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United States v. Seizys

United States District Court, D. Nebraska

June 28, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
SHANE SEIZYS Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         After 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.

         After 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.

         DISCUSSION

         At the 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. § 2255(f)(1).

         Based 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.

         Except 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)).

         A 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).[1] 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.[2]Ackerland, 633 F.3d at 702 (quoting Andis, 333 F.3d at 891-92).

         Seizys's 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 rights.

         This 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 provides:

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 ...

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