MEMORANDUM AND ORDER

JULIE A. ROBINSON, Chief District Judge.

This matter is before the Court on Petitioner John Michael Devosha's pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 40). The government has responded.1 For the reasons explained in detail below, the Court dismisses in part and denies in part Devosha's motion without an evidentiary hearing.

I. Factual and Procedural Background

On December 18, 2014, Devosha was charged by indictment with attempted carjacking, in violation of 18 U.S.C. § 2119(1); carjacking, in violation of 18 U.S.C. § 2119(1); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).2 On May 13, 2015, Devosha was charged in a superseding indictment with the same three counts, plus two counts charging him with carrying, using, and possessing a firearm during and in relation to and in furtherance of a crime of violence, that is, the attempted carjacking and carjacking, in violation of 18 U.S.C. § 924(c).3

In a previous case, on September 25, 2013, Devosha was charged in a separate case in this District with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), based on conduct that occurred in December 2012 and May 2013.4 Devosha pleaded guilty to Count One pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement to 120 months' imprisonment, and was sentenced to 120 months' in accordance with the terms of the plea agreement.5

Devosha subsequently pleaded guilty to Count Two, carjacking, and Count Five, carrying, using, and possessing a firearm during and in relation to and in furtherance of a crime of violence.6 The factual basis of the plea agreement states as follows:

Under the terms of the Rule 11(c)(1)(C) plea agreement, the parties agreed to recommend a sentence of:

A Presentence Investigation Report ("PSIR") was prepared in anticipation of sentencing.9 Devosha's total offense level on the carjacking count was calculated at 27; with a criminal history category of VI, his Guideline range was 130 to 162 months' imprisonment.10 Per U.S.S.G. § 2K2.4, the PSIR calculated the 60-month statutory minimum on the § 924(c) charge, to be served consecutively to the term of imprisonment imposed in the carjacking count.11 The Court imposed a 120-month sentence on the carjacking count and a 60-month sentence on the § 924(c) count, both to be served consecutively with the term of imprisonment imposed in the District of Kansas case number 13-20100-KHV, in accordance with the terms set forth in the rule 11(c)(1)(C) plea agreement.12

Devosha did not file a direct appeal. This timely § 2255 motion followed.13

II. Standard

Section 2255 entitles a federal prisoner to relief if the court finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or [is] otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack."14 The court must hold an evidentiary hearing on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."15 A § 2255 petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.16 An evidentiary hearing is not necessary where the factual allegations are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.17

The Sixth Amendment guarantees that "[i]n all criminal prosecution, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."18 A successful claim of ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v. Washington.19 First, a defendant must show that his counsel's performance was deficient in that it "fell below an objective standard of reasonableness."20 To meet this first prong, a defendant must demonstrate that the omissions of his counsel fell "outside the wide range of professionally competent assistance."21 This standard is "highly demanding."22 Strategic or tactical decisions on the part of counsel are presumed correct, unless they were "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy."23 In all events, judicial scrutiny of the adequacy of attorney performance must be strongly deferential: "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."24 Moreover, the reasonableness of the challenged conduct must be evaluated from counsel's perspective at the time of the alleged error, and "every effort should be made to `eliminate the distorting effects of hindsight.'"25

Second, a defendant must also show that his counsel's deficient performance actually prejudiced his defense.26 To prevail on this prong, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."27 "A reasonable probability is a probability sufficient to undermine confidence in the outcome."28 This, in turn, requires the court to focus on "the question whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair."29

A defendant is entitled to the effective assistance of counsel during plea negotiations.30 "The performance prong of Strickland requires a defendant to show that counsel's representation fell below an objective standard of reasonableness."31 To show prejudice in the guilty plea context, the defendant must establish that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and insisted on going to trial."32

In all events, a defendant must demonstrate both Strickland prongs to establish a claim of ineffective assistance of counsel, and a failure to prove either one is dispositive.33 "The performance component need not be addressed first. `If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'"34

III. Discussion

A. Failure to File Motion to Dismiss Superseding Indictment

Devosha first contends that his counsel was ineffective for failure to seek dismissal of the Superseding Indictment because it was filed based on prosecutorial vindictiveness. Devosha argues that the government added additional charges in a Superseding Indictment during the course of plea negotiations "in order to insure [sic] that he received a harsher sentence."35 Specifically, Devosha contends that when the prosecutor learned that his counsel would seek a concurrent sentence to the sentence in D. Kan. 13-20100-KHV pursuant to U.S.S.G. § 5G1.3(b), she sought a Superseding Indictment adding two § 924(c) charges, which require a sentence consecutive to any other term of imprisonment.36

