United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
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. (Transcript of Plea Hearing (“Plea
Tr.”) (DE 82)). On March 8, 2017, petitioner was
sentenced to 120 months in prison. (Judgment (DE 74)).
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.
Standard of Review
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
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.
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. ...