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Parham v. United States

United States District Court, N.D. Georgia, Atlanta Division

August 28, 2017

ALLEN PARHAM, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:17-CV-2803-SCJ-LTW

         PRISONER § 2255 MOTION 28 U.S.C. § 2255

          ORDER

          STEVE C. JONES, UNITED STATES DISTRICT JUDGE.

         Movant, pro se, filed a motion under 28 U.S.C. § 2255 challenging his prison sentence. (Doc. 198 in 1:14-cr-106-SCJ-LTW.) Magistrate Judge Walker screened the motion as required by Rule 4 of the Rules Governing § 2255 Proceedings for the U.S. District Courts. (Doc. 199.) Judge Walker issued a Report and Recommendation (“R&R”) that the motion be dismissed because the appeal waiver in the plea agreement that Movant negotiated with Respondent bars him from pursuing relief under § 2255. (Id.) Movant filed objections to the R&R. (Doc. 201.)

         A district judge must conduct a careful and complete review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). The district judge must “make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3). Those portions of the R&R for which there is no objection are reviewed only for clear error. See Fed. R. Civ. P. 72(b)(3).

         The R&R described the appeal waiver in Movant's plea agreement - which includes waiver of “motions filed pursuant to 28 U.S.C. § 2255” - and the discussion of the appeal waiver at the plea hearing by the Court, Movant, and Respondent's counsel. (Doc. 199 at 1-2, 5-7.) The R&R also discussed the law governing the enforceability of appeal waivers. (Id. at 3-4.) Movant does not dispute the terms of the appeal waiver or the applicable law. (See Docs. 198, 198-1, 201.)

         In fact, Movant knew when he filed his § 2255 motion that the appeal waiver was an obstacle in his path. His direct appeal was dismissed because of the appeal waiver. (Doc. 191; Doc. 198-1 at 2.) When he later prepared his brief in support of his § 2255 motion, Movant discussed the law governing appeal waivers and how to avoid them. (Doc. 198-1 at 3-5.)

         The primary way to avoid a waiver is to show that one did not agree to the waiver voluntarily or with full knowledge of its consequences because of the ineffective assistance of counsel. See Patel v. United States, 252 Fed.Appx. 970, 974 (11th Cir. 2007) (holding that appeal waiver did not bar § 2255 movant's claim that “explicitly challenge[d] the validity of his guilty plea” on the basis of ineffective assistance of counsel). Movant learned that law and made that very argument - that his appeal waiver was the product of ineffective assistance of counsel - in his § 2255 motion. (Docs. 198, 198-1.)

         Despite researching the law on avoiding appeal waivers and including that law in his § 2255 motion, Movant did not include what he did not need to research: the facts supporting his claim that it was his lawyer's ineffectiveness that caused him to do what he now says he did not want to do - agree to the appeal waiver. In his § 2255 motion and supporting brief, Movant said only the following about counsel's alleged ineffectiveness:

[C]ounsel proved to be ineffective assistance [sic] in the critical stages of plea negotiations by not preserving [Movant's] right to appeal. . . . .
Even though this Court may find that [Movant] “knowingly and voluntary” [sic] waived his right to appeal[, ] such a waiver does not preclude [Movant] from pursuing his right to challenge “ineffective assistance” of counsel . . . in contrast to the United [S]tates Constitution and Sixth Amendment. . . . .
[T]here are many ways in which an agreement or accepting an agreement, could be entered into without the requisite [] “knowledge of voluntariness”. Especially agreements that are entered into upon the advise [sic] of “ineffective assistance” of counsel's undo [sic] coercion to get his client to agree to such a waiver of right. [Movant] may have waived his appeal right. However[, ] such a waiver is not enforceable based on his counsel['s] deficient performance causing him prejudice to the out come of his case.
. . . .
[D]ue to having ineffective assisatance [sic] of counel's [sic] bad advise [sic] of leaving an appeal waiver included in the plea agreement precluded an appeal (direct appeal), challenging this matter.

         (Doc. 198-1 at 3-4 (citation omitted).) Movant did not identify his counsel's alleged “deficient performance, ” the bad “advi[c]e” his counsel allegedly gave him, or any discussions he had with his ...


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