United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION
R.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
This
matter is before the court on Petitioner Christopher Gregory
Herrera's Motion to Vacate, Set Aside, or Correct
Sentence, filed pursuant to 28 U.S.C. § 2255. (Civil
Doc. # 1).[1]The motion has been fully briefed. (Civil
Docs. # 5, 6). For the reasons explained below, the motion is
due to be denied.
I.
Background
In
October 2013, the United States Attorney charged Herrera with
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). (Cr. Doc. # 1). Assistant Federal
Public Defender Rick Burgess represented Herrera (Cr. Doc. #
3), who ultimately pleaded guilty to the charge (Cr. Docs. #
16, 17). Following his guilty plea, Herrera was sentenced to
97 months of imprisonment. (Cr. Doc. # 31 at 2). That
sentence was within the applicable statutory and guideline
sentencing range for Herrera's crime. See 18
U.S.C. § 2252A(b)(1) (statutory range of zero to ten
years of imprisonment); (Cr. Doc. # 45 at 4) (guideline range
of 97 to 120 months of imprisonment).
With
three exceptions, Herrera waived his right to challenge his
conviction and sentence on appeal as well as in any
postconviction proceeding, including a motion under §
2255. (Cr. Doc. # 17 at 14-15). Those exceptions reserved
Herrera's right to challenge (1) a prison sentence
exceeding the statutory maximum sentence for his crime; (2) a
prison sentence exceeding the guideline sentencing range
determined by the court; and (3) ineffective assistance of
counsel. (Id.). Only the third exception is at issue
in this case.
Notwithstanding
this waiver, Herrera chose to appeal his conviction and
sentence. (Cr. Doc. # 36). The court appointed Kathy Luker to
represent Herrera on appeal. (Cr. Docs. # 40, 41). After
explaining to Herrera that he had no arguable issues of merit
he could raise on appeal (Civil Doc. # 6 at 27-28), Luker
moved to withdraw from further representation of Herrera and
filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). (Cr. Doc. # 47 at 2-3). The Eleventh Circuit
granted Luker's motion to withdraw and affirmed
Herrera's conviction and sentence. (Id.).
In
April 2013, Herrera filed the instant motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. (Civil Doc. # 1).
In his motion, Herrera contends that his guilty plea was
obtained in violation of Due Process and that he received
ineffective assistance of counsel in the trial court and on
appeal. (Id. at 4-9).
II.
Legal Standard
A
prisoner who files a § 2255 motion is generally entitled
to an evidentiary hearing “if he alleges facts that, if
true, would entitled him to relief.” Winthrop-Redin
v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014)
(internal quotation marks omitted). But no evidentiary
hearing is required if “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b).
Moreover, “a district court need not hold a hearing if
the allegations are ‘patently frivolous,'
‘based upon unsupported generalizations,' or
‘affirmatively contradicted by the record.'”
Winthrop-Redin, 767 F.3d at 1216.
When
collaterally attacking a sentence imposed on the basis of his
guilty plea, a prisoner bears an especially heavy burden.
Id. Because dispositions by guilty plea must be
“accorded a great measure of finality, ”
“the representations of the defendant, his lawyer, and
the prosecutor at a plea hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings.”
Id. (internal quotation marks and brackets omitted).
Where the “the record reflects the procedures of plea
negotiation and includes a verbatim transcript of the plea
colloquy, a petitioner challenging his plea will be entitled
to an evidentiary hearing only in the most extraordinary
circumstances.” Id. (internal quotation marks
omitted). A prisoner may not successfully challenge his
guilty plea through “[t]he subsequent presentation of .
. . contentions that in the face of the record are wholly
incredible.” Id. (internal quotation marks
omitted). Indeed, such challenges are “subject to
summary dismissal” without an evidentiary hearing.
Id.
III.
Analysis
Herrera
makes two constitutional claims in his § 2255 motion.
First, he claims his guilty plea was obtained in violation of
the Fifth Amendment's Due Process Clause. (Civil Doc. # 1
at 4-5). Second, Herrera claims he received ineffective
assistance of counsel in the trial court and on appeal, in
violation of his Sixth Amendment right to counsel, see
Strickland v. Washington, 466 U.S. 668 (1984). Herrera
is not entitled to relief on either claim.
