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Strauss v. Terris

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

September 9, 2019

TERRY JOSHUA STRAUSS, Petitioner,
v.
J.A. TERRIS, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 6)

          MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.

         Petitioner Terry Joshua Strauss is a federal prisoner incarcerated at the Federal Correctional Institution in Milan, Michigan (“FCI Milan”). On September 7, 2018, Strauss filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2241 (“Section 2241”). (See Pet., ECF No. 1.) Strauss argues that the district court incorrectly calculated his sentencing guidelines. (See id.) Respondent filed a motion to dismiss the petition on the ground that Strauss waived his right to challenge his sentence as part of a plea agreement. (See Mot., ECF No. 6.) The Court agrees. Therefore, the Court GRANTS Respondent's motion and DISMISSES the petition.

         I

         In 2008, a grand jury in this district indicted Strauss and his co-defendant, Michael Sloan Muller, on 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). (See Indictment, United States v. Strauss, E.D. Mich. Case No. 08-cr-20009, ECF No. 10.) On December 17, 2018, pursuant to a Rule 11 Plea Agreement, Strauss pleaded guilty to one count of armed bank robbery and one count of using, carrying, and brandishing a firearm during the commission of a crime of violence, and the remaining charges were dismissed. In that plea agreement, Strauss waived his right to challenge both his conviction and his sentence in any post-conviction proceeding:

Defendant understands that defendants generally have the right collaterally to attack their convictions and sentencing 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.

(Rule 11 Plea Agreement, E.D. Mich. Case No. 08-cr-20009, ECF No. 41, PageID.152; first emphasis in original; second and third emphasis added).

         Also on December 17, 2018, Muller pleaded guilty pursuant to a Rule 11 Plea Agreement. Muller's plea agreement contained the same provision (quoted immediately above) concerning his waiver of his right to contest his sentence in “any post-conviction proceeding including - but not limited to - any proceeding under 28 U.S.C. § 2255.” (Rule 11 Plea Agreement, E.D. Mich. Case No. 08-cr-20009, ECF No. 40, PageID.134.)

         On January 28, 2009, a Judge of this Court sentenced Strauss to 108 months' imprisonment for bank robbery and a consecutive term of 60 months' imprisonment for using, carrying, and brandishing a firearm. (See Judgment, E.D. Mich. Case No. 08-cr-20009, ECF No. 43.) The same Judge imposed the same sentence on Muller. (See Judgment, E.D. Mich. Case No. 08-cr-20009, ECF No. 42.)

         Muller's next moves are relevant to the issues Strauss raises in the petition now before the Court. In September 2012, Muller filed a petition for a writ of habeas corpus under Section 2241 in the Middle District of Pennsylvania.[1] He raised a single ground for relief: the sentencing judge erroneously calculated the sentencing guidelines range. The Pennsylvania district court dismissed the petition because, among other things, under the terms of Muller's plea agreement, Muller waived his right to challenge his sentence in a Section 2241 petition:

Thus, Petitioner's plea agreement bars any collateral attack on Petitioner's sentence, as the waiver is “not limited to” proceedings under § 2255, but applies to all petitions for habeas corpus. This waiver, provided by Petitioner, expressly prohibits Petitioner from filing any collateral proceeding pertaining to his conviction and sentence.

Muller v. Sauers, 2012 WL 12895897, at *2 (M.D. Pa. Nov. 29, 2012; emphasis in original).

         Muller appealed, and the United States Court of Appeals for the Third Circuit affirmed. See Muller v. Sauers, 523 Fed.Appx. 110 (3d Cir. 2013). Like the district court, the Third Circuit concluded, among other things, that the waiver provision of Muller's plea agreement “foreclose[d] relief” under Section 2241. Id. at 112-13. The Third Circuit also saw “no indication that the waiver should not be enforced.” Id. at 112 n. 1.

         Three years after the Third Circuit affirmed the dismissal of Muller's Section 2241 petition, Strauss filed a “Motion Pursuant to § 2255(f)(3) in Light of U.S. v. Johnson, 135 S.Ct. 2551 (2015), Retroactivity” in this Court. (See Motion, E.D. Mich. Case No. 08-cr-20009, ECF No. 70.) Another Judge of this Court denied the motion on the basis that Strauss had waived his right to contest his sentence in any post-conviction proceeding. (See Opinion and Order, E.D. Mich. Case No. 08-cr-20009, ECF No. 79.) That Judge reviewed the record of Strauss's plea hearing and specifically found that Strauss “knowingly, intelligently, and voluntarily” entered into the waiver. (Id., PageID.388.)

         Strauss sought to appeal the dismissal of his motion, and the Sixth Circuit declined to grant a certificate of appealability. See Strauss v. United States, 2017 WL 6886067 (6th Cir. May 22, 2017). The Sixth Circuit concluded that an appeal was not warranted because “Strauss waived the right to collaterally attack his sentence in his plea agreement, ” and thus “reasonable ...


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