (joining the Second, Fifth, Sixth, Seventh, and Tenth

20

Circuits in holding that “a valid sentence-appeal waiver, entered into voluntarily and

21

knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack,

22

in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel

23

during sentencing.”).

24
25
26
27
28

As part of his plea agreement, Movant made the following waiver:
The defendant waives any and all motions, defenses, probable
cause determinations, and objections which the defendant could
assert to the information or indictment, or to the petition to
revoke, or to the Court’s entry of judgment against the defendant
and imposition of sentence upon the defendant providing the
sentence is consistent with this agreement. The defendant
further waives: (1) any right to appeal the Court’s entry of
judgment against defendant; (2) any right to appeal the
-3-

1

imposition of sentence upon defendant under Title 18, United
States Code, Section 3742 (sentence appeals); and (3) any right
to collaterally attack defendant’s conviction and sentence
under Title 28, United States Code, Section 2255, or any
other collateral attack. The defendant acknowledges that
this waiver shall result in the dismissal of any appeal or
collateral attack the defendant might file challenging his/her
conviction or sentence in this case.

2
3
4
5

(Doc. 95) (emphasis added). Movant indicated in his plea agreement that he had discussed
6
the terms with his attorney, agreed to the terms and conditions, and entered into the plea
7
voluntarily. (Doc. 95).
8
Movant’s assertions in his § 2255 motion do not pertain to the voluntariness of the
9
waiver. Movant expressly waived issues regarding the imposition of sentence and expressly
10
waived the right to bring a § 2255 motion. The Court accepted his plea as voluntarily made.
11
Consequently, the Court finds that Movant waived the issues raised in his § 2255 motion.
12
Thus, the Court will summarily dismiss the motion.
13
IT IS ORDERED:
14
(1)

Movant’s Application to Proceed In Forma Pauperis (Doc. 2) is denied as

(2)

The Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.

15
moot.
16
17
§ 2255 (Doc. 126 in CR 08-1261-PHX-DGC) is denied and the civil action opened in
18
connection with this Motion (CV 12-1599-PHX-DGC (LOA)) is dismissed with prejudice.
19
The Clerk of Court must enter judgment accordingly.
20
(3)

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event

21
Movant files an appeal, the Court declines to issue a certificate of appealability because
22
reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v.
23
McDaniel, 529 U.S. 473, 484 (2000).
24

DATED this 31st day of August, 2012.

25
26
27
28
-4-