WILLIAM E. CASSADY, Magistrate Judge.
Petitioner, Robert Lawrence Nouwen, has filed with this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 41). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(b). Following consideration of all relevant pleadings in the case, it is recommended that Nouwen's § 2255 motion be summarily
On October 25, 2012, Nouwen was indicted on one count of knowingly possessing and attempting to possess images of child pornography that were mailed, shipped and transported "in and affecting interstate commerce[,]" in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 1.)
(Id. at 2-3.) The plea agreement signed by Nouwen contains a limited waiver of the right to appeal and a waiver of collateral attack. (Doc. 11, at 7-8.)
(Id. (footnote added); see also Doc. 36, Guilty Plea Transcript, at 6 ("THE COURT: Under some circumstances, you and the United States each may have the right to appeal any sentence the judge imposes. You also have the right to waive your right to appeal, and I see by your plea agreement that you are waiving your right to appeal any sentence imposed with the following exceptions: And that would be any punishment in excess of the statutory maximum, any punishment constituting an upward departure of the guideline range, and any claim of ineffective assistance of counsel. Do you understand that? DEFENDANT: Yes, sir.").) Indeed, Nouwen specifically acknowledged by signing the plea agreement that if he received a sentence within or below the advisory guideline range, the agreement would serve as his "express directive to defense counsel to timely file a `Notice of Non-Appeal' following sentencing, signed by the defendant." (Doc. 11, at ¶ 27.)
Following entry of his counseled guilty plea on December 17, 2012 (Doc. 36, at 1-9), Nouwen was allowed to remain on conditions of release pending sentencing (id. at 10-11). In the Presentence Investigation Report, the probation officer summarized the contents of two of the videos ordered by Nouwen (Doc. 15, at ¶¶ 10-12),
Based upon all relevant matters contained in the Presentence Investigation Report, Nouwen's base offense level of 18 (id. at ¶ 33) was increased a total of 12 levels, including: (1) a two level increase because the material (videos) "involved a prepubescent minor or a minor who had not attained the age of 12 years," (id. at ¶ 34); (2) a five level increase based upon the defendant's admission that "he sexually abused numerous minor boys over the course of approximately 20 years[]" (id. at ¶ 35); (3) a two level increase because the defendant used his computer to order the videos/material in question (id. at ¶ 36); and (4) a three level increase because the videos involved at least 150, but fewer than 300, images (id. at ¶ 37). Nouwen's adjusted offense level of 30 (id. at ¶ 41) was reduced by three levels to a total offense level of 27 (id. at ¶ 45) based upon the defendant's acceptance of responsibility (id. at ¶¶ 43-44). "Based upon a total offense level of 27 and a criminal history category of I, the guideline imprisonment range is 70 to 87 months." (Id. at ¶ 75.) Nouwen filed no objections to the presentence report (compare Doc. 16 ("To date [March 8, 2013], the defendant, through counsel, has not filed objections.") with Docket Sheet (no objections to the presentence report filed by the defendant)); instead, two days prior to sentencing, on May 18, 2013, Nouwen's attorney filed a sentencing memorandum and motion for downward departure/variance on behalf of his client (Doc. 21). It is clear that Nouwen's attorney had no problem with the "content" of the report or, more importantly, the calculations set forth therein (compare Doc. 37, Sentencing Transcript, at 4 ("THE COURT: . . . I note that there are no written objections to the report. Are there any matters that we need to take up with regard to the content of the report at this time, Mr. Armstrong? MR. ARMSTRONG: No, Your Honor. .. . THE COURT: Then the Court will adopt to Presentence Report as published, noting that the Sentencing Guidelines have been accurately calculated[.]") with Doc. 21, at 3 ("The PSR calculates the guideline range correctly[.]")); however, it was counsel's fervently argued position that the guideline range of 70 to 87 months set forth in the presentence report was of little aid to the Court in deciding on proper sentencing since "the child pornography guideline is irrational and incompatible with § 3553(a),"
(Id. at 18-23; see also Doc. 22 (judgment in a criminal case signed by Chief Judge Steele on June 4, 2013, and reflecting a custodial sentence of 70 months).)
Nouwen filed written notice of appeal from the sentence on June 11, 2013. (Doc. 24.) Retained trial counsel, Gordon G. Armstrong, III, Esquire, was allowed to withdraw on June 25, 2013 (Doc. 32; compare id. with Doc. 30) and the Federal Public Defender's office was appointed to represent Nouwen on appeal (Doc. 32). Approximately four months after the notice of appeal was filed, that is, on October 22, 2013, the Eleventh Circuit Court of Appeals dismissed Nouwen's appeal pursuant to the appellant's "motion for voluntary dismissal (joint stipulation of the parties)[.]" (Doc. 40, Entry of Dismissal.) The undersigned need look no further than the plea agreement, as reiterated during the guilty plea proceeding, to find the reason for the parties stipulating to dismissal of the appeal inasmuch as Nouwen waived the right to attack his sentence, with the exceptions that he could attack his sentence if that sentence was in excess of the statutory maximum or constituted an upward departure or variance from the advisory guideline range. (Doc. 11, at 7-8; see also Doc. 36, Guilty Plea Tr. at 6 (setting forth these exceptions and also advising Nouwen that he did not waive his right to raise any claim of ineffective assistance of counsel).) In this case, of course, Nouwen's sentence (of 70 months, that is, 5 years and 10 months) was not in excess of the 10-year statutory maximum, see 18 U.S.C. § 2252A(b)(2), nor did it constitute an upward departure from the advisory guideline range inasmuch as he was sentenced at the low end of the guideline range (that range being 70 to 87 months) (see Doc. 15, at ¶ 75). Since there was no basis to attack his sentence, the parties properly stipulated to dismissal of the appeal. (See Doc. 40.)
