Woodard v. USA
Filing
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OPINION AND ORDER by Judge Frank H. Seay, denying Petitioner's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. Sec. 2255; /terminating case (Re: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) ) (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JULIAN DARNELL WOODARD,
)
)
)
)
) No. CIV-12-368-FHS
)
)
)
)
Defendant/Petitioner,
v.
UNITED STATES OF AMERICA,
Plaintiff/Respondent.
OPINION AND ORDER
On March 12, 2008, Defendant, Julian Darnell Woodard, was
charged as part of a twenty-eight-count indictment in Case No. CR08-25-FHS.
In particular, Woodard was charged in Count One with
Conspiracy
to
Possess
with
Intent
to
Distribute
Controlled
Substances in violation of 21 U.S.C. § 846 and in Count TwentyEight with Drug Forfeiture pursuant to 21 U.S.C. § 853.
On
September 3, 2008, Defendant entered a guilty plea as to Count One.
At a November 18, 2009, sentencing hearing, the Court sentenced
Defendant to a term of 120 months imprisonment on Count One, to be
run concurrent with his state court sentence in McIntosh County
Case No. CF-207-40, and a term of 60 months of supervised release.
The remaining forfeiture charge in Count Twenty-Eight was dismissed
by the Government. On November 23, 2009, a Judgment and Commitment
was entered as to Defendant.
Defendant did not file an appeal or
file a petition pursuant to 28 U.S.C. § 2255.
On November 9, 2011,
Defendant filed Motion for Retroactive Application of Sentencing
Guidelines to Crack Cocaine Offense pursuant to 18 U.S.C. § 3582.
On January 4, 2012, the Court denied Defendant’s application on the
basis that Amendment 750 did not lower his offense level.
On August 30, 2012, Defendant filed the instant Motion to
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Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Dkt.
No. 1) seeking to have his conviction in Case No. CR-08-25-FHS
vacated, set aside or corrected.
Defendant contends his counsel
was ineffective in failing to “challenge[] the court to credit the
time I served in federal custody to my sentencing for the new
federal charge.”
Defendant alleges he was in federal custody
awaiting sentencing in this case from March 21, 2008 through
November 18, 2009, and that he has not been given credit by the
Bureau of Prisons for this period of incarceration.
Motions under section 2255 must typically be filed within one
year of the date on which the conviction became final.
U.S.C.
§
2255(f)(1).
Defendant’s
conviction
was
See 28
entered
on
November 23, 2009, and it became final on December 8, 2009 - the
end of the ten-day period, exclusive of weekends and holidays, in
which Defendant could have, but did not, file his appeal.
Fed.R.App.P. 4(b)(1)(A)(I).1
See
Thus, under the one-year time frame
of section 2255(f)(1), Defendant had until December 8, 2010, to
file a timely motion.
Defendant’s August 30, 2012, filing of the
instant section 2255 motion is therefore not timely as it was filed
1
A 2009 amendment to Fed.R.App.P. 4, effective December 1,
2009, extends the time to file appeals from ten to fourteen days,
with the inclusion of intermediate weekends and holidays in the
computation. See Fed.R.Civ.P. 4 advisory committee’s notes to
2009 Amendments (“The times set in the former rule at 10 days
have been revised to 14 days.”); Fed.R.App.P. 26 advisory
committee’s note to 2009 Amendments (“Under new subdivision
(a)(1), all deadlines stated in days (no matter the length) are
computed in the same way. The day of the event that triggers the
deadline is not counted. All other days - including
intermediate Saturdays, Sundays, and legal holidays - are
counted, with only one exception. If the period ends on a
Saturday, Sunday, or legal holiday, then the deadline falls on
the next day that is not a Saturday, Sunday, or legal holiday.”).
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nearly twenty-two months after the December 8, 2010, deadline.2
Defendant’s section 2255 motion also fails because, as part of
his guilty plea, Defendant executed a plea agreement containing a
waiver of his appellate and post-conviction rights. In particular,
Defendant’s plea agreement, which was signed by Defendant and his
counsel, provides that “defendant waives the right to collaterally
attack the conviction and sentence pursuant to 28 U.S.C. § 2255,
except for claims based on ineffective assistance of counsel which
challenge the validity of the guilty plea or this waiver.”
