Opinion
Case No. 2:04-CV-811 TC.
November 10, 2004
ORDER
On September 3, 2004, Mr. Raymond Horsley filed a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 which was assigned to the Honorable Paul G. Cassell. Judge Cassell, after reviewing Mr. Horsley's application, determined it was in fact a Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255. Mr. Horsley's motion was transferred to Judge Tena Campbell, the sentencing judge in United States v. Raymond Horsley, Case No. 2:01-CR-384-TC.
For the reasons set forth below, Mr. Horsley's submission is DENIED.
ANALYSIS
Mr. Horsley's motion must be denied because he has waived his right to collaterally attack his sentence. Specifically, in his Statement in Advance of Plea of Guilty, he agreed to the following:
I . . . also waive any right to challenge the sentence of the manner in which the sentence is determined in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255. (emphasis added)
(Statement of Def. in Advance of Plea of Guilty at ¶ 9(e) (Dkt # 8).) His waiver is valid because the evidence shows that it was entered voluntarily, knowingly and intelligently. See, e.g., United States v. Cockerham, 237 F.3d 1179, 1181-83 (holding that express waiver of § 2255 rights in plea agreement is enforceable when petitioner is challenging the sentence and the plea and waiver were knowingly and voluntarily made); see also United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002) (holding that right to § 2255 collateral attack only survives waiver if petitioner claims ineffective assistance of counsel with respect to the plea agreement).
ORDER
For the foregoing reasons, Mr. Horsley's Motion is DENIED.