United States District Court, S.D. Georgia, Statesboro Division
ANNIE L. HOPKINS, Movant,
UNITED STATES OF AMERICA, Respondent. No. CR612-011.
REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
Annie Hopkins pled guilty to conspiracy to defraud the government. (Cr. doc. 133.) In doing so, she waived both her direct appeal and collateral review rights. (Cr. doc. 165.) Despite the waiver, she has returned to this Court seeking 28 U.S.C. § 2255 relief. (Doc. 1.) Her motion should be denied.
Hopkins, who was on federal disability from 1997 until the date of the offense conduct, participated in a scheme to file fraudulent tax returns using the names and social security numbers of inmates in the custody of the Federal Bureau of Prisons. (PSI at 4-7.) The total intended loss was $2, 861, 841.39, though the IRS suffered an actual loss of only $305, 904.48. (Id. at 7-8.) Based on the loss calculations, her base offense level under the United States Sentencing Guidelines was increased by 18 levels. (Id. at 8.) Hopkins contends that: (1) the intended loss was improperly calculated, (2) she was only involved in the conspiracy for a short period of time and should only be held accountable for that shortened time period, (3) counsel was ineffective for failing to object to the PSI's loss amount, and (4) accounting for intended losses greater than actual losses violates the ex post facto clause. (Doc. 1 at 5-8.) Hopkins does not even acknowledge the double-waiver and no-appeal directive in her § 2255 filings. Nevertheless, the Court must determine its validity and preclusive effect.
"A plea agreement is a contract between the Government and a criminal defendant." Thompson v. United States, 353 F.App'x 234, 235 (11th Cir. 2009) (quoting United States v. Howle, 166 F.3d 1166, 1168 (11th Cir. 1999)). Hence,
it should be given the interpretation that the parties intended. United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)).... "[T]he defendant's knowledge and understanding of the sentence appeal waiver is one of the components that constitutes the core concern' of the defendant's right to be aware of the direct consequences of his guilty plea." United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993) (internal quotation marks omitted). To demonstrate that a sentence-appeal waiver is sufficiently knowing and voluntary to be enforceable, the government must show that either (1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the colloquy; or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver. Id.
Thompson, 353 F.App'x at 235; United States v. Ruff, 2011 WL 205382 at *1 (11th Cir. Jan. 5, 2011). As to § 2255 collateral bars,
"[alt a minimum, the would-be petitioner must know at the time of the guilty plea that the right to federal habeas review exists, and he must realize he is giving up that right as part of his plea bargain." Allen v. Thomas, 161 F.3d 667, 670 (11th Cir. 1998). When a valid sentence-appeal waiver containing express language waiving the right to attack a sentence collaterally is entered into knowingly and voluntarily, it will be enforceable and serve to prevent a movant from collaterally attacking a sentence on the basis of ineffective assistance of counsel. [United States v.] Williams, 396 F.3d [1340, 1342 (11th Cir. 2005)].
Thompson, 353 F.App'x at 235.
Hopkins never contests the government's assertion that the waiver was knowingly and voluntarily entered. She could not win such a claim in any event. The waiver itself explicitly referenced § 2255 proceedings and noted that Hopkins would be forever barred from challenging her conviction and sentence under that statute. (Cr. doc. 165 at 7.) She signed the plea agreement (id. at 10) and testified at the change of plea hearing that she had read the plea agreement, reviewed it with counsel, and understood it (cr. doc. 213 at 16, 24, 27, 38, 41, 43, 54, 59).
Moreover, the judge discussed the appeal and collaterai waiver at length during movant's Rule 11 hearing:
Q: You're giving up your right to complain about how your lawyer has represented you, how the government has treated you, how your co-defendants, what they've said about you and how the Court has dealt with you, including the government's prosecutors, the grand jury, the magistrate judge and this judge. You understand that?
A: Yes, sir.
(Cr. doc. 213 at 24.) Shortly thereafter, the Court again ...