Albers v. United States of America

Filing 2

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Derrick Jay Albers; mailed to Derrick Jay Albers #28849-064 FORREST CITY MED-FCC P O Box 3000 Unit B-2 Forrest City, AR 72336. Signed by Honorable Robin J. Cauthron on 6/1/16. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DERRICK J. ALBERS,
Defendant.

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Case Number CR-14-82-C
CIV-16-381-C

MEMORANDUM OPINION AND ORDER
Defendant has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. At the direction of the Court, Plaintiff filed a
response and this matter is now at issue. In his motion, Defendant raises four claims of
ineffective assistance of counsel: (1) failure to object to a four-level enhancement in the
presentence investigation report; (2) failure to object to the determination of loss and the
amount of restitution due; (3) failure to object to enhancement under USSG
§ 2B1.1(b)(10)(c); and (4) by causing Defendant to enter into an appellate waiver. In
response, Plaintiff asserts the waiver executed as part of the Plea Agreement bars each of
Plaintiff’s claims.
Because the Plea Agreement contains a waiver of the right to collaterally challenge
Defendant’s conviction, the Court must first determine its validity. Because ground four of
Defendant’s motion challenges the validity of the waiver, the Court’s analysis begins there.

The Tenth Circuit has set forth the standard to measure Defendant’s argument of
ineffective assistance under the circumstances of this case:
To prevail on his ineffective assistance claim, defendant must show that
he was prejudiced by his trial counsel’s allegedly deficient performance. In
the context of a guilty plea, this requires defendant to show that counsel’s
deficient performance “affected the outcome of the plea process” and “that
there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Miller v.
Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (quotation omitted), cert.
denied, 534 U.S. 1140, 122 S.Ct. 1092, 151 L.Ed.2d 990 (2002). Further,
defendant’s “mere allegation that he would have insisted on trial but for his
trial counsel’s errors, although necessary, is ultimately insufficient to entitle
him to relief. Rather, we look to the factual circumstances surrounding the
plea to determine whether [defendant] would have proceeded to trial.” Id.
(citation omitted). Specifically, while defendant is not required to prove a
reasonable probability that, but for counsel’s mistakes, he would have
prevailed at trial, the assessment of whether he would have changed his plea
depends in large part on a prediction of whether the outcome of the district
court proceedings would have been different if his counsel had not committed
the alleged errors. See id. at 1074-75.
United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002). Defendant offers no
evidence or argument to meet his obligation. Rather, Defendant’s claims of ineffective
assistance assertions focus solely on his understanding of the appellate waiver and counsel’s
alleged failure to properly explain its scope. Defendant argues that he understood the waiver
to permit him to challenge a sentence based on an improperly calculated guideline range.
Notably, Defendant does not argue in his motion that he would not have pleaded guilty, only
that he would have demanded a change to the waiver language. However, under the law set
out above, this is insufficient. Further, the Court notes that during the plea colloquy the Court
specifically advised Defendant that he was waiving the right to appeal if an error of law was

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made. Defendant clearly and unequivocally expressed his consent and understanding to that
statement:
[THE COURT:] Finally, I want to emphasize to you this waiver of
appeal. This is a very important right that shouldn’t be given up lightly. What
that means is if I should make an error of law in this case at sentencing or
otherwise, you’re giving up your right to take that error to a higher court and
ask that it be corrected.
You’re also giving up your right to come back to this Court by way of
habeas corpus and ask that it be corrected.
You’re also giving up your right to take advantage of any reduction in
guideline range imposed by the sentencing commission somewhere down the
line.
Is it your intent to give up those rights?
DEFENDANT: Yes, ma’am.
(Plea Tr. page 15, line 17 through page 16, line 4, Dkt. No. 126.) Therefore, the arguments
raised in ground four do not impact the validity of the waiver and do not warrant relief.
Having found that the alleged ineffectiveness of counsel does not provide a basis for
vacating the plea and thus ignoring the waiver contained in the Plea Agreement, the Court
turns to the impact of the waiver on the remainder of Defendant’s arguments. If the Court
finds the waiver of appellate and collateral attack rights applicable and enforceable,
Defendant’s motion may survive only if enforcing the waiver would cause a miscarriage of
justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir 2004).
In paragraph 8 of the Plea Agreement, Defendant agreed to give up any right to
“[a]ppeal or collaterally challenge his guilty plea . . . and any other aspect of hi[s]

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conviction . . . .” (Dkt. No. 56, p. 8.) Defendant’s present challenge is within the scope of
the waiver. See Hahn, 359 F.3d at 1325 (“The first prong of the analysis requires the court
to determine if the disputed appeal falls within the scope of the appellate waiver.”). The
issues Defendant presses in his motion are the type of issues governed by the terms of the
waiver.
Turning to the second Hahn prong, whether the waiver was knowing and voluntary,
the Court finds this prong is likewise met, as Defendant’s statements in the Petition to Enter
Plea of Guilty and at the change of plea hearing provide ample evidence the plea was
knowingly and voluntarily entered. Id. (“The second prong of the analysis requires the court
to ascertain whether the defendant knowingly and voluntarily waived his appellate rights.”).
Under questioning by the Court, Defendant testified that he understood the terms of the
agreement, that he understood the questions asked, and gave truthful answers to those
questions. Further, the Court specifically pointed out to Defendant that he was giving up his
right to appeal or collaterally challenge the conviction.

Defendant expressed his

understanding and agreement with those terms.
Finally, the third prong of Hahn considers whether enforcing the waiver will result in
a miscarriage of justice. Id. at 1327. As noted above, Defendant cannot show that he entered
into the Plea Agreement blindly or agreed to the waiver blindly. Rather, the evidence
demonstrating that Defendant willingly and knowingly entered into the Plea Agreement and
accompanying waiver is formidable. Accordingly, the Court finds that enforcement of the
waiver will not result in a miscarriage of justice.
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Defendant has not requested an evidentiary hearing, and the Court finds one
unnecessary because resolution of his arguments is possible on the existing record. See
United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000) (citing United States v.
Lopez, 100 F.3d 113, 119 (10th Cir. 1996)).
CONCLUSION
As set forth more fully herein, Defendant’s claims are barred by the terms of the
waiver included in the Plea Agreement. Accordingly, Defendant’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No.
136) is DENIED. A Judgment will enter accordingly.
IT IS SO ORDERED this 1st day of June, 2016.

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