United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on the defendant's motion to
vacate under 28 U.S.C. § 2255, Filing No. 64.
defendant was convicted, after a guilty plea, of possession
with intent to distribute 50 grams or more of a
methamphetamine mixture in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B), and use of a firearm in connection
with a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1)(A). Filing No. 62, Judgment. The
drug distribution conviction carries a mandatory minimum
sentence of five years, with a maximum of forty years, and
the weapons charges carries a mandatory minimum consecutive
sentence of five years.
§ 2255 motion, the defendant alleges his conviction was
obtained pursuant to an unconstitutional search and seizure.
He also alleges ineffective assistance of counsel in failing
to challenge the search. He states that law enforcement
officers searched a lockbox without a warrant or permission
record shows that, in a binding plea agreement under
Federal Rule of Criminal Procedure 11(c)(1)(C), the
defendant agreed to a sentence of 120 months. Filing No.
33, Plea Agreement at 4. In the plea agreement, he
further stated he “knowingly and expressly waive[d] any
and all rights to appeal [his] conviction and sentence”
and his right to contest the conviction and sentence in any
post-conviction proceeding, except for claims of ineffective
assistance of counsel. Id. at 5. The plea agreement
also set out the following factual basis for the plea:
On December 19, 2015, officers arrived at a QuikTrip gas
station at 1311 Fort Crook Road North. Officers made contact
with Good who was with another individual identified as
Melissa Halbert. Officers learned that Good had two active
misdemeanor warrants out of Douglas County. Officers arrested
Good. After Officers arrested Good, a canine was deployed
around his vehicle, a red Honda Civic. The canine alerted to
the vehicle. Officers searched the car and found a safe.
Inside the safe, officers located a Ziploc baggie containing
117 grams of methamphetamine. The substance in the baggie
field tested positive for methamphetamine. Officers also
found a digital scale and small baggies in the safe.
In addition, Officers found a loaded Ruger .357 Magnum
revolver in the Honda Civic between the driver's seat and
the center console. In a post-Miranda interview with
officers, Good admitted to selling methamphetamine. Good also
confirmed he knew the gun was in the car and that he had it
Filing No. 33, Plea Agreement at 2. The record shows
that no motion to suppress was filed.
September 15, 2016, on a government motion for a downward
departure for substantial assistance, Good was sentenced to a
term of imprisonment of 72 months- 12 months on the drug
trafficking count and 60 months, consecutive, on the weapons
charge. Id. At sentencing, the court accepted and
adopted the guilty plea and the plea agreement. Filing No.
59, text minutes. The defendant did not appeal and he filed
this motion to vacate on February 16, 2017. Filing No.
64, Motion to Vacate.
the Rules Governing Section 2255 Proceedings for the United
States District Courts (“2255 Rules”), the court
must perform an initial review of the defendant's §
2255 motion. See 28 U.S.C. § 2255, Rule 4(b).
The rules provide that if “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 court must dismiss the motion. Id.
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), there is a one-year statute of limitations on
motions by prisoners seeking to modify, vacate or correct
their federal sentences. Johnson v. United States,
544 U.S. 295, 299 (2005). Generally, that year begins to run
from “the date on which the judgment of conviction
becomes final.” 28 U.S.C. § 2255(f)(1). When a
defendant does not file an appeal, his conviction becomes
final when the period in which to file an appeal expires.
Anjulo- Lopez v. United States, 541 F.3d 814, 816
(8th Cir. 2008).In a criminal case, a notice of appeal must
be filed within 14 days of the entry of judgment. Fed. R.
App. P. 4(b)(1)(A)(I).
petitioner is entitled to an evidentiary hearing on a section
2255 motion unless the motion and the files and the records
of the case conclusively show that he is entitled to no
relief.” Anjulo-Lopez, 541 F.3d at 817 (internal
quotation marks omitted). However, an evidentiary hearing
need not be held if the movant's “allegations
cannot be accepted as true because they are contradicted by
the record, inherently incredible or conclusions rather than
statements of fact.” Delgado v. United States,
162 F.3d 981, 983 (8th Cir. 1998).
Eighth Circuit Court of Appeals has long recognized that a
defendant may waive his or her right to appeal, and has also
acknowledged that a defendant may waive his or her right to
post-conviction relief. DeRoo v. United States, 223
F.3d 919, 923 (8th Cir. 2000). Such a waiver, however, has
its limitations. Id.“A defendant's plea
agreement waiver of the right to seek section 2255
post-conviction relief does not waive defendant's right
to argue, pursuant to that section, that the decision to
enter into the plea was not knowing and voluntary because it
was the result of ineffective assistance of counsel.”
Id. at 924; see Jones v. United States, 167
F.3d 1142, 1145 (7th Cir. 1999) (“Justice dictates that
a claim of ineffective assistance of counsel in connection
with the negotiation of a cooperation agreement cannot be
barred by the agreement itself-the very product of the
alleged ineffectiveness.”). Even in circumstances where
the defendant signed a written plea agreement waiving his
right to file for post-conviction relief, he may nevertheless
petition the court for post-conviction relief based on the
ineffective assistance of counsel, but only “when the
defendant's claims of ineffective assistance relate to
the negotiation of, and entry into, the plea agreement and
waiver.” DeRoo, 223 F.3d at 924. The chief virtues of a
plea agreement of speed, economy, and finality “are
promoted by waivers of collateral appeal rights as much as by
waivers of direct appeal rights. Waivers preserve the
finality of judgments and sentences, and are of value to the
accused to gain concessions from the government.”
Id. at 923.However, “the decision to be bound
by the provisions of the plea agreement, including the waiver
provisions, must be knowing and voluntary.”
general rule is that a valid guilty plea waives all
non-jurisdictional defects.” United States v.
Beck,250 F.3d 1163, 1166 (8th Cir. 2001); see also
Smith v. United States,876 F.2d 655, 657 (8th Cir.
1989) (stating a defendant waives all challenges to his
prosecution except those related to the district court's
jurisdiction by pleading guilty, including claims related to
searches and seizures). An unconditional guilty plea
precludes a ...