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United States v. McIntosh

United States District Court, W.D. Pennsylvania

February 27, 2014

UNITED STATES OF AMERICA,
v.
KEVIN MICHAEL McINTOSH, Defendant/Petitioner.

ORDER

ALAN N. BLOCH, District Judge.

AND NOW, this 27th day of February, 2014, upon consideration of Petitioner's pro se "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (document No. 398) and legal memorandum in support thereof (document No. 399), filed in the above captioned matter on April 29, 2013, and in further consideration of Petitioner's answer to the Court's April 30, 2013 Show Cause Order (document No. 404), filed on May 15, 2013,

IT IS HEREBY ORDERED that Petitioner's Motion is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall be issued.

MOREOVER, IT IS HEREBY ORDERED that Petitioner's pro se "Motion for Leave to Amend § 2255 Motion" (document No. 414), filed in the above captioned matter on July 31, 2013 is DENIED AS MOOT.

I. Background

On November 30, 2011, Petitioner pled guilty to Count Seven of the indictment, charging him with conspiracy to possess with the intent to distribute and distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, contrary to 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A) (ii), in violation of 21 U.S.C. §846. In connection with his plea, Petitioner and the Government entered into a written plea agreement containing several provisions, including a stipulation as to the type and quantity of controlled substance attributable to Petitioner for purposes of USSG § 2D1.1, which was at least 5 kilograms but less than 15 kilograms of cocaine.

The plea agreement further included a waiver of certain appellate rights as well as a provision stating that Petitioner "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." The agreement further stated that it

sets forth the full and complete terms and conditions of the agreement between [Petitioner] and the [Government], and there are no other agreements, promises, terms or conditions, express or implied.

Petitioner signed the agreement and agreed at the plea hearing that he had agreed to the terms set forth in the agreement, which both the Government and the Court reviewed for him. with respect to the appellate and collateral waiver portion of the agreement, the Court specifically inquired as to whether anyone had made a threat to Petitioner or anyone else that forced him to enter into the waivers, and Petitioner responded that no one had done so. The Court then asked whether anyone had made any promises to Petitioner, other than the promises contained in the plea agreement, that induced him to waive his rights, and Petitioner again replied in the negative. The Court thus found that Petitioner had entered into the waivers knowingly and voluntarily and accepted Petitioner's plea.

On March 22, 2012, the final Presentence Investigation Report ("PIR") was filed, applying the agreed-upon drug quantity of at least 5 but not more than 15 kilograms of cocaine. Petitioner did not object to the guideline determinations, but did file a sentencing memorandum seeking a downward variance on several grounds, including that he played a minor role in the conspiracy and that he was the caretaker for his sick aunt. On May 1, 2012, the Court sentenced Petitioner to a term of imprisonment of 60 months, to be followed by a term of supervised release of five years.

Petitioner did not appeal his conviction or sentence. Instead, he filed the present motion pursuant to 28 U.S.C. § 2255 on April 29, 2013. Because the Court was aware of the waiver of the right to file a Section 2255 motion contained in the plea agreement entered into by Petitioner, it ordered him to show cause why his motion should not be dismissed on the basis of this waiver. Petitioner filed a response to the Court's order on May 15, 2013.

II. Discussion

The Court finds Petitioner's waiver of his right to file a collateral proceeding attacking his conviction or sentence to be enforceable. As noted, Petitioner filed his motion pursuant to Section 2255. This section permits a prisoner sentenced by a federal court to move the court that imposed the sentence to "vacate, set aside, or correct the sentence" where: (1) the sentence was imposed in violation of the Constitution or laws of the United Statesi (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by lawi or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). However, a criminal defendant may waive his right to file a motion under Section 2255 or to otherwise seek collateral relief. Such a waiver is valid if entered into "knowingly and voluntarily" unless it would work a "miscarriage of justice." United States v. Khattak , 273 F.3d 557, 558 (3d Cir. 2001) United States v. Mabry , 536 F.3d 231, 237-38 (3d Cir. 2008). A district court has an affirmative duty to conduct an evaluation of the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice. See Mabry , 536 F.3d at 237-38.

Here, Petitioner clearly and unambiguously waived his right to file a motion under Section 2255 or to otherwise seek collateral relief, and the record demonstrates that the waiver is enforceable. The Court questioned Petitioner extensively regarding the waiver of his ...


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