Kitzman v. USA

Filing 14

MEMORANDUM DECISION AND ORDER dismissing in its entirety 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Mark Daniel Kitzman. No certificate of appealability shall be issued.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

Case No. 1:09-CV-584-BLW
1:06-CR-126-BLW
MEMORANDUM DECISION AND
ORDER

MARK DANIEL KITZMAN,
Defendant-Movant.

Pending before the Court is Mark Daniel Kitzman’s Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion
together with its supporting Memorandum of Law, the Government’s Motion to Dismiss
and Response (Dkt. 5), and Kitzman’s Reply (Dkt. 9),1 as well as the underlying criminal
record, the Court enters the following Order dismissing the § 2255 Motion on the grounds
of waiver.
BACKGROUND AND SUMMARY OF ISSUES
Kitzman was indicted along with eleven other individuals on June 19, 2006. He
was charged with continuing criminal enterprise (Count 1), conspiracy to
manufacture/distribute/possess with intent to distribute controlled substances (Count 2),

1

Unless otherwise noted, all further docket numbers will refer to the underlying criminal case,
1:06-CR-126-BLW.
MEMORANDUM DECISION AND ORDER - 1

conspiracy to launder money (Count 3), conspiracy to launder money (Count 4),
continuing criminal enterprise forfeiture (Count 5), and drug forfeiture (Count 6). The
charges related to a 30-year period of drug trafficking and money laundering. He was
arraigned on September 20, 2006.
On May 23, 2007, a Superseding Indictment was filed which added three more coDefendants as well as a count charging conspiracy to structure transactions, launder
money, and use interstate facilities (Count 4). Superseding Indictment, Dkt. 197.
Kitzman was arraigned on the Superseding Indictment on July 5, 2007. On December 12,
2007, pursuant to a Rule 11(c)(1)(C) binding Plea Agreement, he pleaded guilty before
United States Magistrate Judge Larry M. Boyle to the drug conspiracy and money
laundering conspiracy charges (Counts 2 and 3, respectively) together with the related
forfeiture Counts 6 and 7. Minutes, Dkt. 417; Plea Agreement, Dkt. 393.
Kitzman pleaded guilty in exchange for the Government’s agreement to dismiss
the remaining counts, to recommend a sentence of between six and nine years, to make
certain concessions regarding the forfeiture of his property, and to move for a downward
departure under § 5K1.1 if Kitzman provided what the Government determined was
substantial assistance in the investigation of others. The dismissal of Count 1, the
continuing criminal enterprise charge, relieved him of a 20-year statutory minimum
sentence. The Government’s informal agreement not to file a § 851 sentencing
enhancement based on his prior drug conviction also relieved him of a mandatory
sentence of twenty years on Count 2, the drug conspiracy charge.
MEMORANDUM DECISION AND ORDER - 2

Between the time of his arraignment on the original Indictment through the entry
of his plea to the Superseding Indictment, Kitzman was represented by a succession of
two court-appointed attorneys and retained counsel Andrew Parnes. Scott Gatewood was
appointed counsel at the arraignment on the Indictment. Minutes, Dkt. 51. He moved to
withdraw based on irreconcilable differences that had arisen between him and Kitzman.
Mot. to Withdraw, Dkt. 160. Mr. Gatewood had made arrangements for Kitzman to
review over 13,000 pages of discovery and had visited with Kitzman at the Ada County
Jail on sixteen occasions to review that discovery. Gatewood Aff., Dkt. 160-1. At the
final meeting, it was apparent that there was a total breakdown of communication, and
Kitzman indicated his desire for new appointed counsel. Id. at ¶¶ 5-6.
The Court granted Mr. Gatewood’s motion and appointed attorney Robert
Wallace. Order, Dkt. 161. Mr. Wallace represented Kitzman at the arraignment on the
Superseding Indictment and through initial plea negotiations. Mr. Parnes, who became
attorney of record approximately six weeks prior to the change of plea hearing, negotiated
the final Plea Agreement, and represented Kitzman through sentencing. Notice of
Substitution of Attorney, Dkt. 314.
On June 29, 2009, the Court accepted the binding Plea Agreement, granted a 2level departure pursuant to § 5K1.1, and imposed a sentence of 78 months on Counts 2
and 3 to be served concurrently. Judgment, Dkt. 884. The sentence was well below the
statutory minimum of 10 years and near the bottom of the agreed upon range. He did not
appeal his conviction or sentence.
MEMORANDUM DECISION AND ORDER - 3