A little shy of one year to the day after the Eleventh Circuit's October 22, 2013 entry of dismissal of his direct appeal, that is, on October 20, 2014, Nouwen filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 41.) Therein, Nouwen seeks a reduction in his sentence to a low-end guidelines sentence without consideration of the five-level enhancement under § 2G2.2(b)(5) for his past history of sexual activities with minors (see id. at 13) for two reasons: (1) his right to be free from self-incrimination was violated when Kevin Boyle, the investigator who administered the polygraph examination, told him that any acts older than 20 years were covered by the statute of limitations and could not be used against him and then Boyle asked him to type his (Boyle's) handwritten notes which were then presented as his "voluntary confession" (id. at 4; see also id. at 14-15); and (2) his right to due process was violated when the Assistant United States Attorney stated during the sentencing hearing that he was guilty of rape (id. at 5; see also id. at 15). It is important to note that petitioner nowhere asserts a claim of ineffective assistance of counsel nor does he attack the voluntary and knowing nature of his plea
Section 2255 reads, in relevant part, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
Rule 4 of the Rules Governing Section 2255 cases states that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." 28 U.S.C. foll. § 2255, Rule 4(b). Because this rule is all but identical to its § 2254 counterpart, see 28 U.S.C. foll. § 2254, Rule 4, it is clear that a district court has the authority under this rule to dismiss frivolous habeas petitions prior to any answer by the United States. Acosta v. Artuz, 221 F.3d 117, 123 (2nd Cir. 2000) ("[T]he authority to raise [] procedural defenses sua sponte is consistent with the authority provided to the district courts in 2254 Habeas Rule 4 and 2255 Habeas Rule 4(b)."); see Day v. Crosby, 391 F.3d 1192, 1194 (11th Cir. 2004) (per curiam) ("The critical difference between the ordinary civil case and a habeas case involves Rule 4 of the Rules Governing Section 2254 cases . . . . The Fifth, Fourth, and Second Circuits have concluded that `[t]his rule differentiates habeas cases from other civil cases with respect to sua sponte consideration of affirmative defenses.' . . . The Advisory Committee Notes to Rule 4 state that a federal district court has `the duty . . . to screen out frivolous applications.'"), judgment aff'd sub nom. Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (finding that a district court has the power under Rule 4 of the Rules Governing Section 2254 Cases "to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state."); Emerson v. United States, 2004 WL 743914, *1 (N.D. Tex. Apr. 7, 2004) ("Respondent United States of America [] has not filed an answer, but the Court has reviewed Emerson's pleadings and finds that his petition should be denied. See Rule 4 of the Rules Governing Section 2254 Cases . . . and Rule 4(b)[,] Rules Governing Section 2255 Proceedings[.]"), cert. denied, 541 U.S. 1081, 124 S.Ct. 2435, 158 L.Ed.2d 996 (2004); United States v. Gray, 1996 WL 228461, *16 (N.D. Fla. Apr. 24, 1996) ("Finally, Judge Coffin noted [in concurring in part and dissenting in part in United States v. Quin, 836 F.2d 654, 658-659 (1st Cir. 1987)] that federal courts are not helpless to manage frivolous habeas or post-conviction petitions. Patently frivolous claims may be dismissed summarily without answer by the Government.").
As outlined above, Nouwen signed the Plea Agreement on December 13, 2012. (Doc. 11, at 10.) Per the terms of the agreement, Nouwen waived his right to file any "motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255." (Id. at 7.) "It is well-settled that sentence-appeal waivers are valid if made knowingly and voluntarily." Williams v. United States, 396 F.3d 1340, 1341 (11th Cir.), cert. denied, 546 U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005); see also United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993) ("We agree with the basic reasoning of our sister circuits that sentence appeal waivers may be enforced. However, just as a guilty plea must be made knowingly and voluntarily to be effective, so must a sentence appeal waiver." (internal citation omitted)), cert. denied, 513 U.S. 1051, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994). The Williams court, for the first time, determined that "a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing." Id. at 1342. The Eleventh Circuit "will enforce a sentence appeal waiver if the government demonstrates either that `(1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver.'" Lattimore v. United States, 185 Fed. Appx. 808, 810 (11th Cir. Jun. 19, 2006),
Here, as aforesaid, Nouwen does not attack the validity of his plea or the appeal waiver and certainly raises no claims of ineffective assistance of counsel. (See Doc. 41.) Moreover, as previously set forth in some detail, Chief Judge Steele specifically questioned Nouwen about the waiver set forth in the plea agreement and the record demonstrates that petitioner understood the significance of the waiver. (See Doc. 36, Guilty Plea Tr. at 6; compare id. with Doc. 11, at 7.) Thus, the undersigned recommends that the Court find that the sentence-appeal waiver was knowingly and voluntarily entered in compliance with Bushert and summarily dismiss Nouwen's motion to vacate in accordance with Rule 4 of the Rules Governing Section 2255 Cases.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied on procedural grounds without reaching the merits of an underlying constitutional claim, "a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Given the applicability of the sentence-appeal waiver in this case, a reasonable jurist could not conclude that this Court is in error for summarily dismissing Nouwen's motion to vacate, nor could a reasonable jurist conclude that petitioner should be allowed to proceed further with respect to his claims. Cf. Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). Accordingly, petitioner is not entitled to a certificate of appealability.
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
The Magistrate Judge
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, "the failure to object limits the scope of [] appellate review to plain error review of the magistrate judge's factual findings." Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (emphasis in original). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
