Chisholm v. USA
Filing
2
MEMORANDUM DECISION denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ; denying Petitioner a certificate of appealability. Signed by Judge Ted Stewart on 02/20/2013. (asp)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
CRAIG JOHN CHISHOLM,
Petitioner,
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY
vs.
UNITED STATES OF AMERICA,
Civil Case No. 1:13-CV-23 TS
Respondent.
Criminal Case No. 1:10-CR-84 TS
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny the Motion.
I. BACKGROUND
On July 21, 2010, Petitioner Craig John Chisholm was charged in an Indictment with
possession of methamphetamine with intent to distribute, possession of heroin with intent to
distribute, possession of a firearm in furtherance of a drug trafficking offense, and felon in
possession of a firearm. On August 18, 2010, Petitioner was named in a Superseding Indictment,
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which contained additional charges of possession of methamphetamine with intent to distribute,
possession of a firearm in furtherance of a drug trafficking offense, and felon in possession of a
firearm. A Felony Information was filed on August 31, 2011, charging Defendant with being a
felon in possession of a firearm, possession of methamphetamine with intent to distribute, and
possession of a firearm in furtherance of a drug trafficking offense.
Petitioner pleaded guilty to the charges contained in the Felony Information on August
31, 2011. As part of his plea agreement, Petitioner “knowingly, voluntarily, and expressly
waive[d] [his] right to challenge [his] sentence, and the manner in which the sentence is
determined, in any collateral review motion, writ or other procedure, including but not limited to
a motion brought under 28 U.S.C. § 2255.”1
Petitioner was sentenced, on January 26, 2012, to a term of imprisonment of 200 months.
Judgment was entered the following day. Petitioner did not pursue direct appeal. The instant
Motion was received by the Court on January 30, 2013.
II. DISCUSSION
Petitioner raises three arguments in his Motion: (1) his sentence is unconstitutional; (2) he
received ineffective assistance of counsel; and (3) his conviction and sentence violate the First,
Fourth, Fifth, Sixth, and Eighth Amendments of the United States Constitution. For the reasons
stated below, the Court finds that all of Petitioner’s claims are barred by the collateral appeal
waiver contained in his plea agreement and must be dismissed.
1
Case No. 1:10-CR-84 TS, Docket No. 67, at 5.
2
The Tenth Circuit has established a three-part test based upon contract principles to
interpret appeal waivers.2 The Court is to consider “(1) whether the disputed appeal 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 of
justice.”3 The Tenth Circuit further clarified that a court is to “strictly construe the scope of
appellate waivers and ‘any ambiguities in these agreements are read against the Government and
in favor of a defendant’s appellate rights.’”4 Moreover, the Court is to “hold a defendant to the
terms of a lawful plea agreement.”5 With these principles in mind, the Court proceeds with its
analysis.
1.
Scope of Appeal Waiver
Petitioner signed a broad waiver of appellate rights, which included the waiver of his
“right to challenge [his] sentence, and the manner in which the sentence is determined, in any
collateral review motion, writ or other procedure, including but not limited to a motion brought
under 28 U.S.C. § 2255.”6
2
United States v. Hahn, 359 F.3d 1315, 1324-25 (10th Cir. 2004) (en banc) (“[C]ontract
principles govern plea agreements.”).
3
United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005) (quoting Hahn, 359 F.3d
at 1325).
4
Id. (internal citations and quotations omitted).
5
United States v. Atterberry, 144 F.3d 1299 (10th Cir. 1998).
6
Case No. 1:10-CR-84 TS, Docket No. 67, at 5.
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The Court finds that the language of the plea agreement is clear and unequivocal.
Petitioner waived any right to bring a collateral attack on his sentence, including a motion
brought pursuant to 28 U.S.C. § 2255. Thus, Petitioner’s entire Motion would be barred by the
language of this waiver.
The Court recognizes, however, that such collateral appeal waivers do not prohibit
ineffective assistance of counsel claims challenging the validity of the plea or the waiver.7
Petitioner’s second claim challenges the effectiveness of his counsel “during the pretrial, plea,
and sentencing.”8 Thus, there is the potential that at least some portion of this claim survives the
application of the collateral appeal waiver.
A close review of Petitioner’s ineffective assistance claim, however, reveals that it falls
short of what is required to come within the Cockerham exception. Petitioner’s ineffective
assistance claim states, in full:
Counsel did not investigate, develop a defense strategy, argue on [my] behalf at
sentencing, and spent very minimal time with defendant. Performance with
respect to the motion and pleadings was insufficient and fell below professional
standards. He made unethical comments that did irreparable damage to the
proceedings, ultimately influencing the outcome.9
Considering this statement, the Court finds that it does not constitute a claim of
ineffective assistance of counsel challenging the validity of the plea or the waiver. Petitioner
does not appear to take issue with counsel’s performance with regard to the plea or the waiver,
7
United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).
8
Case No. 1:13-CV-23 TS, Docket No. 1, at 4.
9
Id.
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except to make the general statement that counsel did not investigate or develop a defense
strategy. Therefore, the Court finds that all of Petitioner’s claims fall within the scope of the
collateral appeal waiver. Even if Petitioner’s second claim falls within the Cockerham
exception, Petitioner’s allegations of ineffective assistance are so conclusory that they could not
support a claim of ineffective assistance.
2.
Knowing and Voluntary Waiver
The Tenth Circuit has held that it will “only enforce appeal waivers that defendants enter
into knowingly and voluntarily.”10 In determining whether an appellate waiver is knowing and
voluntary, the Court looks at: (1) “whether the language of the plea agreement states that the
defendant entered the agreement knowingly and voluntarily,”11 and (2) whether there was “an
adequate Federal Rule of Criminal Procedure 11 colloquy.”12
Reviewing these items, the Court finds that Petitioner’s collateral appeal waiver was
knowing and voluntary, and Petitioner makes no arguments to the contrary.
3.
Miscarriage of Justice
The third prong of the appellate waiver enforcement analysis “requires the court to
determine whether enforcing the waiver will result in a miscarriage of justice.”13
10
Hahn, 359 F.3d at 1328 (citing United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir.
2001)).
11
Id. at 1325 (citing Elliot, 264 F.3d at 1174 n.1) (“Indeed, the plea agreement, which he
signed, stated that [the defendant] ‘knowingly and voluntarily waive[d] the right’ to appeal.”).
12
Id. (internal citations omitted).
13
Id. at 1327 (internal citations omitted).
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To prove that enforcement of an appellate waiver would result in a miscarriage of
justice, a defendant must establish at least one of four circumstances: (1) reliance
by the court upon an impermissible factor such as race in imposition of the
sentence; (2) ineffective assistance of counsel in connection with the negotiation
of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver
is otherwise unlawful and seriously affects the fairness, integrity, or public
reputation of judicial proceedings.14
Petitioner bears the burden of establishing a miscarriage of justice.15
Petitioner does not raise any of these factors in his Motion and there is nothing in his
Motion to support such a finding. Therefore, the Court finds that enforcing the waiver would not
result in a miscarriage of justice. As a result, the Court will enforce Petitioner’s waiver and will
dismiss his Motion.
III. CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 1:13-CV-23 TS)
is DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 1:13-CV-23 TS forthwith.
14
Porter, 405 F.3d at 1143 (citing Hahn, 359 F.3d at 1327).
15
United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).
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DATED February 20, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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