Earl S. Boyce, Jr. v. USA

Filing 13

ORDER denying 12 Motion pursuant to the Freedom of Information Act, 5 U.S.C. §552 [and] Privacy Act of 1974 (Section 552a of title 5). Signed by District Judge Martin Reidinger on July 5, 2010. (Pro se litigant served by US Mail.)(jhg)

E a r l S. Boyce, Jr. v. USA

D o c . 13

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:08cv535

E AR L SPENCER BOYCE, JR.,

) ) P e t it io n e r , ) ) vs . ) ) U N IT E D STATES OF AMERICA, ) ) R e s p o n d e n t. ) )

ORDER

TH IS MATTER is before the Court on the Petitioner's Motion [pursuant to ] the Freedom of Information Act, 5 U.S.C. §552 [and] Privacy Act of 1974 (S e c tio n 552a of title 5) [Doc. 12]. T h is civil action has been brought pursuant to 28 U.S.C. §2255 to va c a te , set aside or correct the Petitioner's conviction and sentence in United S ta te s v. Boyce, Criminal Case No. 1:06cr20. In that case, the Petitioner e n te re d into a plea agreement with the Government pursuant to which he a g re e d to the following provision: T h e defendant waives all rights, whether asserted directly or by a representative, to request or to receive from any department or a g e n c y of the United States any records pertaining to the in ve s tig a tio n or prosecution of this case, including without

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limitation any records that may be sought under the Freedom of In fo rm a tio n Act, 5 U.S.C. §552, or the Privacy Act of 1974, 5 U .S .C . §552a. Id ., at Doc. 15. In the pending motion, the Petitioner seeks "access to all evidence that th e federal government used against me in my case and in my motion d is c o ve ry of evidence." [Doc. 12, at 2-3]. In the §2255 motion, the Petitioner h a s attacked the sentence imposed and the representation which he received a t his sentencing hearing and on direct appeal. The Court therefore finds that th e waiver of the plea agreement precludes the pending motion. United S ta te s v. Lucas, 141 Fed.Appx. 169 (4 th Cir. 2005), certiorari denied 546 U.S. 1 1 9 6 , 126 S.Ct. 1391, 164 L.Ed.2d 94 (2006) (affirming district court order d e n yin g FOIA request on ground that petitioner had waived his right to do so in plea agreement); Caston v. Executive Office for U.S. Attorneys, 572 F .S u p p .2 d 125 (D.D.C. 2008) (dismissing FOIA request on ground that plaintiff h a d waived right in plea agreement).

IT IS, THEREFORE, ORDERED that the Petitioner's Motion [pursuant to ] the Freedom of Information Act, 5 U.S.C. §552 [and] Privacy Act of 1974 (S e c tio n 552a of title 5) [Doc. 12] is hereby DENIED.
Signed: July 5, 2010