On December 17, 2009, Kitzman timely filed the pending § 2255 Motion. He
alleges six grounds for relief: (1) fraudulently induced plea, (2) ineffective assistance of
counsel during plea negotiations, (3) Congress’ lack of authority to enact 21 U.S.C.
§ 801, (4) the unconstitutionality of the conspiracy and continuing criminal enterprise
statutes, (5) Congress’ lack of authority to enact Fed. R. Crim. P. 11, and (6) invalid
grand jury. The Government contends that Kitzman waived his right to bring this § 2255
Motion and that, to the extent that they are not waived, his claims are otherwise subject to
summary dismissal.
LEGAL STANDARD
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[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.”
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the
Government “to file an answer, motion, or other response within a fixed time, or to take
MEMORANDUM DECISION AND ORDER - 4

other action the judge may order.”
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after
consideration of the pleadings and an expanded record. See Advisory Committee Notes
following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then proceeds to a
determination under Rule 8 of whether an evidentiary hearing is required. The Court need
not hold an evidentiary hearing if the issues can be conclusively decided on the basis of
the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
ANALYSIS
Pursuant to the Plea Agreement, in return for the concessions made by the
Government, Kitzman agreed to waive his right to appeal or seek relief under § 2255
except under certain limited circumstances.2 Plea Agreement ¶ VII, Dkt. 393. More

2

The full waiver provision provides as follows:

A.
In exchange for the Government's concessions in this Plea Agreement, and except as
provided in subparagraph B, defendant waives to the full extent of the law any right to appeal or to
collaterally attack the conviction, entry of judgment, sentence (including any restitution or forfeiture
order), or entry of sentence. This waiver includes appeals and collateral attacks based on any source
whatever, including but not limited to:
1.
2.
3.

28 U.S.C. § 1291 (judgment and conviction);
18 U.S.C. §§ 3553 and 3742(a), and 28 U.S.C. § 1291 (sentencing);
28 U.S.C. §§ 2241 - 2255 (habeas corpus).

MEMORANDUM DECISION AND ORDER - 5

specifically, Kitzman agreed to waive his right to file a § 2255 motion but retained the
right to file one § 2255 motion if he believed that he received ineffective assistance of
counsel based solely on information not known to him at the time sentence was imposed
and which, in the exercise of reasonable diligence, could not have been known by him at
that time. Id. at ¶ VII.C.
1.

Waiver
A defendant may waive his statutory right to file a § 2255 motion challenging his

sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S.
979 (1993). However, a plea agreement must expressly state that the right to bring a
§ 2255 motion is waived in order for the waiver to be valid. United States v. Pruitt, 32
F.3d 431 (9th Cir. 1994) (finding that language in plea agreement that “he will not appeal
whatever sentence is imposed by the court” did not constitute a waiver of the right to

The defendant acknowledges and agrees that this waiver shall result in the dismissal of any
appeal or collateral attack the defendant might file challenging his conviction or sentence in this case.
Further, if the defendant files a notice of appeal or a habeas petition, notwithstanding this agreement,
defendant agrees that this case shall, upon motion of the Government, be remanded to the district court to
determine whether defendant is in breach of this agreement and, if so, to permit the Government to
withdraw from the Plea Agreement.
If the defendant believes the Government has not fulfilled its obligations under this agreement,
defendant will object at the time of sentencing; otherwise the objection will be deemed waived.
B.
Notwithstanding subparagraph A, the defendant shall retain the right to file one direct
appeal if the sentence imposed exceeds the statutory maximum as determined by the district court;
C.
Notwithstanding subparagraph A, the defendant shall retain the right to file one habeas
petition (motion under 28 U.S.C. § 2255) if the defendant believes he received ineffective assistance of
counsel based solely on information not known to the defendant at the time the district court imposed
sentence and which, in the exercise of reasonable diligence, could not have been known by the defendant
at that time.
MEMORANDUM DECISION AND ORDER - 6

