United States District Court, Eastern District of Pennsylvania
JOEL H. SLOMSKY, J.
Defendant, James A. Morgan (“Morgan” or “Defendant”) filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc. No. 69.) In turn, the Government filed a Motion to Dismiss the § 2255 petition (Doc. No. 71), to which Morgan has not responded. As more thoroughly explained below, Morgan’s guilty plea agreement contained an appellate waiver provision. Because he entered into the guilty plea agreement and the appellate waiver provision knowingly and voluntarily, he has waived his right to bring the claims set forth in the present § 2255 Motion. Moreover, there are no allegations of a miscarriage of justice sufficient enough to override the waiver. As a result, the Government’s Motion will be granted, and Morgan’s § 2255 Motion will be dismissed.
On January 19, 2012, a federal grand jury returned a ten-count indictment charging James Morgan with the following offenses: one count of using interstate communications to attempt to seduce a minor, in violation of 18 U.S.C. § 2422(b) (Count 1); four counts of transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470 (Counts 2-5); four counts of transporting and shipping child pornography images, in violation of 18 U.S.C. § 2252(a)(1) (Counts 6-9); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4) (Count 10). (Doc. No. 8.)
On January 28, 2013, Morgan pled guilty to all of the charges in the indictment. Under the terms of the plea agreement, Morgan, 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 Motion. (Doc. No. 50.) Specifically, the appellate waiver in the plea agreement stated:
8. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 3 above;
(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines;
(3) the sentencing judge, exercising the Court’s discretion pursuant to United States v. Booker, 543 U.S. 220 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court; and/or
(4) The district court decided adversely to the defendant the following issue: The defendant’s motion to suppress the search of the defendant’s home and computer and the statements made by the defendant at the time he was interviewed by agents from the Federal Bureau of Investigations.
If the defendant does appeal pursuant to this paragraph, no issue may be presented by the defendant on appeal other than those described in this paragraph.
(Doc. No. 50 at 5-6.)
On January 28, 2013, during the guilty plea colloquy, the Court reviewed each of these provisions with Morgan. (N.T., Guilty Plea Hearing, January 28, 2013 at 16:14-19:11.) Then, on August 1, 2013, the Court entered judgment against Morgan and imposed a total term of imprisonment of 126 months, followed by a term of supervised release of ten years, along with a $1, 000 special assessment. (Doc. No. 60.) Four days later, on August 5, 2013, Morgan filed a timely appeal contending that the District Court had improperly denied Motions to Suppress, which he previously filed in 2012. (Doc. No. 61.) On April 1, 2014, the Third Circuit affirmed the Court’s denial of Morgan’s Motions to Suppress. United States v. Morgan, 562 F. App’x 123 (3d Cir. 2014).
Subsequently, on July 17, 2014, Morgan filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc. No. 69.) On July 25, 2014, the Government filed a Motion to Dismiss in response. (Doc. No. 71.) Morgan has not responded to the Government’s Motion. For reasons that follow, the Court will grant the Government’s Motion, dismissing Morgan’s § 2255 Motion.
III. LEGAL STANDARD
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.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008) (citations ommitted). According to the Third Circuit:
Whereas a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative 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 United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001)). When reviewing the enforcement of an appellate/collateral waiver, the Court must scrutinize the guilty plea colloquy and ensure that the Court “‘inform[ed] the defendant of, and determine[d] that the defendant underst[ood] . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence’ as Federal Rule of Criminal Procedure 11(b)(1)(N) requires.” Id. at 239.
In determining whether a miscarriage of justice would occur if the waiver were enforced, there is not “a list of specific circumstances which would give rise to, or constitute, a miscarriage of justice.” Id. at 243. Instead, the court must employ a “common sense approach, ” considering factors such as:
[T]he 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.
Id. at 242-43 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Declining to enforce an appellate waiver due to a miscarriage of justice will be done sparingly, in narrow circumstances. United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (quoting Teeter, 257 F.3d at 26)).
A. The Waiver in Morgan’s Plea Agreement was Knowing and Voluntary
Before enforcing the appellate waiver against Morgan, the Court must first determine whether the waiver was knowing and voluntary. During the guilty plea colloquy held on January 28, 2013, the following exchange took place:
Court: Mr. Morgan, I want to go over the plea agreement with you. I’m not going to read every word of it, but I just want to make sure that you understand the essential terms. And the first thing I’m going to ask you to do is turn to page 7, and that’s a signature page. Do you see it?
Court: Is that your signature on there?
Morgan: Yes, it is.
Court: All right. Now, did you voluntarily sign the ...