G. MURRAY SNOW, District Judge.
Tanya Crandell, who is the wife of the ostensible movant, Jeffrey Crandell, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Jeffrey Crandell is confined in the Federal Correctional Institution-La Tuna in Anthony, Texas. In an Order filed on November 23, 2011, the Court dismissed the motion with leave for Jeffrey Crandell to file an amended motion within 30 days. (Doc. 3.) On January 11, 2012, the case was dismissed because an amended motion had not been filed by Mr. Crandell and judgment was entered. (Doc. 5, 6.) On January 13, 2012, Mr. Crandell, hereafter Movant, filed an Amended Motion. (Doc. 7.) On January 24, 2012, Movant filed a motion asking the Court to consider his Amended Motion, which the Court construes as a motion to vacate dismissal of the case and entry of judgment. (Doc. 8.) The Court will grant Movant's motion to vacate the January 11, 2012 dismissal and entry of judgment and consider Movant's Amended Motion. However, the Court will summarily dismiss the Amended Motion based on waiver. (Doc. 7.)
Pursuant to a plea agreement, Movant pleaded guilty to six counts of bank fraud in violation of 18 U.S.C. § 1344. The plea agreement contained no agreement as to sentencing and provided that the parties were free to make any recommendations to the Court. (Doc. 264 at 2.) On March 26, 2010, the Court sentenced Movant to a 62-month term of imprisonment followed by five years on supervised release.
In his Amended Motion, Movant asserts one ground for relief for lack of adequate representation by counsel. Movant contends that counsel failed to adequately communicate with him regarding an initial plea offer, in August 2011, and that he accepted a subsequent plea agreement after the Court denied his motion for new counsel shortly before trial because Movant doubted his attorney preparedness for trial.
The docket for the criminal case reflects that on Wednesday, November 4, 2009, Movant's attorney filed a motion for an expedited hearing to determine counsel at Movant's request. (Doc. 174.) At that time, Movant's trial was scheduled to commence on Tuesday, November 10, 2009. Because Movant was unavailable for a hearing on Wednesday, hearings were held on Friday, November 6, 2009. A significant portion of one of those hearings was sealed and conducted ex parte so that this Court could hear from Movant and his attorney. After a lengthy colloquy, this Court denied Movant's request for new counsel after determining that Movant's counsel had adequately communicated with Movant and that counsel was prepared to proceed to trial. Further, the Court informed Movant, as had counsel previously, that the decision to plead or to go to trial was Movant's.
On Monday, November 9, 2009, Movant pleaded guilty to the six remaining counts before the Court. Movant stated that he was satisfied with the representation of his attorney and, after thorough questioning, the Court found that Movant's guilty plea was voluntarily, knowingly, and intelligently made, including the waiver of the right to appeal or file any collateral motion.
A district court must summarily dismiss a § 2255 application "[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." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required.
Movant has waived challenges to his sentence. The Ninth Circuit Court of Appeals has found that there are "strict standards for waiver of constitutional rights."
Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face.
"Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside [the category of ineffective assistance of counsel claims challenging the validity of the plea or the waiver] are waivable."
As part of his plea agreement, Movant made the following waiver:
(Doc. 264 at 3) (emphasis added). Movant indicated in his plea agreement that he had discussed the terms with his attorney, agreed to the terms and conditions, and entered into the plea voluntarily. (
Movant's assertions in his § 2255 motion all pertain to sentencing and not to the voluntariness of the waiver. Movant expressly waived issues regarding the imposition of sentence and expressly waived the right to bring a § 2255 motion. The Court accepted his plea as voluntarily made. Consequently, the Court finds that Movant waived the sentencing issues raised in his § 2255 motion. Thus, the Court will summarily dismiss the motion.
Accordingly,
(1) Movant's motion asking the Court to consider his Amended Motion, doc. 7, is construed as a motion to vacate dismissal of this case and entry of judgment on January 11, 2012. (Doc. 8.)
(2) Movant's motion to vacate the January 11, 2012 dismissal and entry of judgment in this case, doc. 5 and 6, is
(3) Movant's Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is
(4) Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 333 in CR08-0255-PHX-GMS) is
(5) Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable.