Opinion
Criminal Action No. 02-75, Civil Action No. 04-2176.
October 5, 2004
Memorandum and Order
Defendant Tinsley Fagan has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Presently before this court are defendant's § 2255 motion and the government's opposing motion to enforce the waiver provision in defendant's plea agreement and dismiss his § 2255 motion. For reasons stated herein, the defendant's motion will be dismissed, and the government's motion will be granted.
I. Background and Procedural History
Defendant Tinsley Fagan robbed a Mellon Bank branch on Market Street in Philadelphia on November 2, 2001. He was indicted on February 7, 2002 for armed bank robbery and for brandishing a firearm during a crime of violence. On June 19, 2003, he entered into a plea agreement with the government. The guilty plea agreement provided for a maximum sentence of 32 years (384 months) on the combined counts. (Guilty Plea Agreement at ¶ 4.)
The agreement also contained the following waiver provision:
7. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.Id. at ¶ 7 (emphasis added).
Under the guilty plea agreement, defendant retained the right to challenge an upward departure from the sentencing guideline range by means of a direct appeal. See Guilty Plea Agreement at ¶ 7(b)(2). He did not, however, retain the right to challenge an upward departure by means of a § 2255 collateral attack.
At the time of defendant's guilty plea, the court engaged in a colloquy with defendant, as required by Rule 11 of the Federal Rules of Criminal Procedure. During the colloquy, defendant was asked pointedly about his understanding of the strict limitations embodied in the waiver provision of his plea agreement:
THE COURT: You also have another agreement portion of your Guilty Plea Agreement that I want to discuss with you and that is that you have agreed that except in some very limited circumstances, you will not file an appeal from your sentence, and you will not file any motion that would challenge your sentence at a later date by way of habeas corpus or what we call twenty-two fifty-five (2255) Motion.
Now, under normal circumstances, you have a right to appeal any sentence that I impose, to a higher court, which could modify or set aside your sentence, or make me resentence you.
The Government also has that right of appeal.
You also have the right to bring later proceedings, such as the collateral attack by filing a habeas corpus Motion in this court to vacate, set aside or correct your sentence.
Do you understand that normally you have those rights?
THE DEFENDANT: Yes, sir.
THE COURT: Now, in this case, the Plea Agreement greatly limits your right to appeal and prevents you from using these later proceedings, like collateral attack and habeas corpus Motion to challenge your conviction, sentence or on any matter.
In other words, you can only appeal if the — on the bases and on the terms that are set forth in your Guilty Plea Agreement which are very limited — much more limited than normal, and you can't file a collateral attack that would challenge it — your sentence — by way of a habeas corpus Motion.
Do you understand that?
THE DEFENDANT: Yes, sir.
(Change of Plea Hearing Transcript at 16-17 (emphasis added).)
Defendant was also queried during the Rule 11 colloquy about his understanding of the application of the Sentencing Guidelines to his case. Id. at 14. He responded affirmatively when asked if he understood that the court would determine his guideline sentence based on both the Probation Department's Presentence Investigation Report and the sentencing hearing, and that the court would have the authority, under certain circumstances, to depart upward or downward from the guideline sentence. Id. When asked, with respect to the plea agreement as a whole, if he had had adequate time to discuss the provisions with counsel, defendant responded that he had. Id. at 20. When asked if had been in any way coerced into entering a guilty plea, defendant responded that he had not. Id. at 21. At the close of the plea hearing, the court accepted the plea.
Defendant's sentencing hearing occurred on September 18, 2003. The guideline sentence set out in the Presentence Investigation Report was 141-155 months. (Presentence Investigation Report at 3.) Joining in the recommendation of the Probation Department, the government moved for an upward departure from the guideline sentence, proposing to shift the applicable sentencing range from 141-155 months to 161-180 months. (Government's Sentencing Memorandum at 8.) The government argued for the longer sentence based on § 4A1.3 of the Sentencing Guidelines, which allows for upward departure from the guideline sentence when defendant's criminal history category significantly under-represents either the seriousness of his past criminal history or the likelihood that he will commit other crimes. U.S.S.G. § 4A1.3. Considering the extensive criminal history cataloged in the Presentence Investigation Report, and finding a strong likelihood of recidivism based on that history, the court granted the government's motion to depart upward and stated its intention to sentence defendant to 180 months. When defendant was informed of his right to request a continuance of the sentencing hearing in order to allow him to prepare formal objections to the upward departure, he conferred off the record with counsel and then waived his right to a continuance. (Sentencing Hearing Transcript at 22.) Defendant was sentenced to 180 months in prison. No appeal was filed.