Herrera's
first claim is foreclosed by his plea agreement, in which he
knowingly and voluntarily waived the right to collaterally
attack his sentence on Due Process grounds. And his
Strickland claims, though not waived, are entirely
without merit. Herrera's § 2255 motion is therefore
due to be denied without an evidentiary hearing.
A.
Herrera Waived His Right to Collaterally Attack His Sentence
on Due Process Grounds
Section
2255 generally allows a federal prisoner to collaterally
attack his sentence on grounds that it was imposed in
violation of the Constitution or laws of the United States.
28 U.S.C. § 2255(a). However, a prisoner may waive his
right to collaterally attack his sentence by plea agreement.
Williams v. United States, 396 F.3d 1340, 1342 (11th
Cir. 2005). Such collateral-attack waivers are valid if the
prisoner agrees to the waiver knowingly and voluntarily.
Id. Here, Herrera's plea agreement contained a
collateral-attack waiver by which he waived the right to
challenge his conviction or sentence in a § 2255 motion
except on three specified grounds: (1) a sentence in excess
of the statutory maximum; (2) a sentence in excess of the
guideline range; and (3) ineffective assistance of counsel.
(Cr. Doc. # 17 at 14-15). Because the court finds that
Herrera agreed to this waiver knowingly and voluntarily, it
concludes that Herrera may not now collaterally attack his
sentence on Due Process grounds.
The
record in Herrera's criminal case, including the plea
colloquy that the undersigned conducted with Herrera,
conclusively establishes that his plea (including the
collateral-attack waiver) was knowing and voluntary.
Herrera's “conclusory and incredible
allegations” to the contrary are insufficient to
warrant an evidentiary hearing or § 2255 relief.
Winthrop-Redin, 767 F.3d at 1216.
On
November 22, 2013, Herrera filed a Guilty Plea Advice of
Rights Certification with the court. (Cr. Doc. # 16). By
signing the Certification, Herrera indicated that he
understood (among other things) the following:
• That he would be placed under oath at his plea
hearing;
• That he would be subject to penalties for perjury if
he willfully made a false statement at his plea hearing;
• That he would be required at his plea hearing to
inform the court if anything was said or done that he
didn't understand;
• That he would be asked if his plea was voluntary, or
if anyone coerced or threatened him to plead guilty; and
• That he would be asked if he had time to discuss the
content of his plea agreement with his attorney and if he
personally understood the content of the plea agreement.
(Id. at 1-4). By signing the Certification, Herrera
acknowledged that his attorney, Rick Burgess, had
“explained to [him] in detail each of the matters set
out” in the Certification. (Id. at 4).
After
Herrera signed the Certification, on January 8, 2014, the
court held a plea hearing at which Herrera changed his plea
to guilty. (Cr. Doc. # 17). At his plea hearing, Herrera
confirmed that he could read; that he and Burgess, had read,
completed, and signed the Guilty Plea Advice of Rights
Certification; and that he understood all the information in
the Certification. (Cr. Doc. # 43 at 6-7). He also confirmed
he could understand everything the court was saying and that
he was able to communicate with his lawyer. (Id. at
7). The court explained that if there was anything Herrera
did not fully understand, or if he needed to talk to his
lawyer, he should let the court know. (Id. at 6).
The
court then proceeded to ascertain whether Herrera was
knowingly and voluntarily entering into his proposed plea
agreement with the United States. (Id. at 13-31).
The court asked Burgess whether he had a sufficient
opportunity to discuss the plea agreement with Herrera before
Herrera signed it, and Burgess responded that he had.
(Id. at 16). The court then had the following
exchange with Herrera:
THE COURT: Mr. Herrera, a few questions for you. At each
place where your signature purports to appear in the Plea
Agreement, is that actually your signature that you yourself
placed upon the document?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: And at each place where your initials appear in
the Plea Agreement, are those your initials that you yourself
placed upon the document?
THE DEFENDANT: Yes, sir.
THE COURT: And did you only sign the agreement and initial
each page after you were satisfied that you fully understood
the contents of the agreement and its operation and effect on
you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you have any questions concerning the meaning
of the agreement or its operation or effect on you that your
lawyer didn't answer to your satisfaction?
THE DEFENDANT: No, sir.
THE COURT: Any such questions that you failed to ask your
lawyer ...