United States District Court, M.D. Pennsylvania
March 10, 2015
UNITED STATES OF AMERICA,
NGAI ERIC HICKMAN, Petitioner.
CHRISTOPHER C. CONNER, Chief District Judge.
AND NOW, this 10th day of March, 2015, upon consideration of the motion (Doc. 67) of Ngai Eric Hickman ("Hickman") to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, wherein Hickman contends that the court incorrectly classified him at sentencing as a career offender under U.S.S.G. § 4B1.1, and that without such a classification Hickman would become eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the U.S. Sentencing Guidelines,  and observing that a motion under § 2255 must be filed within one year of the latest of (1) the date on which the judgment of conviction becomes final, (2) the date on which an impediment to the motion created by governmental action is removed, (3) the date on which the Supreme Court initially recognized a right made retroactively applicable to cases on collateral review, or (4) the date on which the facts supporting the motion could have been discovered through due diligence, 28 U.S.C. § 2255(f), and further observing that Hickman does not allege that the government prevented him from timely filing his motion, that the Supreme Court made a right retroactively applicable in a manner that delayed the commencement of the limitations period,  or that any newly discovered facts trigger a different limitations period, and it appearing that the one-year limitations period applicable to Hickman's § 2255 motion began to run on May 21, 2011 when Hickman's judgment of conviction became final and expired on May 21, 2012,  but that Hickman filed the instant motion on July 1, 2014, and it further appearing that there is no basis to justify equitable tolling of the limitations period,  and the court therefore concluding that Hickman's § 2255 motion is untimely, and, as an additional basis for denial of Hickman's § 2255 motion,  the court noting that on November 22, 2010, Hickman entered a plea of guilty pursuant to a written plea agreement (see Doc. 25), and that under the plain terms of the plea agreement Hickman waived his "right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255" (id. ¶ 17), and finding that Hickman's collateral challenge to his career offender classification clearly falls within the scope of his appellate waiver, and further finding that Hickman's waiver was both knowing and voluntary and that enforcement of the waiver will not result in a miscarriage of justice, see United States v. Mabry , 536 F.3d 231, 237-38 (3d Cir. 2008) (holding that waivers of collateral appeal rights are enforceable so long as "they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice"),  and the court concluding that the instant § 2255 motion is barred by the terms of Hickman's plea agreement, it is hereby ORDERED that:
1. Hickman's motion (Doc. 67) to vacate, set aside, or correct sentence is DENIED to the extent that it is based on 28 U.S.C. § 2255 and is DENIED to the extent that it seeks a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the U.S. Sentencing Guidelines.
2. A certificate of appealability is DENIED. See R. GOVERNING § 2255 CASES 11(a).