United States District Court, Middle District of Pennsylvania
Sylvia H. Rambo, United States District Judge
Before the court is a motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255 (Doc. 18) by Petitioner Clayton Lee Waagner. Waagner was initially indicted for bank robbery in the Middle District of Pennsylvania on June 6, 2001. Due to other charges and trials in other jurisdictions, Waagner was not returned to the Middle District of Pennsylvania until 2005. James V. Wade, Esquire, the Chief Federal Public Defender for the Middle District of Pennsylvania, was appointed to represent Waagner on August 29, 2005.
Prior to the formal appointment of Mr. Wade as counsel for Waagner, Mr. Wade and Assistant United States Attorney Martin Carlson, with the consent of Waagner, drafted a binding plea agreement in which Waagner would plead guilty to the charges in the Middle District of Pennsylvania as well as charges to be transferred to the Middle District of Pennsylvania from the federal courts of the District of Mississippi, the Eastern District of Tennessee, the District of West Virginia, and the Western District of Tennessee. Pursuant to this plea agreement, he would receive a term of imprisonment of 400 months. Waagner signed the plea agreement and entered pleas of guilty on December 12, 2006 (Doc. 12). Waagner was sentenced on the same date. Judgment was entered on December 14, 2006 (Doc. 15). Waagner did not take a direct appeal.
This court will conduct a preliminary examination of the petition pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings to determine if Waagner is entitled to relief, prior to directing service of the petition. The petition sets forth the following claims: (1) denial of right to counsel; (2) that Waagner was erroneously sentenced as an armed career criminal; (3) that 18 U.S.C. § 924(e) is unconstitutional; and (4) actual innocence. These claims, except for the actual innocence claim, will not be addressed because this court is without jurisdiction to do so.
A. Binding Plea Agreement - Waiver
Waagner has waived his right to appeal under 28 U.S.C. § 2255 pursuant to the binding plea agreement. The plea agreement in this case was entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). (Doc. 5, ¶ 12.) In that agreement, the government and Waagner stipulated and agreed to the offense level, the criminal history category, and sentence. That agreement states that Waagner “voluntarily and expressly waives all rights to appeal the defendant’s conviction, sentence, or any other matter relating to this prosecution.” (Doc. 5, ¶ 14.) Paragraph 14(b) provides that Waagner could file a direct appeal “but may raise only claims that the defendant’s sentence on any count of conviction exceeds the statutory maximum.” As stated earlier, Waagner did not take a direct appeal.
At the combined plea and sentencing proceeding, Waagner was sworn in and questioned by the court. He was advised of his rights, the potential maximum sentences, his understanding of the plea agreement, and gave acknowledgment of his signature to the plea agreement. Waagner has voluntarily waived his right to appeal.
B. Timeliness of Appeal
Waagner waived his right to appeal and the appeal is otherwise late. Waagner was sentenced on December 12, 2006 and judgment was entered on December 14, 2006. He had until December 28, 2006 to file a notice of appeal. Waagner had one year from December 28, 2006 to file for relief pursuant to 28 U.S.C. § 2255(f)(1). Over eight years have expired from the time he should have filed his § 2255 petition. The petition is, therefore, untimely.
Waagner claims that his petition is timely under 28 U.S.C. § 2255(g)(3), i.e. “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” He cites in support of this the case of Descamps v. United States, __ U.S. __, 133 S.Ct. 2276 (2013). Descamps addressed the issue that, when determining whether a post conviction is for a violent felony, including burglary, arson, or extortion, within the meaning of the Armed Career Criminal Act, courts should use the “categorical approach” under which they compare the elements of the statute forming the basis of the defendant’s conviction with the offense as commonly understood; the prior conviction qualifies as an Armed Career Criminal Act predicate only if the statute’s elements are the same as or narrower than, those of the generic offense. Id. at 2279.
Waagner has not cited as to how his Armed Career Criminal Act prior offenses did not meet this test. Waagner was charged, in part, as follows: In case number 1:06-CR-145, Count 3 charged a violation of 18 U.S.C. § 922(g)(1); in case number 1:06-CR-147, Count 2 charged a violation of 18 U.S.C. § 922(g)(2); in case number 1:06-CR-228, Count 2 charged a violation of 18 U.S.C. § 922(g)(1). An individual who violates 18 U.S.C. § 922(g) is subject to punishment under 18 ...