Filed: May 15, 2014
Latest Update: May 15, 2014
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Kizvwanda Hopkins moves for 28 U.S.C. 2255 relief. Doc. 197. Pursuant to a plea agreement (doc. 166) under which the government agreed to drop one of two indictment counts, id. at 1, she pled guilty to "Conspiracy to defraud the Government by false claims," in violation of 18 U.S. 286. CR612-011, doc. 162 at 1. 1 The Court sentenced her to 52 months in prison. Id. at 2; see also doc. 191 (denying her subsequent motion for earl
Summary: REPORT AND RECOMMENDATION G.R. SMITH, Magistrate Judge. Kizvwanda Hopkins moves for 28 U.S.C. 2255 relief. Doc. 197. Pursuant to a plea agreement (doc. 166) under which the government agreed to drop one of two indictment counts, id. at 1, she pled guilty to "Conspiracy to defraud the Government by false claims," in violation of 18 U.S. 286. CR612-011, doc. 162 at 1. 1 The Court sentenced her to 52 months in prison. Id. at 2; see also doc. 191 (denying her subsequent motion for early..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Kizvwanda Hopkins moves for 28 U.S.C. § 2255 relief. Doc. 197. Pursuant to a plea agreement (doc. 166) under which the government agreed to drop one of two indictment counts, id. at 1, she pled guilty to "Conspiracy to defraud the Government by false claims," in violation of 18 U.S. § 286. CR612-011, doc. 162 at 1.1 The Court sentenced her to 52 months in prison. Id. at 2; see also doc. 191 (denying her subsequent motion for early release); doc. 195 (denying her subsequent motion for a sentence reduction). The agreement called upon her to waive both
the right to appeal the conviction and sentence and the right to collaterally attack the conviction and sentence in any post-conviction proceeding, including not limited to a § 2255 action, on any ground, EXCEPT that: the defendant may file a direct appeal of h[er] sentence if it exceeds the statutory maximum or if, by variance or departure, the sentencing court imposes a sentence higher than the advisory sentencing guideline range as found by the sentencing court. The governments right to appeal is not limited, BUT IF the government appeals the sentence imposed, the defendant may also file a direct appeal of the sentence.
Doc. 166 at 7 (emphasis added).2
In moving for § 2255 relief, Hopkins doesn't even acknowledge her waiver of the right to file this motion. Initially, she simply "laundry-listed" half of her claims, see, e.g., doc. 197 at 8 (Ground Four: "Violation of Ex Post Facto Clause"), including those asserting ineffective assistance of counsel (IAC).3 Id. at 10. She later filed a supporting brief, doc. 202, but none of her IAG claims challenge the voluntariness of her plea — an indispensable minimum needed to defeat a double waiver (of both the right to a direct appeal and the right to collaterally attack the conviction). See Fulmer v. United States, 2014 WL 1698880 at *2 (S.D. Ga. Apr. 29, 2014); McClendon v. United States, ___ F. Supp. 2d ___, 2014 WL 358980 at *2 (S.D. Ga. Mar. 10, 2014). Finally, Hopkins was sentenced within the statutory and sentencing guidelines range. PSI at 15 ¶¶ 54, 55. As in Fulmer and McClendon, which applied substantively identical double waivers, this § 2255 motion was dead on arrival and thus must be denied.
Kizvwanda Hopkins's 28 U.S.C. § 2255 motion (doc. 197) should be DENIED. Her time-extension motion (doc. 198) is DENIED as moot (she has already filed her § 2255 motion, to which the government does not object on timeliness grounds, doc. 200 at 1). Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at *1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED.
