United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
K. LARKINS III, UNITED STATES MAGISTRATE JUDGE.
Cathine Lavina Sellers, confined in the Federal Prison Camp
in Alderson, West Virginia, submitted a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence
by a person in federal custody (“motion to
vacate”). [Doc. 52-1.] The Government filed a motion to
dismiss [Doc. 56], and Movant filed a response in opposition
[Doc. 58]. For the reasons given below, the undersigned
recommends that the Government's motion to dismiss be
January 30, 2018, Movant pleaded guilty to possession with
intent to distribute furanyl-fentanyl, in violation of 21
U.S.C. § 841(a)(1) & (b)(1)(C). [Docs. 16, 40.] On
May 24, 2018, the District Court filed the Judgment and
Commitment, sentencing Movant to thirty-six months of
imprisonment followed by three years of supervised release.
[Doc. 46.] Movant did not appeal. [Doc. 52-1 at 2.] Movant
timely executed her motion to vacate on September 4, 2018.
[Id. at 13.] Movant claims that she received an
improper sentencing enhancement for possession of a firearm.
[Id. at 14-15.]
if a challenge to a conviction or sentence is not made on
direct appeal, it will be procedurally barred in a 28 U.S.C.
§ 2255 challenge” unless the movant
“overcome[s] this procedural default by showing both
cause for [her] default as well as demonstrating actual
prejudice suffered as a result of the alleged error.”
Black v. United States, 373 F.3d 1140, 1142 (11th
Cir. 2004). “[T]o show cause for procedural default, [a
§ 2255 movant] must show that some objective factor
external to the defense prevented [the movant] or [her]
counsel from raising [the] claims on direct appeal and that
this factor cannot be fairly attributable to [the
movant's] own conduct.” Lynn v. United
States, 365 F.3d 1225, 1235 (11th Cir. 2004) (per
curiam). To demonstrate actual prejudice, a movant must show
that the alleged error “worked to [her] actual
and substantial disadvantage, infecting [her] entire trial
with error of constitutional dimensions.” Reece v.
United States, 119 F.3d 1462, 1467 (11th Cir. 1997)
(quoting United States v. Frady, 456 U.S. 152, 170
alternative to showing cause and actual prejudice, a §
2255 movant may overcome a procedural default if “a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.”
Lynn, 365 F.3d at 1234-35 (quoting Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (per
curiam)) (internal quotation marks omitted). “Actual
innocence means factual innocence, not mere legal
innocence.” Id. at 1235 n.18 (internal
quotation marks omitted).
ground for relief is procedurally defaulted because she
failed to (1) raise it on direct appeal, or (2) either (a)
show cause and actual prejudice, or (b) proof of actual
innocence. Even if Movant had overcome her default, the
Government correctly explains in its motion to dismiss that
Movant's ground for relief would nevertheless fail
because her plea agreement contains a valid appeal waiver.
[Doc. 56 at 1-10.]
is well-settled that sentence-appeal waivers are valid if
made knowingly and voluntarily.” Williams v. United
States, 396 F.3d 1340, 1341 (11th Cir. 2005).
“[T]he government must show that either (1) the
district court specifically questioned [Movant] concerning
the sentence appeal waiver during the [plea] colloquy, or (2)
it is manifestly clear from the record that [Movant]
otherwise understood the full significance of the
waiver.” Id. (quoting United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)).
plea agreement contains the following appeal waiver:
LIMITED WAIVER OF APPEAL: To the maximum extent permitted by
federal law, [Movant] voluntarily and expressly waives the
right to appeal her conviction and sentence and the right to
collaterally attack her conviction and sentence in any
post-conviction proceeding (including, but not limited to,
motions filed pursuant to 28 U.S.C. § 2255) on any
ground, except that [Movant] may file a direct appeal of an
upward departure or upward variance above the sentencing
guideline range as calculated by the district court. . . .
[Doc. 40-1 at 12.] Movant signed the agreement, indicating
that she (1) read and understood its terms and conditions,
and (2) consented to them. [Id. at 15.] The District
Court specifically questioned Movant regarding the appeal
waiver during the plea colloquy, and Movant indicated that
she understood she was giving up her right to appeal as
specified in the plea agreement. [Doc. 56-1 at 20-22.]
Therefore, Movant's appeal waiver is valid.
the undersigned recommends that the Government's ...