The Presentence Investigation Report contained a long list of juvenile and adult adjudications, beginning when defendant was 14 years old and continuing to the present. Defendant's convictions range from retail theft and credit card fraud to armed robbery and attempted murder. His criminal history spans decades and appears to have been interrupted only by repeated periods of incarceration.
On May 19, 2004, defendant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. He alleged five separate grounds for relief: (1) erroneous information in the Presentence Investigation Report; (2) ineffective assistance of counsel at sentencing; (3) unlawful inducement of a guilty plea; (4) error by the court in departing upward from the guideline sentence; and (5) violation of the right to fair sentencing. In response, the government filed a motion to enforce the waiver provision in defendant's plea agreement and to dismiss defendant's habeas motion. The defendant has not filed a response.
The motion was initially filed in handwritten form on blank paper. It was refiled on the correct form on June 7, 2004.
II. Discussion
The government relies on U.S. v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001), in which the Third Circuit Court of Appeals held that waivers of appeals in plea agreements are generally enforceable. The standard articulated in Khattak and followed in this circuit is that "waivers of appeals are generally permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice." Id.
Eleven other circuits follow this rule. See United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001); United States v. Fisher, 232 F.3d 301, 304 (2d Cir. 2000); United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United States v. Branam, 231 F.3d 931, 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001); United States v. Jemison, 237 F.3d 911, 916 (7th Cir. 2001); United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000); United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000); United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004); United States v. Howle, 166 F.3d 1166, 1168 (11th Cir. 1999); and In re Sealed Case, 283 F.3d 349, 355 (D.C. Cir. 2002).
On the specific question of whether waivers of appeals operate to bar subsequent collateral attacks, the Third Circuit Court of Appeals has not ruled, but many other circuit courts have held that waivers of collateral attack foreclose all claims with the exception of those relating directly to the negotiation of the waiver itself. See United States v. White, 307 F.3d 336, 337 (5th Cir. 2002) (enforcing a waiver of collateral attack and dismissing defendant's § 2255 ineffectiveness of counsel claim because the court was satisfied that defendant's claim did not go to the voluntariness of the waiver); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) (announcing the rule that a knowing and intelligent waiver of the right to collateral attack forecloses a claim of ineffective assistance of counsel under § 2255); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998) (holding that "the right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver"); and DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (following Jones in holding that defendant's waiver of the right to seek § 2255 relief does not waive his 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).
Applying the Khattak standard, other district courts within the Third Circuit have enforced waivers of collateral attack in cases where the negotiation of the waiver itself was not alleged to be tainted. See U.S. v. Velez, 2004 U.S. Dist. LEXIS 9017 (E.D.Pa. 2004) (denying defendant's motion for reconsideration on the ground that defendant failed to prove "that his acceptance of the waiver of appeal and collateral attack was tainted by ineffective assistance of counsel"); U.S. v. Clemmer, 2004 U.S. Dist. LEXIS 16554 (E.D.Pa. 2004) (enforcing defendant's waiver of collateral attack and dismissing his § 2255 sentencing-related claims because defendant failed to "show that he waived his appeal rights unknowingly or involuntarily"); U.S. v. Shedrick, 2004 U.S. Dist. LEXIS 9021 (E.D.Pa. 2004) (declining to invalidate waiver of collateral attack based on defendant's § 2255 claim that counsel had neither informed him that an upward departure was possible nor objected to the upward departure at his sentencing hearing); U.S. v. Robinson, 2004 U.S. Dist. LEXIS 9016 (E.D.Pa. 2004) (upholding defendant's waiver of collateral attack and dismissing his § 2255 claims, including claim that counsel was ineffective during sentencing phase of proceedings).