Agreement (Doc. No. 330, Case 08-CR-25-FHS), at 10.
of appellate rights are generally enforceable.
Plea
Such waivers
United States v.
Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004)(en banc).
In Hahn, the
Tenth Circuit held that a waiver of appellate rights will be
enforced as long as: (1) “the disputed appeal falls within the
scope of the waiver of appellate rights”; (2) “the defendant
2
Section 2555(f) provides that the one-year period runs
from the latest of several dates, including subsection (1)’s
provision for “the date on which the judgment of conviction
becomes final.” As noted, Defendant’s conviction became final on
December 8, 2009, and Defendant does not attempt to argue that
the Court’s January 4, 2012, denial of his 18 U.S.C. § 3582
motion somehow restarts computation period. Such an argument has
no merit. See 18 U.S.C. § 3582(b)(sentence subsequently modified
or corrected “constitutes a final judgment for all other
purposes.”). Under another provision of section 2255(f) subsection (4) - the one-year period runs from “the date on which
the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.” This
latter provision does not operate to make Defendant’s petition
timely as Defendant acknowledges that when he arrived at the
federal correctional institution he “was informed that the BOP
would not credit the time” spent in federal custody while
awaiting sentencing. Defendant arrived at the federal
correctional institution, FCI El Reno, on May 10, 2010;
consequently, even assuming the one-year period is calculated
from the May 10, 2010, date, Defendant’s petition is not timely.
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knowingly and voluntarily waived his appellate rights”; and (3)
“enforcing the waiver would [not] result in a miscarriage of
justice.”
Id. at 1325; see also United States v. Cockerham, 237
F.3d 1179, 1181-83 (10th Cir. 2001)(recognizing that waiver of
collateral attacks brought under 28 U.S.C. § 2255 are generally
enforceable where waiver is explicitly stated in plea agreement and
both plea and waiver were knowingly and voluntarily made).
From review of the Plea Agreement and the audio recording of
the plea and sentencing hearings, the Court concludes the Hahn
factors have been satisfied.
First, Defendant’s motion is a
collateral attack under section 2255 that does not involve the
validity of his guilty plea or the appellate waiver.
Defendant’s
claim of ineffective assistance of counsel is specific to his
contention that counsel failed to ensure that he would be credited
for his time served awaiting sentencing - it is not tied to either
his guilty plea or his appellate waiver.
Second, the clear
language of the Plea Agreement, which was acknowledged and executed
by Defendant, and the plea colloquy establish that Defendant
knowingly and voluntarily waived his appellate and post-conviction
rights.
Third, Defendant presents no evidence to suggest that
enforcing the waiver would result in a miscarriage of justice. See
United
States
v.
Elliott,
264
F.3d
1171,
1173
(10th
Cir.
2001)(listing four situations where enforcing an appellate waiver
would result in a miscarriage of justice). Consequently, the Court
concludes
the
waiver
of
appellate
and
post-conviction
rights
executed by Defendant is enforceable.
Additionally, the Court finds Defendant’s petition must fail
as the record does not indicate that Defendant exhausted his
administrative remedies with the BOP.
See
United States v.
Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994)(“Defendant must bring
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his request for sentence credit to the Bureau of Prisons in the
first instance and thereafter seek judicial review of the Bureau’s
determination.”).
Finally,
Defendant’s
claim
of
ineffective
assistance of counsel based on counsel’s failure to have this Court
order credit for his time served awaiting sentencing must fail as
counsel cannot be deemed ineffective for failing to ask this Court
to do something beyond its jurisdiction.
In United States v.
Wilson, 503 U.S. 329, 334 (1992), the Supreme Court held that a
district court cannot apply the credit for prior custody provisions
of 18 U.S.C. § 3585(b) at sentencing.
Rather, it is the Attorney
General, through the Bureau of Prisons, who has the administrative
responsibility to compute a defendant’s sentence after sentencing.
Id. at 335 and see Jenkins, 38 F.3d at 1144 (citing Wilson, the
Tenth Circuit stated that “a district court is without jurisdiction
to award a sentence credit at sentencing.”).
Based on the foregoing reasons, Defendant’s Motion to Vacate,
Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Dkt. No. 1)
is denied.
It is so ordered this 5th day of October, 2012.
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