bring a § 2255 motion). Nevertheless, even an express waiver may not bar an ineffective
assistance of counsel claim challenging the knowing and voluntary nature of the plea
agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d
1149, 1156 n.4 (9th Cir. 2005). See also Washington v. Lampert, 422 F.3d 864, 871 (9th
Cir. 2005) (finding waiver of right to file § 2254 petition is unenforceable with respect to
an ineffective assistance of counsel claim challenging the voluntariness of the waiver
itself).
Here, the waiver provision specifically states that the right to file a § 2255 motion
is waived except for a § 2255 motion alleging ineffective assistance of counsel based
solely on information not known to him at the time sentence was imposed. None of the
allegations Kitzman advances was unknown to him at the time he entered his plea or at
the time his sentence was imposed. Therefore, unless his waiver was unknowing and
involuntary, all of his claims are barred. Kitzman has not challenged the voluntariness of
the waiver itself. However, he alleges the plea itself was fraudulently induced which may
be interpreted to include the Plea Agreement as well.
2.

Knowing and Voluntary Plea
A guilty plea is constitutionally valid only if it is “voluntary” and “intelligent.”

Bousley v. United States, 523 U.S. 614, 618 (1998) (citing Brady v. United States, 397
U.S. 742, 748 (1970)). A guilty plea is deemed valid when a defendant is advised of the
nature and elements of the charges against him and the possible punishment and
understands that he is waiving his constitutional rights to avoid self-incrimination, to
MEMORANDUM DECISION AND ORDER - 7

confront his accuser, and to have a jury decide his case. See Brady, 397 U.S. at 749.
Furthermore, to be valid, a plea must not be made based on threats, misrepresentations, or
improper promises. Id. at 755.
Statements made in open court at the time of a plea carry a strong presumption of
verity and are entitled to great weight. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.
1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)); see also United States v.
Kazcynski, 239 F.3d 1108, 1114-15 (9th Cir 2001) (“substantial weight” must be given to
in-court statements). Even though that presumption is not necessarily an insurmountable
barrier to an evidentiary hearing, the “subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible.” Id. (citations omitted).
A.

Plea Agreement

Kitzman’s signed Plea Agreement advised him of the nature and elements of the
charges to which he was pleading guilty, including a detailed factual basis for those
charges. Plea Agreement ¶ III. The Plea Agreement also advised him of the statutory
maximum penalty for each count. Id. ¶ IV. Finally, it advised Kitzman of his
constitutional rights including “(1) the right to plead not guilty to the offense(s) charged
against [him] and to persist in that plea; (2) the right to a trial by jury; and (3) the rights,
at trial, to confront and cross-examine adverse witnesses, to be protected from compelled
self-incrimination, to testify, to present evidence and to compel the attendance of
witnesses.” Id. ¶ II.
MEMORANDUM DECISION AND ORDER - 8

Kitzman acknowledged that he understood he was waiving the enumerated rights
by pleading guilty. Id. He also acknowledged that he discussed his rights with his
attorney and understood them, that the government did not make any promises or
inducements in exchange for the plea, and that no one had threatened or coerced him to
enter a plea of guilty. Id. ¶ XIII.
B.

Plea Colloquy

The Court listened to the recording of the change of plea hearing. Judge Boyle
conducted an exhaustive plea colloquy during which Kitzman stated under oath that he
had reviewed the Superseding Indictment and the Plea Agreement with counsel in detail
and understood them both, that he fully understood his constitutional rights and
understood that he was waiving those rights, and that his decision to plead guilty was not
the result of any threat or promise.
Judge Boyle reviewed the provisions of the Plea Agreement, including the those
advising him of the nature and elements of the offenses and the statutory penalties. Judge
Boyle asked Kitzman if he had gone over every provision with his attorney, read every
word, understood every word, and asked and had answered any question that he had.
Kitzman responded without hesitation to each question. Most significantly to Kitzman’s
pending claims, he responded that he understood that he was waiving his right to file an
appeal or a § 2255 motion. The plea colloquy could not have been more thorough.
C.

