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Reese v. United States

October 13, 2009

DEON REESE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 ("motion") filed by pro se Petitioner Deon Reese. (Docket No. 45). Petitioner claims that his sentence should be vacated because his counsel was ineffective, that evidence of his guilt was obtained in violation of his Fourth Amendment rights, and that the Court erred at sentencing. (Id.). The Government maintains that Petitioner's motion should be denied as he waived his right to file a motion under 28 U.S.C. § 2255 in a plea agreement with the Government and that his claims otherwise lack merit. (Docket No. 58). Based on the following, the valid waiver in Petitioner's plea agreement will be enforced and, therefore, Petitioner's motion [45] is DENIED.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 15, 2008, a federal grand jury returned a two-count indictment against Petitioner.

(Docket No. 1). The indictment charged him with two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) as a result of his possession of a.45 caliber pistol (count one) and.45 caliber ammunition (count two) on February 26, 2007, after previously sustaining at least two felony convictions for either a crime of violence or a controlled substance offense. (Id.). Thereafter, on July 31, 2008, Petitioner pled guilty to count one of the indictment pursuant to a written plea agreement with the Government. (Docket No. 25). In addition to Petitioner's guilty plea to count one, the written plea agreement required him to "acknowledge responsibility for the conduct charged in Count Two of the Indictment at Criminal No. 08-16," pay a special assessment to the Clerk of Court, and waive former jeopardy or double jeopardy claims, post-conviction DNA testing and the preservation of evidence for same. (Docket No. 26). He also agreed to waive the right to initiate post-conviction proceedings challenging his sentence. Specifically, the plea agreement provides that:

Deon Reese waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, Deon Reese may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Deon Reese may take a direct appeal from the sentence.

Deon Reese further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Docket No. 26 at ¶ A.13). The plea agreement concludes, stating that "[t]his letter sets forth the full and complete terms and conditions of the agreement between Deon Reese and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied." (Docket No. 26 at 6). Further, Petitioner asserted that "I have received this letter from my attorney, David Chontos, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter." The agreement is executed by Deon Reese on 7/31/08 and signed as witnessed by: David Chontos, Esquire, Counsel for Deon Reese. (Id. at 7).

A change-of-plea hearing was held before the undersigned on July 31, 2008. During the change-of-plea hearing, the Court directly questioned Petitioner regarding the plea agreement, including whether he had: read the plea agreement; understood its contents; reviewed it with his counsel; asked his counsel any questions about the agreement and if his counsel had answered any such questions; and, affixed his signature to the final page. Sealed Tr. Plea Hr'g 7/31/09 at 2-3. Petitioner answered affirmatively to all of the Court's questions. (Id.). Government counsel then read the salient terms of the plea agreement on the record, specifically stating that the Petitioner agreed to waive his right to file a motion to vacate sentence pursuant to 18 U.S.C. § 2255 and his right to take a direct appeal, subject to limited exceptions. (Id. at 3-7). Upon further questioning by the Court, Petitioner asserted that he agreed with the terms of the plea agreement as stated. (Id. at 8). The Court then questioned the Petitioner in the following manner.

The Court: Mr. Reese, do you understand that, generally, you or the government would have the right to appeal any sentence that this Court may impose, but you've entered into a plea agreement under which you've waived some or all of your appellate rights?

[Petitioner]: Yes, ma'am.

The Court: Including a right to take a direct appeal under 28, U.S.C. [§] 1291 or 18 U.S.C. [§] 3742 subject to the exceptions that were spelled out in ...


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