FULLENWIDER v. UNITED STATES OF AMERICA
Filing
9
OPINION. Signed by Judge Noel L. Hillman on 11/6/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
LARRY L. FULLENWIDER,
:
:
Petitioner,
:
Civ. No. 16-8131 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA
:
:
Respondent.
:
______________________________:
APPEARANCES:
Larry L. Fullenwider, No. 64635-050
Federal Prison Camp
P.O. Box 2000
Lewisburg, PA 17837
Petitioner Pro se
Alisa Shver, Assistant U.S. Attorney
U.S. Attorney's Office District of New Jersey
401 Market Floor
4th Floor
Camden, NJ 08102
Attorneys for Respondent
HILLMAN, District Judge
Petitioner Larry L. Fullenwider (“Petitioner”) filed a
Motion to Vacate, Set Aside or Correct a Federal Sentence
pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”).
ECF No. 1.
Presently before the Court is Respondent United States of
America’s (“Respondent”) Amended Motion to Dismiss.
1
ECF No. 8. 1
The motion to dismiss was originally incorrectly submitted as
an answer. See ECF No. 4. Respondent subsequently corrected
their motion on the docket. ECF No. 8. Petitioner submitted
his response to the motion before Respondents resubmitted their
motion. ECF No. 5. The amended motion is identical to the one
For the reasons that follow, the Amended Motion to Dismiss will
be granted.
I. BACKGROUND
On September 2, 2014, Petitioner pled guilty to conspiracy
to commit wire fraud in violation of 18 U.S.C. 1349.
Plea
Agreement, United States v. Fullenwider, No. 1:10-cr-510 (D.N.J.
Sept. 2, 2014), ECF No. 185.
As part of the plea agreement,
Petitioner agreed to waive his appellate and post-conviction
rights in the event he received a sentence of 46 months or less.
Plea Hearing Tr., Fullenwider, No. 1:10-cr-510 (D.N.J. Sept. 2,
2014), ECF No. 264 at 50:6 to 51:25; ECF No. 185 at p. 8
(waiving in Schedule A of plea agreement appellate and postconviction rights to challenge a sentence within or below the
range of a total offense level of 21 (37-46 months)(United
States Sentencing Guidelines effective Nov. 1, 2013, Criminal
History Category I)).
The Honorable Jerome B. Simandle, U.S.D.J., conducted
Petitioner’s sentencing hearing on May 13, 2015 and sentenced
Petitioner to a term of 46 months of imprisonment with three
years of supervised release.
Judgment of Conviction,
Fullenwider, No. 1:10-cr-510 (D.N.J. May 13, 2015), ECF No. 281.
to which Petitioner previously responded.
2
Petitioner did not file a direct appeal or a petition for writ
of certiorari with the Supreme Court of the United States.
ECF
No. 1 at 4.
Petitioner filed a motion to vacate, set aside or correct
his federal sentence pursuant to 28 U.S.C. § 2255 on October 26,
2016.
ECF No. 1.
Petitioner filed his memorandum of law on
December 9, 2016, arguing that Amendment 794 of the Sentencing
Guidelines should be applied retroactively to his sentence.
No. 3.
ECF
Amendment 794 amends U.S.S.G. § 3B1.2 (Mitigating Role)
and became effective on November 1, 2015, six months after
Petitioner was sentenced.
Id. at 12.
Respondent United States moves to dismiss the § 2255 motion
as time-barred, prohibited by the plea agreement, and as without
merit.
ECF No. 8.
Petitioner argues that his motion is timely
under § 2255(f)(3) because it was filed less than one year after
Amendment 794 became effective.
ECF No. 5 at 3.
He asserts
that the facts of his case support retroactive application of
the amendment to give him a minor role adjustment.
Id. at 9-13.
II. DISCUSSION
Petitioner raises one ground for relief in his § 2255
motion: that he is entitled to a downward adjustment pursuant to
Amendment 794 of the Sentencing Guidelines due to his mitigating
role in the crime for which he was sentenced.
3
Section 2255
provides in relevant part that:
[a] prisoner in custody under sentence of a court
established by Act of Congress 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.
28 U.S.C. § 2255(a).
A district court must hold an evidentiary hearing on a §
2255 motion unless the “motion and the files and records of the
case conclusively show” that the movant is not entitled to
relief.
28 U.S.C. § 2255(b); see also United States v. Booth,
432 F.3d 542, 545–46 (3d Cir. 2005).
Here, the record
demonstrates that Petitioner is not entitled to relief on his
claims.
Assuming without deciding that the motion is timely under §
2255(f), Petitioner’s § 2255 motion is barred by his plea
agreement with the United States.
“Waivers in plea agreements
are neither new nor unusual, and we have long enforced their
terms.”
