The opinion of the court was delivered by: Yohn, J.
Defendant, Darryl Buck ("Buck") has filed a pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss to which Buck has filed a response. As more thoroughly explained below, Buck's guilty plea agreement contained an appellate waiver provision. Because he entered into the guilty plea agreement knowingly and voluntarily, he has waived his right to bring the claims in this motion. Moreover, there are no sufficient allegations of a miscarriage of justice to override the waiver. As a result, the government's motion will be granted.
I. Facts and Procedural History
On June 24, 2008, a grand jury returned a one-count indictment charging Buck with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ("§ 922(g)(1)"). On October 21, 2008, the grand jury returned a superseding indictment charging Buck with possession of a firearm by a convicted felon and as an armed career criminal in violation § 922(g)(1) and 18 U.S.C. § 924(e) ("§ 924(e)"), respectively.
On March 25, 2009, Buck pled guilty to the violation of § 922(g)(1). Under the plea agreement, inter alia: (1) the government agreed not to advocate a sentence in excess of the statutory mandatory minimum; and (2) Buck, with limited exceptions, waived his right to appeal directly to the Third Circuit and to collaterally attack his conviction or sentence (such as through a § 2255 habeas corpus motion). During the October 15, 2009, sentencing hearing, I also found Buck guilty of § 924(e) based on his prior convictions. As a result, I sentenced Buck to 180 months of imprisonment, which was the mandatory minimum sentence.
The waiver in the guilty plea agreement contained an exception which authorized a direct appeal concerning the court's determination with reference to whether Buck had three prior convictions for a violent felony or a serious drug offense for purposes of 18 U.S.C. § 924(e) and the Armed Career Criminal sentencing guideline. Buck exercised his right of appeal on this issue. The Third Circuit affirmed on July 18, 2011.
Buck filed his § 2255 habeas corpusmotion on December 9, 2011. The government filed its motion to dismiss on January 19, 2012, to which Buck filed a response on February 6, 2012.
Criminal defendants may waive both constitutional and statutory rights, including the right to appeal, "provided they do so voluntarily and with knowledge of the nature and consequences of the waiver" and the enforcement of the waiver "does not work a miscarriage of justice." U.S. v. Mabry, 536 F.3d 231, 236-38 (3d Cir. 2008). The defendant has the burden of establishing that his waiver was unknowing or involuntary, while the court has the "duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record evidence before it." Id. at 237-38 (citing U.S. v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001)). As part of its duty, the district court must inform the defendant of, and determine that the defendant understands, the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence as required by Federal Rule of Criminal Procedure 11(b)(1)(N). Id. at 239.
In examining whether a miscarriage of justice would occur if the waiver were enforced, there is no specific list of circumstances which give rise to a miscarriage of justice. Id. at 242. Instead, the court must adopt a common sense approach, investigating, inter alia, "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", before invalidating a waiver due to a "miscarriage of justice." Id. at 242-43 (quoting U.S. v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Granting an exception to a waiver because of a miscarriage of justice must be done sparingly and only where manifest injustice would otherwise result. U.S. v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (citing Teeter, 257 F.3d at 26).
The waiver does not bar the assertion of constitutional claims that the relevant case law holds cannot be waived. Buck does not identify any such claim. Moreover, the right to mount a collateral attack pursuant to § 2255 survives a waiver only with respect to those discrete claims which relate directly to the negotiation of the waiver. Again, Buck makes no such claim here.
A. Claims One, Two and Four are Patently Frivolous
Bucks raises four claims in his motion. Claims One, Two and Four are patently frivolous and can be disposed ...