United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for initial review of the Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion"), ECF No. 382, filed by the Defendant, Shane
Seizys. Also before the Court are Seizys's Motion to
Compel, ECF No. 380, and Motion to Extend, ECF No. 381. Rule
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
defendant's § 2255 motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it.
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 judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
pleading guilty to two separate counts of robbery in
violation of 18 U.S.C. § 1951 and one count of
brandishing a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c), Seizys received a sentence of 348
months' incarceration, to be followed by five years of
supervised release. Judgment, ECF No. 251. The sentence was
consistent with Seizys's plea agreement, executed
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
Plea Agreement, ECF No. 209, Page ID 653.
the plea agreement was executed and his guilty plea was
entered, the Court denied Seizys's motion to withdraw his
guilty plea and he appealed the Court's denial to the
U.S. Court of Appeals for the Eighth Circuit. The Eighth
Circuit affirmed the denial, finding Seizys “waived his
right to appeal the district court's order denying his
motion to withdraw the guilty plea[ ]” in the plea
agreement, and that his waiver was knowing and voluntary. ECF
No. 350-51, Page ID 2341; United States v. Seizys,
864 F.3d 930, 932 (8th Cir. 2017). He now submits his §
2255 Motion on several grounds.
outset, the Court notes that Seizys's § 2255 Motion
is timely and his Motion for an Extension of time to file a
motion under 28 U.S.C. § 2255 will be denied as moot.
Section 2255(f)(1) provides that a motion under that Section
may be filed within one year from “the date on which
the judgment of conviction becomes final[.]” Where a
defendant directly appeals his conviction, the
“judgment of conviction becomes final when the time
expires for filing a petition for certiorari contesting the
appellate court's affirmation of the conviction.”
Clay v. United States, 537 U.S. 522, 525 (2003). The
Eighth Circuit affirmed Seizys's conviction on July 27,
2017, and the Rules of the Supreme Court of the United
States, in effect at that time, provided ninety days after
the Eighth Circuit's entry of judgment to file a petition
for writ of certiorari. U.S. Sup. Ct. R. 13.1 (2013).
Seizys's § 2255 Motion, dated May 19, 2018, and
filed on May 29, 2018, is, therefore, timely under 28 U.S.C.
on the preclusive effect of his direct appeal and the waiver
of his collateral-appeal rights in the plea agreement,
Seizys's § 2255 Motion is limited to an assertion of
ineffective assistance of counsel in connection with his
execution of the plea agreement and his ultimate guilty plea.
for claims asserting ineffective assistance of counsel, a
§ 2255 petitioner “may not raise an issue before
the district court for the first time in a § 2255 motion
if the issue was not presented on direct appeal from the
conviction.” Jennings, 696 F.3d at 762 (citing
Mathews v. United States, 114 F.3d 112, 113 (8th
Cir. 1997)); United States v. Lewis, 483 F.3d 871,
873 n.2 (8th Cir. 2007) (“In general, an ineffective
assistance of counsel claim is not cognizable on direct
appeal. Instead, such a claim is properly raised in a 28
U.S.C. § 2255 action.”). Nor may the petitioner
use § 2255 to “relitigate matters decided on
direct appeal.” Sun Bear v. United States, 644
F.3d 700, 702 (8th Cir. 2011) (citing Davis v. United
States, 417 U.S. 333, 346-347 (1974)).
defendant may also “waive the right to seek collateral
relief under § 2255.” Ackerland v. United
States, 633 F.3d 698, 701 (8th Cir. 2011) (citing
Chesney v. United States, 367 F.3d 1055, 1058 (8th
Cir. 2000)). “Such a waiver is enforceable when the
claim raised falls within the scope of the waiver, the
defendant knowingly and voluntarily entered into the plea
agreement and waiver, and the enforcement of the waiver would
not result in a miscarriage of justice.”
Ackerland, 633 F.3d at 701 (citing United States
v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003)).
“A defendant signing a plea agreement and assenting
again at a plea hearing generally indicate a knowing and
voluntary waiver.” United States v. Cooney,
875 F.3d 414, 416 (8th Cir. 2017). However, “an otherwise
valid waiver of post-conviction rights . . . does not prevent
a defendant from attacking ‘an illegal sentence[
],' which is one that exceeds the statutory
range.Ackerland, 633 F.3d at 702
(quoting Andis, 333 F.3d at 891-92).
2255 Motion asserts: (1) his counsel was ineffective; (2) the
Court lacked jurisdiction to impose his sentence; (3) the
Court erroneously denied his request to withdraw his guilty
plea; (4) the Plea Agreement was unlawful and void; (5) the
Indictment, ECF No. 1, and Superseding Indictment, ECF No.
170, contained insufficient information; (6) robbery under 18
U.S.C. § 1951 is not a crime of violence; (7) the Court
unlawfully accepted the Plea Agreement and departed from the
United States Sentencing Guidelines (the Guidelines); (8) the
Court improperly departed from the Guidelines by sentencing
him to serve consecutive-rather than concurrent-terms of
incarceration; and (9) his sentence violated his due process
Court has previously found, and the Eighth Circuit has
affirmed, that Seizys knowingly and voluntarily entered into
the plea agreement which included a broad waiver of both his
direct-appeal and collateral-appeal rights. Seizys,
864 F.3d 930. On direct appeal, the Eighth Circuit reviewed
whether Seizys should have been allowed to withdraw his
guilty plea prior to sentencing and found that, based on the
direct-appeal waiver in the plea agreement, he waived his
right to appeal that issue. Seizys, 864 F.3d at 932.
No. other issue was raised on direct appeal. As such, he may
not relitigate the propriety of this Court's decision to
deny his motion to withdraw his guilty plea or any other
issue which could have been raised on direct appeal, except
for his claim asserting ineffective assistance of counsel.
This is also consistent with the plea agreement which
The defendant [ ] knowingly and expressly waives any and all
rights to contest the defendant's conviction and sentence
in any post-conviction proceedings, including any ...