Typically, to succeed on a claim of vindictive prosecution, the defendant bears the burden and "must establish either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness."37 The Tenth Circuit defined the inquiry as "whether the prosecution engaged in conduct that would not have occurred but for the prosecution's desire to punish the defendant for exercising a specific legal right."38 If the defendant proves either element, the burden shifts to the government to justify its prosecutorial decision based on "legitimate, articulable, objective reasons. If the defendant fails to prove either element, the trial court need not address the government's justification for its prosecutorial decision. Merely by the appearance of vindictive motives, vindictiveness may not be presumed."39

However, the law distinguishes between prosecutorial vindictiveness occurring before trial and after trial. In Bordenkircher v. Hayes, the Supreme Court rejected any presumption of prosecutorial vindictiveness in the pre-trial setting of plea negotiations.40 Under that case, "the presumption is without application when a prosecutor offers a defendant a chance to plead guilty or face more serious charges, provided the prosecutor has probable cause on the more serious charges and the defendant is free to accept or reject the offer."41 "[A] prosecutor has full discretion to file additional charges—even relying on the same evidence—`based on' a defendant's decision to go to trial."42 As the Supreme Court has noted,

Here, Devosha bases his vindictive prosecution claim on the prosecutor's opting to add additional charges in the pretrial setting during plea negotiations, after his counsel argued that any sentence should run concurrent to the sentence imposed in D. Kan. 14-20100-KHV. A presumption of vindictiveness is not warranted as a matter of law by the events preceding the Superseding Indictment, as Devosha has not identified a protected right supporting an inference of vindictiveness.44 As the Supreme Court explained,

Examples of punishment after a defendant exercises such a protected right include imposition of a more severe penalty after retrial where a defendant successfully challenged a conviction,46 or where a prosecutor "ups the ante" by filing felony charges when a convicted misdemeanant exercises his statutory appellate right to trial de novo.47 By contrast, asserting an argument regarding application of the Sentencing Guidelines as part of plea negotiations does not constitute exercise of a constitutional or statutory right. Instead, filing additional § 924(c) charges was based on the government's evaluation of the evidence and pertinent law and constitutes "an exercise of prosecutorial discretion which cannot support a presumptive inference of vindictiveness."48

Nor has Devosha presented specific allegations of actual vindictiveness. The record provides no evidence of improper conduct by the prosecution in charging and negotiating with Devosha. "A prosecutorial decision is not vindictive if it is based upon the normal factors ordinarily considered in determining what course to pursue."49 In this case, Devosha's assertion that the prosecutor indicated she intended to seek a superseding indictment "to insure the defendant received a harsher sentence" is baseless because the government offered the same plea agreement before and after the superseding indictment was filed: a Rule 11(c)(1)(C) plea agreement of fifteen years, to be served consecutively to the term of imprisonment imposed in D. Kan. Case No. 13-20100-KHV. Further, as the government notes, the firearm used to commit the carjacking offenses was never recovered and the government took time to determine whether § 924(c) charges could be supported under these circumstances. Moreover, as explained below, Devosha's agreed-upon fifteen-year sentence was below the applicable Guideline range for the charges to which he pleaded guilty and well below the sentence he would have received had he pleaded guilty to the charges in the original indictment. Finally, Devosha's suggestion that the government's use of bold-face type in the plea agreement when outlining the consecutive term of imprisonment demonstrates vindictiveness is without merit. As the government notes, the terms of the simultaneous convictions were unusual and the bold type was meant to direct both Devosha's and the Court's attention to this portion of the agreement. Because Devosha cannot show either presumptive or actual vindictiveness, he cannot demonstrate that his counsel's performance in deciding not to move to dismiss the Superseding Indictment fell "outside the wide range of professionally competent assistance."50

Nor can Devosha demonstrate he was prejudiced by counsel's decision not to move to dismiss the Superseding Indictment, as his Rule 11(c)(1)(C) plea agreement for an agreed-upon sentence of fifteen years' total imprisonment was well below the sentence he would have received had he pleaded to the charges in the original Indictment. Specifically, based on charges of carjacking, attempted carjacking, and possession of a firearm by a convicted felon, Devosha would likely have been subject to a six-level enhancement under U.S.S.G. § 2B3.1(b)(2) because he "otherwise used" a firearm to smash the victim's passenger door window of her vehicle before he entered the vehicle and pointed the firearm at her.51 Thus, Devosha's total offense calculation would have been 33; with a criminal history category of VI, his Guideline range would have been 235-293 months.52

Moreover, the sentence for carjacking and attempted carjacking could not have been imposed concurrently to the sentence imposed in D. Kan. Case No. 13-20100-KHV. Under U.S.S.G. § 5G1.3, the term of imprisonment should be imposed concurrently if the conduct at issue is "relevant conduct" as defined in § 1B1.3.53 As the government points out, because carjacking is excluded under the grouping rules of § 3D1.2(d), it could only be considered relevant conduct to Devosha's conduct in D. Kan. Case No. 14-20100-KHV if the carjacking and attempted carjacking were committed "during the commission of the [prior conduct], or in the course of attempting to avoid detection or responsibility for the [prior conduct]."54 The conduct in D. Kan. Case No. 13-20100-KHV occurred in December 2012 and May 2013, whereas the attempted carjacking and carjacking in this case occurred in October 2013. While Devosha contends that he knew he was under indictment for the previous conduct, which apparently caused him to commit an attempted carjacking and carjacking even though he was not being pursued by the police at that time, the Court agrees with the government that there is no authority that the Sentencing Commission intended for the relevant conduct provision to apply under such attenuated circumstances. Accordingly, Devosha was not prejudiced by his counsel's decision not to move to dismiss the Superseding Indictment, and this claim must be denied.