Grounds

As grounds for his claim of involuntary plea, Kitzman contends that the continuing
MEMORANDUM DECISION AND ORDER - 9

enterprise charge was “fraudulent” and “brought solely for the purpose of ‘leverage’ in
order to terrorize the defendants in order to induce them to accept a guilty plea to a ‘lesser
offense’” and, relatedly, that the Government deliberately “stacked bogus charges” to
deceive him into thinking he was “facing more charges than the law allows” to induce a
guilty plea. § 2255 Memorandum at 8-16, Dkt. 1-1.
Kitzman’s stated grounds are merely conclusory allegations made in hindsight that
do not support a finding of fraudulently induced or involuntary plea. They do not
overcome the strong presumption of verity of his sworn statements at the change of plea
hearing which complied in every respect with the requirements of Fed. R. Crim. P. 11.
Furthermore, as noted by the Government, a defendant may be tried and convicted of both
a conspiracy and a continuing criminal enterprise charge although he may not be
sentenced for both offenses without violating the Double Jeopardy Clause. See United
States v. Ziskin, 360 F.3d 934, 948-49 (9th Cir. 2003). By implication, a defendant may
be indicted for both offenses.
3.

Ineffective Assistance of Counsel at Plea Stage
To the extent that ineffective assistance of counsel at the plea stage could support a

finding of involuntary plea and invalidate the waiver, the Court will address Kitzman’s
allegations that counsel was ineffective for “not recognizing a bad indictment,” for aiding
and abetting the prosecutors, and for focusing only on a plea bargain. The Court will
address these claims only as to Mr. Parnes. Kitzman exhibits obvious disdain of his two
appointed counsel. However, regardless of what Mr. Gatewood or Mr. Wallace did or did
MEMORANDUM DECISION AND ORDER - 10

not do, Mr. Parnes ultimately negotiated the Plea Agreement and presumably cured any
deficient representation.
A.

Legal Standard

The well-established two-prong test for evaluating ineffective assistance of
counsel claims is deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a
claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156,
1161 (9th Cir. 1989). The Strickland standard is “highly demanding.” Kimmelman v.
Morrision, 477 U.S. 365, 381-82; 386 (1986).
Both prongs of the Strickland test must be met. Strickland, 466 U.S. at 687. In
order to establish deficient performance, a defendant must overcome the strong
presumption that counsel’s performance falls “within the wide range of reasonable
professional assistance” by showing that counsel’s performance “fell below an objective
standard of reasonableness.” Id., at 688-89. In order to establish prejudice, a defendant
must affirmatively prove by a reasonable degree of probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Id. at 694.
The appropriate standard for determining prejudice in cases involving plea
bargains is that the defendant must show “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
The Supreme Court very recently addressed the reasons for a “most deferential”
MEMORANDUM DECISION AND ORDER - 11

standard for judging counsel’s performance:
Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and
with the judge.
Premo v. Moore, 131 S.Ct. 733, 739-40 (2011). The Court also recognized that “[p]lea
bargains are the result of complex negotiations suffused with uncertainty, and defense
attorneys must make careful strategic choices in balancing opportunities and risks” of a
plea. Id. at 741. Considerations surrounding these strategic choices in the pre-trial
context “make strict adherence to the Strickland standard all the more essential when
reviewing the choices an attorney made at the plea bargain stage.” Id.
A difference of opinion regarding tactics is not proof of ineffective assistance of
counsel because “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” See Cox v. Ayers, 613 F.3d
883, 893 (9th Cir. 2010) (citing Strickland, 466 U.S. at 690 and United States v. Mayo,
646 F.3d 369, 375 (9th Cir. 1981) (per curiam)).
B.

