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Martin v. United States

United States District Court, E.D. North Carolina, Western Division

May 17, 2019




         This matter comes before the court on petitioner's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (DE 92), and respondent's motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 99). The issues raised have been fully briefed, and in this posture are ripe for decision. For the reasons that follow, the court denies petitioner's motion, allows respondent's motion, and denies a certificate of appealability.


         On March 18, 2015, petitioner was indicted for one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). With the benefit of a plea agreement, petitioner pleaded guilty to possession of child pornography on August 16, 2016.[1] (Transcript of Plea Hearing (“Plea Tr.”) (DE 82)). On March 8, 2017, petitioner was sentenced to 120 months in prison. (Judgment (DE 74)).

         Petitioner appealed his conviction to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”). The Fourth Circuit dismissed petitioner's appeal, concluding that petitioner executed a valid waiver of his right to appeal. The United States Supreme Court (“Supreme Court”) denied certiorari. On December 13, 2018, petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Thereafter, respondent moved to dismiss petitioner's § 2255 petition.


         A. Standard of Review

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.

         B. Analysis

         1. Waiver

         “[A] criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). The court “will enforce the waiver if it is valid and the issue appealed is within the scope of the waiver.” United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). “In the absence of extraordinary circumstances, a properly conducted Rule 11 colloquy establishes the validity of the waiver.” Id. (citing Lemaster, 403 F.3d at 221); United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). Errors are generally within the scope of a waiver of collateral review unless the issues raised “‘could not have reasonably contemplated' when the plea agreement was executed.” United States v. Poindexter, 492 F.3d 263, 272 (4th Cir. 2007) (quoting United States v. Blick, 408 F.3d 162, 172 (4th Cir. 2005)); see Copeland, 707 F.3d at 529.[2]

         Petitioner and respondent entered into a plea bargain, where respondent agreed to dismiss count one of the indictment and recommend a term of imprisonment of 120 months. (Plea Agreement (DE 58) at 6). In exchange, petitioner agreed to plead guilty to count two of the indictment and

waive knowingly and expressly all rights . . . to appeal the conviction and whatever sentence is imposed on any ground, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to [petitioner] at the time of [petitioner's] guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.

(Plea Agreement (DE 58) at 1-2). At arraignment, petitioner affirmed that he waived his rights pursuant to his plea agreement. (See Plea Tr. (DE 82) 20:20-23:8). The court concludes petitioner knowingly and voluntarily waived his right to collaterally attack his conviction. ...

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