Richardson v. United States of America
ORDER denying defendant Richardson's motion to vacate pursuant to 28 U.S.C. 2255; the court also denies a certificate of appealability...see order for specifics. Signed by Honorable Joe Heaton on 12/20/2016. (cla)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
TOMMY LYNN RICHARDSON,
Defendant Tommy Lynn Richardson has filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255.
The motion is directed to the restitution
obligation imposed in connection with his conviction for conspiracy to commit wire fraud.
Richardson was ordered to pay restitution in the amount of $1,698,117.50. That obligation
was joint and several with the restitution obligation of his co-defendants. In his motion,
defendant argues that his counsel was ineffective in not challenging the restitution award and
that the award was excessive in amount or otherwise contrary to law.
Mr. Richardson was convicted based on a guilty plea to the conspiracy charge. His
guilty plea was pursuant to a plea agreement with the government in which, among other
things, Mr. Richardson agreed that restitution would be ordered as to all victims of
defendant's "relevant conduct." Plea Agreement, Doc. #49, *If 4. Under the plea agreement,
he also agreed to waive his right to appeal or to collaterally challenge his sentence,
"including any restitution," so long as the sentence did not exceed the advisory guideline
range. A § 2255 motion was specifically referenced as one of the types of collateral
challenge which would be barred by the appeal waiver. Plea Agreement, ^ 8. Defendant's
sentence of imprisonment was below the guideline range.
In its response to the motion, the government invokes defendant's waiver ofcollateral
challenge rights. It also argues Mr. Richardson waived any objection to the restitution award,
even if he is permitted to pursue a challenge.
The court concludes the government's position as to the waiver ofcollateral challenge
rights is correct and that defendant's motion must therefore be denied.
When a defendant waives in a plea agreement his right to collaterally challenge some
aspect of his conviction, the court must determine "(1) whether the disputed [claim] falls
within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result
in a miscarriage ofjustice." U. S. v. Hahn. 359 F.3d 1315,1325 (10th Cir. 2004). As noted
above, the waiver language in the plea agreement specifically referenced § 2255 motions as
being within its scope. Further, it specifically identified any restitution award as being within
the scope of the waiver. The waiver agreement was plainly intended to reach and preclude,
in the appropriate circumstances, a defendant's § 2255 motion challenging restitution.
A plea agreement's waiver of post-conviction challenges does not waive the right to
bring a challenge based on ineffective assistance of counsel claims directed to the validity
of the plea or the waiver. United States v. Viera. 674 F.3d 1214 (10th Cir. 2012); United
States V. Cockerham. 237 F.3d 1179, 1187 (10th Cir. 2001). But Mr. Richardson's motion
does not attempt to make that showing. Rather, his arguments go only to the validity ofthe
restitution order and his counsel's efforts in connection with that.
As a result, the court
concludes Mr. Richardson's claim asserted here is within the scope ofhis waiver ofcollateral
There is no basis here for concluding that Mr. Richardson's agreement to the waiver
provisions of the plea agreement was anything other than knowing and voluntary. The plea
agreement itselfso recites and its description ofthe pertinent waiver is clear. Further, during
the plea colloquy, the attorney for the government described the waiver of appellate and
collateral challenge rights and both the defendant and his counsel confirmed that description
was accurate. The court further explained the waiver provisions to defendant and he
confirmed that he understood them. Plea Transcript, Doc. #139-1 at 13-14.' Defendant
knowingly and voluntarily waived his collateral challenge rights.
Finally, there is no basis here for concluding that enforcement of the waiver would
result in a miscarriage of justice. It is not altogether clear what Mr. Richardson views as
being a "miscarriage ofjustice." He suggests that the award was somehow unauthorized by
statute, but the pertinent restitution statute plainly authorizes full restitution to the victims of
the offense. 18 U.S.C. § 3663A. He was convicted of conspiracy to commit wire fraud and
he offers no basis for concluding the losses that were the basis for the award were somehow
other than within the scope ofthe conspiracy. Further, ifthere is any question as to the scope
^Page references are to the pagination in the CM/ECF system.
of the offense of conviction, the plea agreement makes clear that Mr. Richardson agreed to
pay restitution to the extent of "relevant conduct" as determined by the Guidelines. Plea
Agreement, ]f 4. Such an agreement is specifically contemplated by statute. 18 U.S.C. §
3663A(a)(3). There is no basis here for concluding that enforcement of the waiver would
result in a miscarriage ofjustice.
In short, Mr. Richardson has not established a basis for ignoring his waiver of
collateral challenge rights and the waiver will be enforced. A detailed analysis of whether
Mr. Richardson also waived any substantive claim is therefore unnecessary.^
Defendant Richardson's motion to vacate pursuant to 28 U.S.C. § 2255 [Doc. #135]
is DENIED. The court also denies a certificate of appealability, as it concludes defendant
has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C.
IT IS SO ORDERED.
Dated this May ofDecember, 2016.
U.S. DISTRICT JUDGE
^The recorddoes, however, make clearthatdefendant's counsel raisedan objection to the
loss amounts in the PSR that were the basisfor the restitution award, but withdrew them at the time
ofthe sentencing hearing. Mr. Richardson concurred in open court and on the record with that
decision. See PSR at 5-54 [Doc. #106] and Transcript ofSentencing Hearing [Doc. #129-2] at 4-5.
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