Failure to Recognize a Bad Indictment

As stated by the Ninth Circuit, an indictment must meet certain requirements:
An indictment is sufficient if it (1) contains the elements of
the offense charged and fairly informs a defendant of the
charge against him which he must defend and (2) enables him
to plead an acquittal or conviction in bar of future
prosecutions for the same offense. . . . With respect to
conspiracies, an indictment under 21 U.S.C. § 846 . . . is
sufficient if it alleges: a conspiracy to distribute drugs, the
time during which the conspiracy was operative and the
MEMORANDUM DECISION AND ORDER - 12

statute allegedly violated, even if it fails to allege or prove any
specific overt act in furtherance of the conspiracy.
United States v. Forrester, 616 F.3d 929, 940 (9th Cir. 2010) (internal citations and
quotations omitted) (emphasis added).
Kitzman alleges that counsel “was unable to recognize a bad indictment” that
improperly charged both conspiracy and continuing criminal enterprise and that if counsel
had investigated, he would have seen both that “bogus counts 89 et seq. had no
substance” and that Counts 1 and 2 were beyond the statute of limitations. § 2255 Mem.
at 19. The Court will address each contention in turn.
First, as discussed above, there is no prohibition against charging both a
conspiracy and continuing criminal enterprise offense. Ziskin, 360 F.3d at 948-49.
Next, when Kitzman refers to “bogus counts 89 et seq,” the Court assumes he is
referring to Predicate Acts 89 to 93 in which he claims to have not participated. § 2255
Mem. at 7. However, “the government need not prove all facts charged in an indictment;
instead only enough facts to prove the essential elements of the crime must be
demonstrated at trial.” United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986)
(citations omitted). See also Forrester, 616 F.3d at 940 (indictment is sufficient even if it
fails to prove any specific overt act in furtherance of the conspiracy).
Finally, Kitzman offers absolutely no grounds for his contention that the statute of
limitations had run on Counts 1 and 2. His conclusory allegation is not sufficient to state a
claim of ineffective assistance of counsel for failing to recognize a statute of limitations

MEMORANDUM DECISION AND ORDER - 13

issue. However, the Court notes that on June 6, 2008, it had rejected co-Defendant
Gregory Sperow’s statute of limitations argument that no evidence prior to January 8,
2003 could be introduced. Mem. Dec. and Order at 10 (Dkt. 616).
Kitzman has failed to identify any valid basis upon which counsel should have
challenged the Superseding Indictment. A review of the Superseding Indictment reveals
that it meets all of the necessary requirements for a sufficient indictment. It was very
detailed and left no doubt of the charges Kitzman needed to defend. Because the
government need not prove all of the allegations of an indictment, Kitzman’s alleged noninvolvement in certain overt acts, would not constitute grounds to dismiss the indictment.
C.

Aiding and Abetting the Prosecutors

Kitzman alleges that defense counsel “was aiding and abetting the prosecutors in
their deception of defendant, in which case said ‘advocate’ should refund all of
defendant’s legal fees and compensate him for time spent in prison.” § 2255 Mem. at 17
(emphasis in original). This unsupported, conclusory allegation is frivolous and not
deserving of comment.
D.

Pursuing only Plea Negotiations

Kitzman also claims that counsel was “per se ineffective” at the plea stage because
his “whole line or method of defense is strictly to negotiate and/or discuss potential plea
bargains.” § 2255 Mem. at 18. Implicit in this allegation is that counsel was ineffective in
not going to trial.
Kitzman cites Sanchez v. Mondragon in support of his claim that counsel who
MEMORANDUM DECISION AND ORDER - 14

