Green v. United States of America

Filing 8

ORDER granting 5 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 2/2/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KEVIN LAMONT GREEN,
Petitioner,
4:14-cv-170
4: 12-cr-207

V.

UNITED STATES OF AMERICA,
Respondent.

Kevin Green was convicted of
possessing a firearm in violation of 18
U.S.C. § 922(g). ECF No. 1 at 1. He has
now filed a Motion under 28 U.S.C. § 2255,
in which he seeks relief on the ground that
his counsel at sentencing was ineffective.
The Government opposes Green's
Id.
Motion, arguing that Green waived his right
to collaterally attack his sentence on these
grounds. ECF No. 5.
"An appeal waiver is valid if a defendant
enters into it knowingly and voluntarily,"
and the Eleventh Circuit "ha[s] consistently
enforced knowing and voluntary appeal
waivers according to their terms." United
States v. Jiascomb, 451 F.3d 1292, 1294
(11th Cir. 2006). In order for a waiver to be
enforceable, "[t]he government must show
that either (1) the district court specifically
questioned the defendant concerning the
sentence appeal waiver during the Rule 11
colloquy, or (2) it is manifestly clear from
the record that the defendant otherwise
understood the full significance of the

waiver." United States v. Bushert, 997 F.2d
1343, 1351 (llthCir. 1993).
Here, Green waived his right to appeal
unless his sentence exceeded the statutory
maximum or the advisory guideline range.
See 4:12-cr-207-BAE-GRS, ECF No. 55 at
9-10. His § 2255 Motion raises only the
claim that his counsel at sentencing was
ineffective. See ECF No. 1. Since this is
not a claim permitted by his waiver, it is
barred.
The Government has also met its burden
of showing that Green's waiver is
enforceable. At the Rule 11 hearing, the
Court questioned Green thoroughly to
determine whether his plea and waiver were
entered knowingly and voluntarily. ECF
No. 93 at 28-29. The Court also found at the
hearing that Green understood the substance
and consequences of his waiver. Id. at 33.
Therefore, the Court reiterates its finding
that Green's waiver was entered knowingly
and voluntarily.
Green waived the right to challenge his
sentence on the grounds he raises in his §
2255 Motion. The Government has asked
the Court to enforce Green's knowing and
voluntary waiver. Therefore, the Court
GRANTS the Government's Motion to
Dismiss, ECF No. 5.

This

day of February 2015.

'k, liz F
A.

A
DENFIEL(JUDGE
UNITED STATES DISIRICT COURT
SOUTHERN DISTRICT OF GEORGIA