MARK R. HORNAK, District Judge.
Defendant Michquel Curington pleaded guilty to one count of distribution of heroin and was sentenced to a term of 150 months imprisonment followed by 8 years of supervised release. See ECF No. 125. Just under one year after sentence was imposed, Mr. Curington filed a Motion to Vacate his guilty plea and correct his sentence under 28 U.S.C. § 2255. See ECF No. 130.
First, irrespective of Mr. Curington's § 2255 waiver, Mr. Curington's attempts to challenge the validity of his state conviction in a § 2255 petition are barred by Daniels v. United States, 532 U.S. 374, 382 (2001). In Daniels, the Supreme Court held that (with one limited exception) a defendant may not "challenge his federal sentence through a motion under 28 U.S.C. § 2255 on the ground that his prior convictions were unconstitutionally obtained." Daniels, 532 U.S. at 376. As Mr. Curington's briefing explains, this is exactly the intent of his Motion: "In his § 2255, Mr. Curington asserts that he is not challenging the merits of the Federal Conviction for which he is presently incarcerated. Instead, he contends that because a former conviction for which he is no longer incarcerated or under any parole restraint was tainted by a Constitutional infirmity, and that conviction was improperly considered when he was sentenced for his instant offense, thus, his current term of incarceration violates his Constitutional rights." ECF No. 131 at 18. Under Daniels, Mr. Curington cannot challenge his federal conviction by trying to prove the unconstitutionality of a prior state conviction. Daniels, 523 U.S. at 382 ("If [ ] a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255.").
There is one limited exception to Daniels but Mr. Curington has not shown any reason why it should be applied here. Daniels explained that "there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own." Id. at 383. In such situations, a petitioner might be able to challenge his prior state convictions through § 2255 petition—Daniels specifically declined to rule on the issue. Id. at 383-84. However, as in Daniels "[n]o such claim is made here." Id. at 384 Presumably, Mr. Curington "could have pursued his claims while he was in custody on those convictions" through the appropriate state appellate, state post-conviction, or federal post-conviction channels.
In substance, all of Mr. Curington's § 2255 claims challenge the validity of his underlying state court convictions. Facially, however, Mr. Curington also asserts a violation of the federal prosecutor's Brady obligations and a claim for ineffective assistance of his federal counsel. Though these claims are, at heart, still challenges to Mr. Curington's state conviction, they are asserted as challenges to what happened in federal Court. There is good reason to believe that such claims are still barred by Daniels, but to the extent they are not, the claims still fail. As explained below, Mr. Curington's "Brady" claims are barred by his § 2255 waiver. Mr. Curington's ineffective assistance of counsel claims may or may not be barred by his § 2255 waiver, but either way, they are substantively without merit.
"Criminal defendants may waive both constitutional and statutory rights," including the right to collateral relief under § 2255, "provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). "Thus, we will enforce appellate or collateral-attack waivers when they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice." United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015), cert. denied, No. 15-1028, 2016 WL 632623 (U.S. June 20, 2016).
Mr. Curington acknowledges that he entered into a written guilty plea that "acknowledge[d] responsibility for the conduct charged." ECF No. 131 at 12. Nonetheless, Mr. Curington alleges that his plea agreement (and thus, presumably, the waiver) was not entered into knowingly and voluntarily because he was unaware that (as he alleges) two corrupt state detectives had made misrepresentations and fabricated evidence in a prior state proceeding. See ECF No. 131 at 30-32. Mr. Curington's argument is really about the potential invalidity of his prior state guilty plea, not about whether he knowingly and voluntarily entered into the federal guilty plea here. The "knowingly and voluntarily" inquiry is not an examination of whether a defendant has adequately internalized the legal or constitutional validity of every prior event that may have an impact on his eventual sentence (such as a prior state guilty plea, here); instead, it is an examination of whether a defendant knew the provisions of the plea that he was agreeing to, and did so of his own volition. See United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001) ("Waivers of the legal consequences of unknown future events are commonplace" and their "prospective nature" does not "render a defendant's act unknowing.").