In this case, defendant does not claim that his decision to accept the waiver provision in his guilty plea agreement was in any way unknowing or involuntary. In evaluating, under the Khattak standard, whether a defendant's acceptance of a waiver was knowing and voluntary, the role of the sentencing judge in conducting the Rule 11 colloquy is critical. Khattak, 273 F.3d at 563. Here, the court engaged in a thorough colloquy with defendant to ensure that defendant understood the nature and consequences of the specific terms of his plea agreement, including the waiver provision. The court was satisfied on the basis of defendant's responses during the plea colloquy that defendant was adequately represented by counsel during the negotiation of the plea agreement and that he agreed to its provisions, including the waiver, both knowingly and voluntarily. A specific finding was made to that effect. See Change of Plea Hearing Transcript at 25. The waiver is therefore valid and enforceable, unless enforcement would work a miscarriage of justice.
Defendant's argument that his plea was "unlawfully induced" goes instead to the sentencing provisions in his plea agreement. Specifically, he contends that counsel and the government withheld from him the fact that the government retained its right under the agreement to seek an upward departure from the guideline sentence. This claim is contradicted by both the plain language of the agreement and defendant's own statements during the plea colloquy. The plea agreement provided that "the parties are free to argue the applicability of any other provision of the Sentencing Guidelines, including . . . adjustments and departures." (Guilty Plea Agreement at ¶ 6.)
Defendant's ineffectiveness of counsel claim is also unrelated to the negotiation of the waiver provision. He claims that counsel was ineffective during the sentencing hearing. When asked during the plea colloquy (which is the relevant juncture for considering the validity of the waiver) if he was satisfied with his representation in the case, defendant replied that he was, "absolutely." (Change of Plea Hearing Transcript at 10.)
The Third Circuit has declined to enumerate specific situations in which enforcement of a waiver provision would amount to a miscarriage of justice, but it has endorsed the case-by-case approach taken by the First Circuit in Teeter. Khattak, 273 F.3d at 563. Under Teeter, the court is required to weigh several factors before relieving defendant of the waiver. These include "the clarity of the error, its gravity, its character (e.g. whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result." Khattak, 273 F.3d at 563 (quoting Teeter, 257 F.3d at 25-26 ).
Defendant in this case has not made any claim that would lead the court to believe that enforcement of the waiver would work a miscarriage of justice. He has identified no sound basis in fact for his claim that he was denied his right to a fair sentencing. The sentence defendant received was not only well within the statutory maximum, it was less than half the maximum sentence contemplated in his plea agreement. At the sentencing hearing, defendant knowingly and voluntarily waived his right to a continuance, which would have allowed him time to prepare formal objections to the upward departure before sentencing. Moreover, defendant's claim that there was an error in the Presentence Investigation Report is unavailing, as it appears to be based on a misapprehension that the downward adjustment he received in the calculation of his offense level for cooperating with the government could not be offset by an upward adjustment for his obstruction of the investigation.
On August 15, 2002, the FDC intercepted a letter Fagan wrote to an unnamed person, in which he made threatening comments about his former girlfriend, who was a government witness in the case. Pursuant to § 3C1.1 of the Sentencing Guidelines, his offense level was increased by two for obstructive conduct relating to the offense of conviction. Pursuant to § 3E1.1, however, the court still granted him a decrease of three levels for accepting responsibility for his crime and permitting the government to avoid preparing for trial. (Presentence Investigation Report at 3.)
Defendant indicated at every step of the way during the plea colloquy that he understood both the waiver provision and the other provisions of the agreement into which he was entering. Given that defendant accepted the waiver knowingly and voluntarily, and that enforcing the waiver would not amount to a miscarriage of justice in this case, the court will enforce the waiver and dismiss defendant's § 2255 motion.
Order
AND NOW, this ____ day of October 2004, upon consideration of defendant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Document No. 39), and the government's motion to enforce the waiver provision in defendant's plea agreement and to dismiss his § 2255 motion (Document No. 46), IT IS HEREBY ORDERED that:1. The government's motion to enforce the waiver provision in defendant's plea agreement and to dismiss his § 2255 motion is GRANTED;
2. Defendant's motion to vacate, set aside, or correct sentence under § 2255 is DISMISSED WITH PREJUDICE;
3. The defendant having failed to make a substantial showing of the denial of a constitutional right, there is no ground to issue a certificate of appealability; and
4. The Clerk shall mark this case CLOSED for statistical purposes.