2019).
United States v. Damon, 933 F.3d 269, 272 (3d Cir.
“[W]aivers of appeals should be strictly construed” and
“if entered into knowingly and voluntarily, are valid.”
States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).
United
The Court
will not review the merits of Petitioner’s § 2255 motion if:
“(1) the issues raised fall within the scope of the appellate
4
waiver; and (2) [Petitioner] knowingly and voluntarily agreed to
the appellate waiver; unless (3) enforcing the waiver would
‘work a miscarriage of justice.’”
United States v. Erwin, 765
F.3d 219, 225 (3d Cir. 2014) (quoting United States v. Grimes,
739 F.3d 125, 128–19 (3d Cir. 2014)), cert. denied, 136 S. Ct.
400 (2015).
Petitioner agreed to waive his appellate and postconviction rights, including motions under § 2255, in the event
he received a sentence of 46 months or less.
Petitioner’s plea
agreement stated in relevant part:
Larry L. Fullenwider knows that he has and, except as
noted below in this paragraph, voluntarily waives, the
right to file any appeal, any collateral attack, or any
other writ or motion, including but not limited to and
appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C.
§ 2255, which challenges the sentence imposed by the
sentencing court if that sentence falls within or below
the Guidelines range that results from the agreed total
Guidelines offense level of 21.
. . . .
The parties agree not to seek or argue for any upward or
downward departure, adjustment or variance not set forth
herein.
Plea Agreement, Fullenwider, No. 1:10-cr-510 (D.N.J. Sept. 2,
2014), ECF No. 185 ¶¶ 8-9. at 50:6 to 51:25.
Judge Simandle
reviewed the agreement in full during the Rule 11 plea colloquy,
including the wavier provisions.
See Plea Hearing Tr.,
Fullenwider, No. 1:10-cr-510 (D.N.J. Sept. 2, 2014), ECF No.
5
264.
Judge Simandle explained the difference between a direct
appeal and a motion under § 2255, and informed Petitioner on the
record: “Paragraph 8 [of the plea agreement] says you would give
up your right to seek postconviction relief as long as your
sentence is not greater than Level 21, and again that’s up to 46
months.”
Id. at 51:9-12.
Petitioner confirmed that was his
understanding of the waiver.
Id.
at 51:14.
The record
establishes that Petitioner entered into the Plea Agreement
knowingly and voluntarily.
The waiver is clearly described in
the stipulations of the Plea Agreement, and Petitioner confirmed
to Judge Simandle that he read and understood all of the
stipulations in the Plea Agreement and had discussed them with
his attorney.
Id. at 52:1-12.
Moreover, enforcing the waiver in this case would not
result in a miscarriage of justice.
Courts in this circuit have
consistently determined that Amendment 794 has not been made
retroactive.
See United States v. Spruill, 774 F. App'x 92, 94
(3d Cir. 2019) (per curiam) (denying relief under 18 U.S.C. §
3582 because “Amendment 794 . . .
which took effect after
[petitioner’s] sentencing, has not been made retroactive”)
(citing U.S.S.G. § 1B1.10(d)); United States v. Brown, 694 F.
App'x 62, 64 (3d Cir. 2017) (per curiam) (“[T]he Sentencing
Commission has not listed Amendments 791, 792, or 794 in
6
U.S.S.G. § 1B1.10(d) as amendments that apply retroactively.”);
see also Polo v. United States, No. 16-5137, 2019 WL 3416895, at
*3 (D.N.J. July 29, 2019) (“Amendment 794 is not ‘retroactive’
in any sense that would aid the petitioner here. It cannot be
asserted to adjust a sentence in collateral proceedings where
judgment is final.”); Figueroa v. United States, No. 16-8081,
2019 WL 3765427, at *4 (D.N.J. Aug. 9, 2019) (denying relief
under 28 U.S.C. § 2255).
Since Petitioner is not entitled to
retroactive application of Amendment 794, enforcing the waiver
provision of his plea agreement will not amount to a miscarriage
of justice.
Therefore, the Court will enforce the waiver and
grant the motion to dismiss.
III. CERTIFICATE OF APPEALABILITY
Section 2253 provides that an appeal may not be taken to
the court of appeals from a final order in a § 2255 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
The
Supreme Court held in Slack v. McDaniel that “[w]hen the
district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,
a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition
7
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
529 U.S.
473, 484 (2000) (emphasis added).
This Court will deny a certificate of appealability because
jurists of reason would not find it debatable that Petitioner’s
argument is covered by the collateral attack provision and that
the waiver provisions should be enforced.
IV.
CONCLUSION
For the above reasons, Respondent’s motion to dismiss will
be granted.
No certificate of appealability shall issue.
An
appropriate Order follows.
Dated: November 6, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?