Although "a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary," the district court still has "an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record evidence before it." United States v. Mabry, 536 F.3d 231, 237-38 (3d Cir. 2008) ("Compliance with this obligation aids our review and ensures that the defendant's rights are carefully considered."). Here, the record plainly reflects that Mr. Curington knew about the collateral waiver provision in the plea agreement, affirmed his understanding of this provision, and voluntarily entered into the plea agreement with the Government.
After the Court affirmed Mr. Curington's competence and affirmed his understanding of his legal and constitutional rights, the Government's lawyer explained on the record that, through the plea agreement, Mr. Curington "waives his right to collaterally attack his conviction or sentence under federal law." ECF No. 156 at 24-25. Then, the Court affirmed Mr. Curington's understanding of these provisions:
ECF No. 156 at 26-28. Again later in the proceeding, the Court affirmed that Mr. Curington voluntarily signed his plea agreement and that this signature was intended "to confirm, in writing, that you were agreeing to all of the terms of the plea agreement letter." See ECF No 156 at 30-31. Indeed, at the conclusion of the hearing, Mr. Curington's attorney explicitly raised his own personal opposition to § 2255 waivers being applied to later claims for ineffective assistance of federal counsel:
ECF No. 156 at 40. In response to this observation, the Court affirmed with Mr. Curington's counsel that he was not currently acting under a conflict of interest, that he had carefully "reviewed with Mr. Curington, line by line, each and every provision of the plea agreement" and that there were no limitations placed upon counsel's professional judgment or the zealous and effective representation of Mr. Curington's interests. ECF No. 156 at 42-44. Further, the Court reaffirmed with Mr. Curington that he himself understood and accepted the collateral-review waiver provisions in the plea agreement:
ECF No. 156 at 44-45.
Plainly, both the Court and Mr. Currington's counsel "explained the waiver to [Mr. Curington] and he signed the agreement, acknowledging that he understood its terms." See Fazio, 795 F.3d at 425. Further, the Court specifically discussed the effects of the collateral waiver with Mr. Curington in detail, and he affirmed his understanding of that provision and that he was agreeing to this condition. See United States v. Chavez Pereira, 525 F. App'x 120, 122 (3d Cir. 2013). Likewise, the Court affirmed that Mr. Curington voluntarily entered into the plea agreement and accepted its collateral-review waiver without coercion or external promise. See Fazio, 795 F.3d at 425-6. See also Chavez Pereira, 525 F. App'x at 122-23 ("In the instant case, [defendant] knowingly and voluntarily signed the plea agreement which clearly informed him that he was waiving his right to direct and collateral appeals under certain conditions. Moreover, during [defendant's] plea hearing, the Court discussed the effects of the appellate waiver with [defendant] in detail. [Defendant] stated to the Court that he had discussed the appellate waiver with counsel, and was duly informed of its consequences. Therefore, there are no viable appellate issues with respect to the appellate waiver."); United States v. Ochoa-Hernandez, 323 F. App'x 134, 137 (3d Cir. 2009) ("After reviewing the transcript of the plea colloquy, we conclude that the District Court thoroughly advised [defendant] of all of the above issues, that [defendant] indicated that he understood the consequences of his plea, and that he entered his plea knowingly and voluntarily. Therefore, this issue lacks merit").
As such, the collateral waiver in Mr. Curington's plea agreement bars his § 2255 claims unless he can show that enforcing the waiver would work a "miscarriage of justice." The Court should apply a "common sense approach in determining whether a miscarriage of justice would occur if the waiver were enforced," Mabry, 536 F.3d at 242, but the exception, "will be applied sparingly and without undue generosity." United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005). Further, before concluding that a waiver does work a miscarriage of justice, the Court should consider "the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result." Mabry, 536 F.3d at 242.
