United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING MOTION UNDER 28 U.S.C.
F. Cox United States District Court Judge
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.
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).
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).
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
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.
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.
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
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 ...