Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Strauss

United States District Court, E.D. Michigan, Southern Division

November 22, 2016

United States of America, Plaintiff/Respondent,
v.
Terry Joshua Strauss, Defendant/Petitioner. Civil No. 16-11397

          OPINION & ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

          Sean F. Cox United States District Court Judge

         Defendant/Petitioner Terry Joshua Straus (“Strauss”) filed a pro se motion under 28 U.S.C. § 2255, collaterally attacking his sentence in Criminal Case Number 08-20009. The motion has been fully briefed by the parties. As explained below, the Court shall DENY Strauss's § 2255 Motion because Strauss validly waived the right to collaterally attack his sentence in his plea agreement.

         BACKGROUND

         In Criminal Case Number 08-20009, Defendant Strauss and Defendant Michael Sloan Muller (“Muller”) were both charged with three counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d), and three counts of using, carrying, and brandishing a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c).

         On December 17, 2008, pursuant to a Rule 11 Plea Agreement, Strauss pleaded guilty to Count One, Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) & (d), and a lesser included offense to Count Two, Using and Carrying a Firearm in Furtherance of a Crime of Violence. (See Rule 11 Agreement, Docket Entry No. 41).

         Strauss's Rule 11 Plea Agreement recited a factual basis for Strauss's guilty plea, stated that there are no sentencing guideline disputes, and calculated Strauss's sentencing guideline range. It also contained the following express waiver:

         6. WAIVER OF APPEAL

If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant waives any right he/she has to appeal his/her conviction or sentence. If the sentence imposed is within the guideline range determined by Paragraph 2B, the government agrees not to appeal the sentence, but retains its right to appeal any sentence below that range. Defendant understands that defendants generally have the right collaterally to attack their convictions and sentences by filing post-conviction motions, petitions, or independent civil actions. As part of this agreement, however, defendant knowingly and voluntarily waives that right and agrees not to contest his/her conviction or sentence in any post-conviction proceeding, including - but not limited to - any proceeding under 28 U.S.C. § 2255.

(Id. at Pg ID 151-52) (underlining in original). The Rule 11 Plea Agreement also contained a provision affirming that Strauss had read, understood, and agreed to all the terms in the agreement:

By signing below, defendant acknowledges that he/she has read (or been read) this entire document, understands it, and agrees to its terms. He/She also acknowledges that he/she is satisfied with his/her attorney's advice and representation. Defendant agrees that he/she has had a full and complete opportunity to confer with his/her lawyer, and has had all of his/her questions answered by his/her lawyer.

(Id. at Pg ID153). Both Strauss's signature and his attorney's signature appear below that provision.

         At the plea hearing, Strauss stated under oath that before signing the Rule 11 Plea Agreement, Strauss had read the agreement (with all attachments) and reviewed it with his attorney, and that his attorney had answered any and all questions that Strauss had regarding the agreement and its provisions. Strauss also stated, under oath, that he was satisfied with his attorney's representation.

         During the plea hearing the Court also asked Strauss whether he understood the terms of the plea agreement and the constitutional rights he was giving up by entering into the Rule 11 Plea Agreement and pleading guilty. That colloquy included:

Q. Okay. Could you please turn to page 5 entitled, “Waiver of Appeal”? It's paragraph 6. It reads, “If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, the Defendant waives any right he has to appeal his conviction or sentence if the sentence imposed is within the guideline range determined by Paragraph 2b. The Government agrees not to appeal the sentence but retains its right to appeal any sentence below that range. The Defendant understands that Defendants generally have the right to collaterally to attack their convictions and sentences by filing post conviction motions, petitions or independent civil actions. As part of this agreement however the Defendant knowingly and voluntarily waives that right and agrees not to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.