United States v. Felder ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Crim. Action No. 00-254 (RWR)
)
WAYNE FELDER, )
)
Defendant. )
____________________________ )
MEMORANDUM ORDER
Petitioner Wayne Felder filed a motion under 28 U.S.C.
§ 2255 to vacate his sentence, arguing that his counsel provided
ineffective assistance by not filing an appeal, by not adequately
contesting an improper role enhancement under the sentencing
guidelines, and by advising him to plead guilty without warning
him about the role enhancements; that an unconstitutional prior
conviction was used to enhance his criminal history; and that his
sentence was unconstitutional under United States v. Booker, 543
U.S. 220 (2005). On June 24, 2008, the petitioner’s motion was
denied with respect to all of his claims except for the claim
that his attorney failed to appeal when requested. See United
States v. Felder, 563 F. Supp. 2d 160, 169 (D.D.C. 2008) (“2008
Memorandum and Order”). An evidentiary hearing was ordered to
resolve the sole remaining issue of whether the petitioner asked
his attorney to file an appeal. Id. Before the hearing was
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held, the petitioner filed a motion under 18 U.S.C. § 3583(c)(2)
to reduce his sentence. The parties conferred and reached a
stipulated disposition of both the petitioner’s motion to vacate
and his motion to reduce his sentence. The disposition was
accepted, the petitioner was resentenced to the stipulated term
of imprisonment of 135 months, and the petitioner agreed in his
stipulated disposition that he would refrain from appealing the
sentence. After an order effectuating the stipulated disposition
was entered, the petitioner –– although represented by counsel ––
filed pro se a notice of appeal. The court of appeals ordered
the appeal to be held in abeyance until this Court determines in
the first instance whether a certificate of appealability is
warranted.
The petitioner argues that a certificate of appealability is
warranted notwithstanding the stipulated disposition because “the
disposition does not by its terms apply” to any of the
ineffective assistance of counsel issues that were resolved in
the 2008 Memorandum and Order denying in part the petitioner’s
motion to vacate. (Pet’r’s Suppl. to Appl. for Certificate of
Appealability at 2.) However, the stipulated disposition
provides for “a full disposition of the [petitioner]’s
ineffective assistance of counsel claims with respect to his
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former trial counsel” (Stipulated Disposition at 1 (emphasis
added)), not merely a resolution of the sole ineffective
assistance issue outstanding at the time the disposition was
entered. Because the petitioner agreed “to refrain from
appealing from this stipulated disposition or the Court’s
resentencing of the [petitioner] pursuant to this stipulated
disposition” (id.), he waived his right to appeal his sentence on
the basis of any of the issues he raised in his motion to vacate,
including those that were resolved in the 2008 Memorandum and
Order.
“A defendant may waive his right to appeal his sentence as
long as his decision is knowing, intelligent, and voluntary.”
United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).
Even an anticipatory waiver of a defendant’s right to appeal ––
one made before the defendant knows what his sentence will be ––
is “a knowing waiver if the defendant is aware of and understands
the risks involved in his decision.” Id. However, “a waiver
should not be enforced insofar as the defendant makes a colorable
claim that he received ineffective assistance of counsel in
agreeing to the waiver[.]”1 Id. at 530.
1
The petitioner has raised no such claim here.
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In the stipulated disposition, which the petitioner signed,
the petitioner said:
I have read this Stipulated Disposition and have
discussed it with my attorney . . . .
I fully understand the terms of this Stipulated
Disposition and agree to it without reservation.
I do this voluntarily and of my own free will,
intending to be legally bound in the event the Court
accepts this Stipulated Disposition.
No threats have been made to me nor am I under the
influence of anything that could impede my ability to
understand this Stipulated Disposition fully.
I reaffirm that absolutely no promises, agreements,
understandings, or conditions have been made or entered
into in connection with my decision to enter into this
Stipulated Disposition except those set forth in the
Stipulated Disposition.
I am satisfied with the legal services provided by my
attorney in connection with this Stipulated Disposition
and matters related to it.
(Stipulated Disposition at 4.) The petitioner has provided no
basis for challenging these representations, which establish that
his decision to enter into the Stipulated Disposition was
knowing, intelligent, and voluntary. Moreover, the petitioner
does not argue that he was unaware of or failed to understand the
risks associated with entering into the Stipulated Disposition.
Because “plea bargaining does not violate the Constitution
even though” a defendant may in so doing agree to “waive[]
important constitutional rights[,]” Town of Newton v. Rumery, 480
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U.S. 386, 393 (1987), the petitioner is not entitled to a
certificate of appealability merely because he waived his ability
to continue to pursue his ineffective assistance of counsel
claims. See 28 U.S.C. § 2253(c)(2) (“A certificate of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”).
Accordingly, it is hereby
ORDERED that the petitioner’s motion [114] for a certificate
of appealability be, and hereby is, DENIED.
SIGNED this 23rd day of May, 2011.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge