Chavez v. USA
MEMORANDUM DECISION and ORDER Denying Petitioner's Motion Under 28 U.S.C. 2255. Signed by Judge Ted Stewart on 10/04/2012. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MIGUEL ANGEL CHAVEZ,
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Civil Case No. 2:12-CV-110 TS
Criminal Case No. 2:09-CR-784
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 Petitioner’s Motion.
Petitioner was named, along with several co-defendants, in an Indictment on October 14,
2009, charging him with manufacture of a controlled substance by cultivation and conspiracy to
manufacture a controlled substance by cultivation. Petitioner was subsequently named in a
Superseding Indictment on May 26, 2010, which added a count for possession of a firearm in
furtherance of a drug trafficking crime.
On November 15, 2010, the day he was scheduled to go to trial, Petitioner pleaded guilty
to each count of the Superseding Indictment. On February 25, 2011, Petitioner was sentenced to
a term of imprisonment of 180 months. Judgment was entered on February 28, 2011. Petitioner
did not seek direct appeal, but did timely file his § 2255 Motion on January 23, 2012.
Petitioner raises the following arguments in his motion: (1) that the government did not
provide certain evidence until three weeks prior to trial; (2) there were no plea negotiations
before he signed the plea agreement; (3) he was forced to enter the plea; (4) he never had a
weapon in his possession; and (5) an unfair sentencing disparity existed between him and his codefendants.
The government argues that all of Petitioner’s arguments are barred by the collateral
appeal waiver contained in Petitioner’s plea agreement. The Court agrees.
The Tenth Circuit has established a three-part test to interpret appeal waivers, based upon
contract principles.1 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.”2 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
United States v. Hahn, 359 F.3d 1315, 1324-25 (10th Cir. 2004) (en banc) (“[C]ontract
principles govern plea agreements.”).
United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005) (quoting Hahn, 359 F.3d
in favor of a defendant’s appellate rights.’”3 Moreover, the Court is to “hold a defendant to the
terms of a lawful plea agreement.”4 With these principles in mind, the Court proceeds with its
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.”5
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. Such a waiver does not prohibit ineffective assistance of
counsel claims challenging the validity of the plea or the waiver.6 However, Petitioner raises no
ineffective assistance claims. Therefore, the Court finds that all of Petitioner’s claims fall within
the scope of the waiver.
Even if Petitioner’s claims relating to the plea could be construed as claims for ineffective
assistance, these claims fail. The plea colloquy reflects that Petitioner entered his plea knowingly
and voluntarily. Therefore, the Court rejects Petitioner’s plea-based claims on the merits.
Id. (internal citations and quotations omitted).
United States v. Atterberry, 144 F.3d 1299 (10th Cir. 1998).
Case No. 2:09-CR-784 TS, Docket No. 303, at 5.
United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).
Knowing and Voluntary Waiver
The Tenth Circuit has held that it will “only enforce appeal waivers that defendants enter
into knowingly and voluntarily.”7 In determining whether an appellate waiver is knowing and
voluntary, the Court looks to two factors: (1) “whether the language of the plea agreement states
that the defendant entered the agreement knowingly and voluntarily,”8 and (2) whether there was
“an adequate Federal Rule of Criminal Procedure 11 colloquy.”9
A review of the transcript from the change of plea hearing and the Statement in Advance
of Plea confirm that Petitioner was specifically informed of the waiver of his collateral appeal
rights, that he was aware of the provision of the plea agreement waiving those rights, and that he
waived those rights knowingly and voluntarily.
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.”10
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
Hahn, 359 F.3d at 1328 (citing United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir.
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.”).
Id. (internal citations omitted).
Id. at 1327 (internal citations omitted).
is otherwise unlawful and seriously affects the fairness, integrity, or public
reputation of judicial proceedings.11
Petitioner bears the burden of establishing a miscarriage of justice.12
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
deny Petitioner’s Motion.
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 2:12-CV-110 TS)
is DENIED for the reasons set forth above. 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. 2:12-CV-110 TS forthwith.
Porter, 405 F.3d at 1143 (citing Hahn, 359 F.3d at 1327).
United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).
DATED October 4, 2012.
BY THE COURT:
United States District Judge
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