With respect to Mr. Curington's Brady claims, he does not argue that his waiver works a miscarriage of justice and, bearing in mind the Mabry considerations, it does not appear to this Court that it would. Notably "[t]his is not a case where enforcing a collateral attack waiver would result in barring an appeal expressly preserved in the plea agreement . . . [n]or is this a case raising allegations that counsel was ineffective or coercive in negotiating the very plea agreement that contained the waiver." Mabry, 536 F.3d 231, 243 (3d Cir. 2008) (explaining that such cases can constitute a miscarriage of justice) (emphasis added). Instead, Mr. Curington asserts that the Government violated its Brady obligations by failing to tum over information about the conduct of the aforementioned state detectives in prior state court cases, and that his counsel rendered ineffective assistance by failing to inquire into the alleged misconduct or corruption that (he argues) underlies his prior state conviction. The brunt of these claims is an attack on the prior state court conviction, and the impact of that state conviction on his eventual federal sentence. Especially in light of the high bar necessary to establish a "miscarriage of justice," it would not work a miscarriage of justice to enforce Mr. Curington's agreed-to § 2255 waiver against his Brady claims.
It would not work a miscarriage of justice to enforce Mr. Curington's § 2255 waiver against his Brady claims. At least one court, however, has held that it would be a miscarriage of justice to enforce a § 2255 waiver against a defendant's "right to file a motion collaterally attacking his sentence to the extent any such motion is based upon . . . alleged ineffective assistance."
Mr. Curington asserts that "his Federal attorney failed to investigate prosecutor `Brady' violations" and "failed to undertake an independent investigation into possible mitigating evidence concerning the `State' priors used to enhance Mr. Curington's Federal sentence, as a Career Offender and with the enhancement applicable under 21 U.S.C. § 851, and was therefore unable to offer any mitigating evidence concerning the State priors that resulted from police misconduct/ Corruption." ECF No. 131at37. Both arguments boil down to the allegation that Mr. Curington's attorney failed to attack the validity of his prior state conviction at sentencing, which then resulted in the improper qualification of Mr. Curington as a Career Offender under U.S.S.G. § 4B 1.1. But Mr. Curington's sentencing counsel was certainly not acting unreasonably in not challenging the validity of Mr. Curington's underlying state sentence. The Supreme Court has held that "a defendant in a federal sentencing proceeding may [not] collaterally attack the validity of previous state convictions that are used to enhance his sentence" unless "(1) he alleges the `unique constitutional defect' that he was denied the right to counsel under Gideon v. Wainwright, 372 U.S. 335 (1963), in the proceedings leading to such prior conviction, or (2) the statute under which he is currently being sentenced explicitly provides for the ability to collaterally attack `prior convictions used for sentence enhancement purposes.'" United States v. Napolitan, 2016 WL 3902164, at *3 (3d Cir. July 19, 2016) (quoting Custis v. United States, 511 U.S. 485, 487 (1994)). See also United States v. Thomas, 42 F.3d 823, 824-25 (3d Cir. 1994) (applying Custis to bar a defendant's challenge to his federal sentence based on a constitutional defect in a prior state conviction because he alleged no Gideon violation and the applicable U.S. Sentencing Guideline lacked statutory authorization for such a challenge). Mr. Curington was represented by counsel at the state proceeding, and the statute under which he was sentenced in this Court does not provide for the ability to attack the prior state conviction. As such, it would have been contrary to established Supreme Court precedent for Mr. Curington's sentencing counsel here to try to challenge the validity of a prior state court conviction at the federal sentencing hearing
Finally, no certificate of appealability should issue in this case. A petitioner may only appeal "the final order in a proceeding under section 2255" if a judge "issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(B). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). However, when a petition is denied on procedural grounds, a certificate of appealability may issue only if (1) jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. at 484. Jurists of reason would not debate Daniels's prohibition on § 2255 attacks of state convictions, the effect of Mr. Curington's § 2255 waiver, or the lack of merit in Mr. Curington's ineffective assistance of federal counsel claims. Therefore, no certificate of appealability will issue.
Mr. Curington's Motion to Vacate at ECF No. 130 is DENIED; Mr. Curington's Motion to Supplement at ECF No. 137 is DENIED; Mr. Curington's Motion to Appoint Counsel at ECF No. 153 is DENIED; Mr. Curington's Motion to Supplement at ECF No. 165 is DENIED; and the Government's Motion to Dismiss at ECF No. 139 is DENIED WITHOUT PREJUDICE AS MOOT.
