Campbell v. United States of America

Filing 15

ORDER DIRECTING SERVICE Documents served electronically to United States of America on 4/8/2019. Within 45 days after such service, the United States shall file and serve an answer in accordance with Rule 5 of the Rules Governing Section 2255 Cases. Signed by U.S. District Judge John C Coughenour. (TH) (cc: Petitioner via USPS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KEVIN CAMPBELL,

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CASE NO. C18-0274-JCC
Petitioner,

ORDER

v.
UNITED STATES OF AMERICA,

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Respondent.

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This matter comes before the Court on Petitioner Kevin Campbell’s motion to vacate, set

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aside, or correct his sentence, under 28 U.S.C. § 2255, and motion to appoint counsel (Dkt. No.

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14). Petitioner pled guilty to distribution of controlled substances. See United States v. Campbell,

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Case No. CR17-0025-JCC, Dkt. Nos. 9, 12 (W.D. Wash. 2017). On August 8, 2017, Petitioner

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was sentenced to 72 months of imprisonment, followed by 3 years of supervised release. Id. at

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Dkt. No. 36.

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Before directing service and answer to a habeas corpus petition, the Court must determine

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whether the motion, the files, and the records of the case “conclusively show that the prisoner is

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entitled to no relief.” 28 U.S.C. § 2255(b). In his plea agreement, Petitioner waived “[a]ny right

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to bring a collateral attack against the conviction and sentence, including any restitution order

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imposed, except as it may relate to the effectiveness of legal representation.” United States v.

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Campbell, Case No. CR17-0025-JCC, Dkt. No. 9 at 12 (W.D. Wash. 2017). Petitioner raises four
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potential grounds for relief—(1) involuntariness of his plea agreement; (2) ineffective assistance

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of counsel; (3) unconstitutional sentence imposed; and (4) “post-incarceration rehabilitation.”

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(See Dkt. No. 14.)

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The Ninth Circuit has upheld the enforceability of a knowing and voluntary waiver of the

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right to bring a collateral attack for pre-plea constitutional violations. United States v. Abarca,

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985 F.2d 1012, 1014 (9th Cir. 1993). However, such a waiver does not preclude a § 2255 claim

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for involuntariness of waiver. Id. The record does not conclusively show that Petitioner is

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entitled to no relief on this ground. Therefore, service on Petitioner’s involuntariness of waiver

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claim is proper.

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Petitioner’s plea agreement waives any right to bring a collateral attack, “except as it may

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relate to the effectiveness of legal representation.” See United States v. Campbell, Case No.

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CR17-0025-JCC, Dkt. No. 9 at 12 (W.D. Wash. 2017). With that ground for relief, the record

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does not conclusively show that Petitioner is entitled to no relief. Therefore, service on

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Petitioner’s ineffective assistance of counsel claim is proper.

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Although a petitioner is generally precluded from challenging sentencing errors on a

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§ 2255 petition, “[e]xception has frequently been made for constitutional questions.” See United

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States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994). Because Petitioner’s third ground raises

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the constitutionality of a component of his sentence, service on ground three is proper.

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Petitioner’s fourth ground is titled “post-incarceration rehabilitation.” (See Dkt. No. 14.)

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On this ground, Petitioner appears to argue that the Court should consider his good behavior

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during incarceration when it resentences Petitioner. (Id. at 30–31.) The Court does not view this

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as a ground for relief under § 2255, but a reason to reduce Petitioner’s sentence, should the Court

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grant Petitioner’s underlying § 2255 motion. Therefore, this argument is untimely. If the Court

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grants Petitioner’s § 2255 motion, Petitioner should raise this argument at a later proceeding.

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Therefore, service on ground four is improper and this ground is DISMISSED.

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Finally, Petitioner requests the appointment of counsel and an evidentiary hearing. (See
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Dkt. No. 14-1 at 31.) There is no general right to have counsel appointed in cases brought under

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28 U.S.C. § 2255 unless an evidentiary hearing is required. See Terrovona v. Kincheloe, 852

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F.2d 424, 429 (9th Cir. 1988). The Court may exercise its discretion to appoint counsel for a

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financially eligible individual where the “interests of justice so require.” 18 U.S.C. § 3006A. At

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this time, the Court does not find that an evidentiary hearing will be necessary and therefore,

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Petitioner’s request to appoint counsel is DENIED.

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Accordingly, the Court ORDERS as follows:

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1. The Clerk shall direct a copy of this order to Petitioner.

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2. If not previously accomplished, electronic posting of this order and petition shall

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effect service upon the United States Attorney of copies of the § 2255 motion and of

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all documents in support thereof.

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3. Within 45 days after such service, the United States shall file and serve an answer in

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accordance with Rule 5 of the Rules Governing Section 2255 Cases in United States

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District Courts. As part of such answer, the United States should state its position as

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to whether an evidentiary hearing is necessary, whether there is any issue as to abuse

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or delay under Rule 9, and whether Petitioner’s motion is barred by the statute of

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limitations.

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4. On the face of the answer, the United States shall note the answer for consideration

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on the fourth Friday after it is filed, and the Clerk shall note the answer accordingly.

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Petitioner may file and serve a reply to the answer no later than that noting date.

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5. The Clerk is DIRECTED to terminate Docket Number 7 as moot.

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DATED this 8th day of April 2019.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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