pursues a plea bargain to the exclusion of preparing a defense is per se ineffective.
Sanchez is inapposite, however, not only because it does not so hold, but also because
counsel, who the defendant argued and the court assumed was likely unprepared, was
“interested only in discussing potential plea bargains” despite the fact that the defendant
“continually protested his innocence.” Sanchez v. Mondragon, 858 F.2d 1462, 1466
(10th Cir. 1988), overruled in part on other grounds by United States v. Allen, 895 F.2d
1577 (10th Cir. 1990). Kitzman does not now – and there is no indication that he did
prior to entry of his plea – proclaim his innocence of all the charges. Rather, he made
admissions in various debriefings that formed the factual basis portion of the Plea
Agreement.
As the Supreme Court stated in Premo v. Moore, supra, “[p]lea bargains are the
result of complex negotiations suffused with uncertainty, and defense attorneys must
make careful strategic choices in balancing opportunities and risks” between entering a
plea and going to trial. Moore, 131 S.Ct.. at 741.
Kitzman has not identified any defenses counsel should have pursued or any other
basis for indicating that he should have gone to trial. It is obvious to the Court that
counsel made a reasoned choice based on the allegations in the Superseding Indictment
and thousands of pages of discovery to remove the threat of the twenty-year mandatory
minimum sentence that would have applied whether or not he prevailed at trial on the
continuing criminal enterprise charge. The Court can find no fault in pursuing the option
of a plea agreement under the circumstances. Beyond reducing Kitzman’s exposure from
MEMORANDUM DECISION AND ORDER - 15

a twenty- to a ten-year mandatory minimum, counsel opened the door to a sentence below
even the ten-year mandatory minimum. There is simply no basis for finding deficient
performance.
As for Strickland’s prejudice prong, fatally missing from Kitzman’s ineffective
assistance of counsel claim is a showing, or even an allegation, that there was “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59. See also Moore, 131 S.Ct. at
745 (finding Moore’s failure to make that [Hill] showing forecloses relief).
CONCLUSION
The predominate themes of Kitzman’s § 2255 Motion and Reply are that the grand
jury, all defense counsel, and the courts work for the “prosecutors” and that Congress did
not have the power to enact the laws under which he was charged. He claims that our
criminal justice system “actually originated in Stalin’s Soviet Union, as a cursory reading
of Aleksandr Solzhenitsyn’s The Gulag Archipelago will reveal” and that “the emperors
in today’s federal courts are the prosecutors with defense counsel and judges doing their
bidding and going along to get along.” § 2255 Mem. at 17; 19. He even suggests that
there is no other explanation for judges “not righting the wrongs” with the system “other
than their partnership with prosecutors and a little share of the forfeitures.” Id. at 19. The
tone of his allegations is quite a departure from his demeanor and allocution at sentencing
where he readily admitted, accepted responsibility, and apologized for his criminal
conduct.
MEMORANDUM DECISION AND ORDER - 16

Nothwithstanding his criticism of the criminal justice system, Kitzman clearly and
unambiguously waived his right to bring the pending § 2255 Motion. He has not
demonstrated that his plea was involuntary or that counsel was ineffective in negotiating
the Plea Agreement containing the waiver. Therefore, these claims and Kitzman’s
remaining claims are subject to summary dismissal.
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).3 When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Slack, 529 U.S. at
484; Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).

3

The requirements for a certificate of appealability for a § 2255 appeal do not appear to differ
from the requirements for a certificate of appealability for a § 2254 habeas petition related to a state
conviction. See United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997). Therefore, cases addressing the
requirements in the context of a § 2254 proceeding are pertinent to a § 2255 proceeding as well.
MEMORANDUM DECISION AND ORDER - 17

After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s determination that Kitzman waived his
right to file a § 2255 on the grounds stated in his Motion to be debatable or wrong.
Accordingly, a certificate of appealability will not issue.
ORDER
IT IS ORDERED:
1.

Mark Daniel Kitzman’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DISMISSED in its entirety.

2.

No certificate of appealability shall issue. Kitzman is advised that he may
still request a certificate of appealability from the Ninth Circuit Court of
Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, he must file a timely notice of appeal.

3.

If Kitzman files a timely notice of appeal, and not until such time, the Clerk
of Court shall forward a copy of the notice of appeal, together with this
Order, to the Ninth Circuit Court of Appeals. The district court’s file in this
case is available for review online at www.id.uscourts.gov.

DATED: May 15, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 18