United States District Court, Western District of North Carolina, Statesville Division
Richard L. Voorhees United States District Judge
THIS MATTER is before the Court on consideration of Respondent’s motion to dismiss Petitioner’s pro se motion to vacate, set aside or correct sentence which he filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, Respondent’s motion to dismiss will be granted.
Petitioner and others were charged by the grand jury in this district in a second superseding bill of indictment with one count of conspiring to possess with intent to distribute at least 5 kilograms of cocaine, and at least 50 grams of cocaine base, or crack cocaine, and also at least 1000 kilograms of marijuana, all in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One). (5:09-cr-00025, Doc. No. 64: Second Superseding Indictment).
Petitioner was appointed counsel and soon entered into a written plea agreement with the Government wherein he agreed to plead guilty to conspiracy to possess and distribute cocaine and he admitted that the amount of cocaine that was involved in the conspiracy and reasonably foreseeable to him was in excess of five (5) kilograms but less than fifteen (15) kilograms. (Id., Doc. No. 124: Plea Agreement). In the plea agreement, Petitioner also specifically chose to waive his right to contest his conviction or sentence on direct appeal or collaterally, except on claims of prosecutorial misconduct and/or ineffective assistance of counsel. Petitioner appeared with counsel before U.S. Magistrate Judge David S. Cayer for his Plea and Rule 11 hearing and he was placed under oath. The relevant terms of the plea agreement were reviewed with Petitioner and he admitted that he understood and agreed with the terms of his plea agreement, including his decision to waive his right to directly appeal or collaterally attack his conviction or sentence except for the two exceptions noted above. Petitioner’s plea of guilty was accepted after the court found that it was knowingly and voluntarily entered. (Id., Doc. No. 125: Acceptance and Entry of Guilty Plea).
The U.S. Probation Office prepared a presentence investigation report (PSR) in advance of Petitioner’s sentencing hearing. The probation officer calculated a total offense level of 29 and a criminal history category III, yielding a Guidelines range of 108 to 135-months’ imprisonment, however because the statutory minimum term was 120-months, the Guidelines range increased to 120 to 135 months in prison. See U.S. Sentencing Guidelines Manual (USSG) § 5G1.1(c)(2) (2010). (Id., Doc. 166: PSR ¶ 101). After reviewing the PSR with his attorney, Petitioner appeared with counsel for his sentencing hearing and he was sentenced to a term of 120-months’ imprisonment and he did not appeal. (Id., Doc. No. 173: Judgment in a Criminal Case). This § 2255 proceeding follows and Petitioner’s claims will be discussed below.
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to examine motions to vacate, along with “any attached exhibits and the record of prior proceedings” in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
Petitioner raises two claims for relief in his § 2255 motion. First, Petitioner argues that that this Court violated his Fifth and Sixth Amendment rights by erroneously ruling that Petitioner did not qualify for a safety valve reduction under 18 U.S.C. § 3553(f) and USSG § 5C1.2. Secondly, Petitioner argues that he received ineffective assistance of counsel because his attorney failed to object to the use of two criminal history points that were assessed based on the probation officer’s finding that Petitioner was on state probation at the time he committed the offense that was charged in Count One of his federal indictment. (5:11-cv-153, Doc. No. 1: Section 2255 motion).
A. First Claim (Safety Valve)
The Respondent argues that Petitioner waived his right to present his first claim based on the express terms of his plea agreement. Specifically, Respondent argues that Petitioner’s challenge to this Court’s decision on whether to grant a safety valve reduction is expressly prohibited by Petitioner’s agreement to waive his right to contest his sentence, except on claims of prosecutorial misconduct and/or ineffective assistance of counsel. (Id., Doc. No. 7: Government’s Response at 4).
A defendant may waive his right to contest his sentence in a collateral proceeding if the decision to waive his rights is knowingly and voluntarily made. See United States Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (“[A] criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.”).
In his memorandum in support of his § 2255 motion, Petitioner plainly states that he “does not challenge the [validity] of his appeal waiver, rather it’s [sic] scope.” (Id., Doc. No. 1-1 at 4). Importantly, Petitioner concedes that he validly waived his right to contest his sentence, but he nevertheless disagrees that the challenge to the ...