STEVEN D. MERRYDAY, District Judge.
Nixon's motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the validity of his conviction for possession of a firearm in furtherance of a drug trafficking offense. Nixon pleaded guilty with the benefit of a plea agreement. Although a career offender, Nixon was granted a six-level downward departure and sentenced to 188 months. Under the terms of the plea agreement, Nixon waived his right both to challenge the calculation of his sentence and to appeal.
Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary review of the motion to vacate and a summary dismissal "[i]f it plainly appears from the face of the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief . . . ." Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)
Grounds one and two allege that, under Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 2151, 2155 (2013), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), Nixon's sentence was incorrectly determined. Affording a generous interpretation to his supplement (Doc. 5), ground five alleges (1) that the Section 924(c) conviction in this action cannot support a career offender sentence because possession of a firearm is not a violent offense and (2) that eligibility for a career offender sentence under Section 4B1.1(a), United States Sentencing Guidelines, requires that "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense."
Nixon waived the right to challenge the calculation of his sentence when he "expressly waive[d] the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range. . . ." Plea Agreement (¶6 at 16S17, Doc. 31) The appeal waiver is routinely enforced. See, e.g., United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.) ("An appeal waiver includes the waiver of the right to appeal difficult or debatable legal issues or even blatant error."), cert. denied, 544 U.S. 1041 (2005); United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005) ("[T]he right to appeal a sentence based on Apprendi/Booker grounds can be waived in a plea agreement. Broad waiver language covers those grounds of appeal."); United States v. Buchanan, 131 F.3d 1005, 1009 (11th Cir. 1997) ("Notwithstanding Buchanan's explicit reservation of the right to argue his position about that issue at sentencing, a right that he exercised, the issue was not exempted from the appeal waiver. We enforce the appeal waiver according to its terms."); United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993) ("We hold, therefore, that in most circumstances a defendant's knowing and voluntary waiver of the right to appeal his sentence will be enforced by this circuit."), cert. denied 513 U.S. 1051 (1994). As a consequence, Nixon waived his right to challenge the calculation of his sentence.
This waiver and the consequent lack of an appeal of his sentence result in a procedural default of a challenge to the correctness of his sentence. As explained in Page v. United States, 440 Fed. App'x 767, 769 (2011),
See also Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) ("The government concedes, and we take it as a given, that the Supreme Court's Johnson decision is § 2255 relief from the application of the career offender enhancement in his case, from the resulting sentence, and from our decision affirming that sentence and rejecting his claim on direct appeal. At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding."), cert. denied, ___ U.S. ___, 133 S.Ct. 1740 (2013).
Nixon argues that he is "actually innocent" of his sentence. In rejecting a procedurally barred claim that could have been raised on direct appeal,
Moreover, "[n]either the Supreme Court nor this Court has held that Descamps applies retroactively on collateral review. Beyond that, Descamps was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review." Nipper v. Warden, FCC-Coleman, 597 Fed. App'x 581, 583 (11th Cir. 2015), petition for cert. filed, No. 14-9750 (May 13, 2015). See also King v. United States, ___ Fed. App'x ___, 2015 WL 1898394 (11th Cir. April 28, 2015) ("[N]either Alleyne nor Descamps apply retroactively on collateral review as required by § 2255(h)(2), and, thus, King's motion was not timely under § 2255(f)(3).").
Grounds three and four allege that trial counsel rendered ineffective assistance because no probable cause existed to support a conviction for the charged Section 924(c) offense. Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:
This waiver of rights precludes most challenges to the conviction. See e.g., United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) ("Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings."), and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained."). A guilty plea waives a claim of ineffective assistance of counsel based on a pre-plea event, including a claim of ineffective assistance of counsel. Wilson, 962 F.2d at 997. Consequently, the entry of a guilty plea waives a claim (other than a jurisdictional challenge), including both a substantive claim and a purported failing of counsel that occurred before entry of the plea.
Nixon's argument that probable cause was lacking is preposterous. In his plea agreement Nixon (1) was arrested with the drugs and guns inside the car in which he was a passenger, (2) admitted to possessing drugs that he intended to distribute, and (3) admitted to knowing that there were two handguns in the car, including one that was on the back seat with the marijuana he that intended to package and sell.
Accordingly, the motion to supplement (Doc. 5) is GRANTED, the motion under Section 2255 to vacate the sentence (Doc. 1) is DENIED, and the motion to appoint counsel (Doc. 4) is DENIED AS MOOT. The clerk must close this case.
Nixon is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Nixon must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Nixon is entitled to neither a certificate of appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Nixon must obtain permission from the circuit court to appeal in forma pauperis.