B. Section 924(c)

Devosha pleaded guilty to 18 U.S.C. § 924(c)(1)(A), which prohibits using or carrying a firearm during "any crime of violence." For purposes of § 924(c), "crime of violence" means an offense that is a felony and if it fits one of § 924(c)(3)'s two definitions:

Courts commonly refer to subsection (A) as the "elements" clause and subsection (B) as the "residual" clause.56

Devosha challenges his § 924(c) conviction on the grounds that federal carjacking is not a crime of violence in light of Johnson v. United States, where the Supreme Court held the residual clause of § 924(e)(2)(B)(ii) is unconstitutionally vague.57 While Devosha's motion was pending, the Court issued Sessions v. Dimaya, where it struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague under the rule announced in Johnson.58 The Tenth Circuit has determined that the residual clause in § 924(c)(3)(B), which contains language identical to § 16(b), is also unconstitutional.59

The government argues that Devosha's collateral attack of his § 924(c) conviction based upon Johnson and its progeny falls within the scope of the appellate waiver provision in the plea agreement. In the agreement, Devosha waived the right to challenge his sentence in a collateral attack under § 2255, except as limited by United States v. Cockerham,60 18 U.S.C. § 3582(c)(2), and a motion brought under Fed. R. Civ. P. 60(b).61 The government seeks to enforce this waiver.

Generally, a knowing and voluntary waiver of § 2255 rights is enforceable.62 The Court considers, however, whether enforcing the waiver will result in a "miscarriage of justice."63 The Tenth Circuit recently held that a Johnson-based sentencing challenge would not entail a miscarriage of justice.64 In this case, Devosha agreed to relinquish his right to collaterally attack any sentence imposed in accordance wit this Rule 11(c)(1)(C) plea agreement, which includes any challenge under Johnson.65 Devosha's challenge to the use of carjacking as a predicate crime of violence under § 924(c) is a challenge to the lawfulness of his sentence, not to the lawfulness of his waiver. As such, it does not support a finding that enforcement of the waiver would result in a miscarriage of justice.66 Devosha entered into his collateral-challenge waiver knowingly and voluntarily, and "although the Supreme Court changed the law in Johnson, this change did not render defendant's waiver itself unlawful."67 Accordingly, the Court enforces Devosha's collateral challenge waiver.

Even without the waiver, however, Devosha would be ineligible for relief. The Tenth Circuit recently explained in a similar § 2255 habeas action involving carjacking as a predicate crime of violence to a § 924(c) charge that even though § 924(c)(3)(B) is unconstitutionally vague, because the residual clause only defines "crime of violence" and does not actually prohibit or punish any conduct, "the central question is whether [defendant] actually committed the offense of § 924(c)(1)(A)."68 The court concluded the defendant did so "because armed carjacking is still a `crime of violence' under § 924(c)(3)(A)."69 The court held that "intimidation under the carjacking statute also requires the use of physical force," and thus it is not reasonably debatable that is carjacking qualifies as a crime of violence under the elements or force clause in § 924(c)(3)(A).70

Devosha's related claim that counsel was ineffective because counsel should have sought a third continuance of the sentencing hearing and filed a brief challenging the constitutionality of § 924(c) is likewise unavailing. As Devosha concedes, at the time he was sentenced, counsel kept him abreast of the legal landscape regarding a conviction under § 924(c) with carjacking as the predicate crime of violence. Devosha cannot show that he was prejudiced by the decision to move forward with his sentencing hearing, as the Tenth Circuit has now decided the issue unfavorably to his claim. Because Devosha cannot show "there is a reasonable probability that, but for [his] counsel's unprofessional error[ ], the result of the proceeding would have been different,"71 this claim is also denied.

IV. Certificate of Appealability

Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.72 A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right."73 To satisfy this standard, the movant must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."74 For the reasons stated above, the Court finds that Devosha has not satisfied this standard and, therefore, denies a certificate of appealability as to its ruling on his § 2255 motion.

IT IS THEREFORE ORDERED BY THE COURT that Petitioner John Michael Devosha's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 40) is dismissed with respect to his § 924(c) challenge and denied with respect to his ineffective assistance of counsel claims; Devosha is also denied an evidentiary hearing and a certificate of appealability.

IT IS SO ORDERED.