Savage v. United States of America

Filing 2

ORDER denying defendant's motions for relief under 28 U.S.C. 2255; a certificate of appealability is also denied, as the court concludes jurists of reason would not find it debatable whether the motion states a valid claim of the denial of a constitutional right. Signed by Honorable Joe Heaton on 12/16/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,
Plaintiff,

NO. CR-14-00158-001-HE
NO. CIV-16-0082-HE

vs.

NO. CR-14-00257-001-HE

TAWNY BRYCE SAVAGE,

NO. CIV-16-0260-HE

Defendant.
ORDER

Defendant Tawny Bryce Savage ("Savage") has filed motions to vacate, set aside, or
correct her sentences under 28 U.S.C. § 2255. In 2014, Savage was convicted of three

criminal charges in two cases. In Case No. CR-14-158, she was convicted ofpossession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and of
possessing a firearm after conviction of a felony, in violation of 18 U.S.C. § 922(g)(1). In
Case No. 14-0257, she was convicted oftheft ofgovernment funds, in violation of 18 U.S.C.

§ 641. Both convictions were based on guilty pleas. Both pleas were pursuant to plea

agreements in which Savage waived her right to appeal or to collaterally challenge the
convictions or sentences. The waiver provisions specifically reference motions pursuant to
28 U.S.C. § 2255.

Ms. Savage commenced a direct appeal but later withdrew it after the government
moved to enforce the appeal waiver. In response to her current motions, the government has
similarly moved to enforce the waiver of collateral challenge rights in the plea agreements.

A claim brought by collateral challenge is subject to a waiver if(1) the claim is within

the scope of the waiver, (2) the defendant knowingly and voluntarily waived her rights to

collateral challenge, and (3) enforcing the waiver would not result in a miscarriage ofjustice.
U.S. V. Viera. 674 F.3d 1214, 1217 (10th Cir. 2012).
Plaintiffs motions allege ineffective assistance of trial and appellate counsel as to a

broad range of events ranging from the investigation stage of the case to sentencing and
appeal proceedings. The claims are plainly within the scope of the waivers. Ineffective
assistance of counsel claims which challenge the validity of the plea or of the waiver,

however, are not subject to waiver. U.S. v. Cockerham. 237 F.3d 1179, 1187 (10th Cir.
2001). Here, Savage claims she did not understand the elements of the charges against her
or the consequences of waiving her rights of appeal or collateral challenge because her
counsel did not explain those things to her. She asserts her counsel did not advise her about
conditional pleas, nolo contendere pleas, or guilty pleas at to some charges but not others.
The government has submitted an affidavit from defendant's trial counsel which

directly contradicts defendant's allegations. While that affidavit is not dispositive of the
issue, it is clear from the proceedings on the record that the claims of confusion or lack of
knowledge which defendant now asserts, allegedly due to her counsel's ineffective

performance, are not supported. Defendant's suggestion that she did not understand the
elements of the offenses or the nature of appeal waiver is flatly contradicted by the record.
The plea agreements which defendant signed recite that they were entered into freely and

voluntarily. They identify the elements of the offenses to which she was pleading. They

explicitly describe the nature of the appeal and collateral challenge waivers involved,
including, as noted above, specific reference to § 2255 motions as being within the scope of
the waiver.

The court's plea colloquy with defendant confirmed that the defendant understood the
nature of the charges against her and that she was pleading, and entering into the plea
agreements, knowingly and voluntarily. The nature and consequences of a guilty plea and

the nature of the appeal/collateral challenge waiver was explained to her and she confirmed
her understanding of them. The court specifically explained that defendant was giving up

her right to collaterally challenge her convictions and sentences in certain circumstances,'
and she confirmed she understood that. She was questioned as to the factual basis for her
pleas, confirmed that she committed acts satisfying the elements of the charges, and that she
did, in fact, commit the offenses she was charged with. Defendant further indicated that she

was aware of and understood the waivers of her rights to appeal or collaterally challenge her
conviction or sentence.

To the extent that plaintiff relies on her counsel's failure to advise her about
conditional or nolo pleas, there is no basis suggested for concluding that such pleas would
have been available here nor is there any apparent basis for concluding that the absence of
a discussion ofsuch pleas with her counsel somehow rendered involuntary or unknowing the
'Under theplea agreements, appeal and collateral challenge rights are waivedso long as
the court sentences the defendant within or below the guideline range calculated under the
Sentencing Guidelines. Defendant's sentences were within the guideline range and she does not
appear to challenge thatfact.

guilty plea she did enter.

In short, there is no persuasive basis suggested here for concluding defendant's
counsel's performance rendered her pleas of guilty or her agreements to waive her collateral
challenge rights unknowing or involuntary. Further, defendant has not shown that enforcing
the waiver would result in a miscarriage ofjustice. See Viera. 674 F.3d at 1219 (detailing
the limited situations in which a miscarriage ofjustice occurs). Defendant's waivers of her

right to bring a collateral challenge via a § 2255 motion will therefore be enforced.
Defendant's motions for reliefunder 28 U.S.C. § 2255 [Doc. Nos. 69 &71 in Case No.
14-158 and Nos. 32 & 34 in Case No. 14-257] are therefore DENIED. A certificate of

appealability is also DENIED, as the court concludes jurists of reason would not find it
debatable whether the motion states a valid claim ofthe denial of a constitutional right. See
Slack V. McDaniel. 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.

Dated this

day of December, 2016.

JOE H^ATON
CHIEF U.S. DISTRICT JUDGE