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Hendrix v. United States

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

November 28, 2016

DENIS ANN HENDRIX, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Movant's motions to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF Nos. 1, 7.) On September 20, 2016, the Government filed a response in opposition. (ECF No. 14.) For the reasons that follow, Movant's amended § 2255 motion is denied.

         I.

         On February 29, 2012, Movant pleaded guilty to felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), and possession of a firearm in furtherance of drug trafficking under 18 U.S.C. § 924(c)(1)(A)(i). This Court sentenced Movant to 126 months. Movant filed a pro se motion for modification or reduction of sentence under 18 U.S.C. § 3582(c)(2), which this Court denied. Subsequently, Movant filed an amended motion to vacate, set aside or correct sentence raising claims of improper sentence enhancement based on Johnson v. United States, 135 S.Ct. 2551 (2015) and the amendment to U.S.S.G § 31B.2's “minor role clause.”

         II.

         A prisoner who moves to vacate her sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982).

         III.

         A. Waiver and Procedural Bar

         The Government contends that Movant's § 2255 motion must be denied because, as part of her plea agreement, Movant waived the right to collaterally attack her sentence. The Court agrees. A movant “may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). The Sixth Circuit “enforce[s] such waivers according to their terms, so long as the defendant entered into the plea agreement knowingly and voluntarily.” Hardin v. United States, 595 F. App'x 460, 461 (6th Cir. 2014). “[A] defendant who knowingly and voluntarily agreed not to contest his sentence in any post-conviction proceeding waived the right to argue in a § 2255 motion that his counsel provided ineffective assistance at sentencing.” Id. at 462 (citing Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001)). Based on Movant's signed plea agreement, the Court finds that her plea was knowing and voluntary. The agreement stated that:

I have read this Plea Agreement and carefully discussed every part of it with my attorney. I understand the terms of this Agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, possible defenses, of the sentencing provisions, and of the consequences of entering into this Agreement. No one has threatened or forced me in any way to enter into this Agreement. Finally, I am satisfied with the representation of my attorney in this matter.

(United States v. Hendrix, No. 1:11-cr-129, Plea Agreement, ECF No. ...


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