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FENNER v. U.S.

August 4, 2005.

NAKIA FENNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

Petitioner Nakia Fenner ("Petitioner") filed this pro se petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 ("§ 2255").*fn1 Petitioner contends that his sentence should be vacated or amended for three reasons. First, Petitioner claims that his sentence should be vacated because the sentencing court erred when it increased Petitioner's base offense level by two points for possession of a firearm. Second, Petitioner alleges that the United States Sentencing Guidelines were applied in an unconstitutional manner to his case. Third, Petitioner claims that his sentence should be amended, because the Bureau of Prisons was negligent, causing him to suffer severe physical injuries, and failed to award his good time credits properly, thereby depriving him of a reduction of his sentence. For the reasons set forth below, this petition is denied.

BACKGROUND

  Between August 1998 to August 2000, Petitioner and seven other individuals, members of the "Crips" organization, conspired to distribute heroin, cocaine and cocaine base ("crack"). (Answer dated July 14, 2005, at 1.) On August 22, 2001, a federal grand jury in the District of New Jersey issued a multi-count indictment, charging Petitioner and others with conspiracy to distribute, and possession with intent to distribute, heroin, cocaine, and cocaine base, in violation of 21 U.S.C. § 846.*fn2 (Petitioner's Brief filed March 6, 2005 ("Pet. Br."), at 2.) On April 30, 2002, Petitioner pled guilty to conspiracy to distribute heroin. In his plea agreement with Respondent, Petitioner waived his right to challenge his sentence, pursuant to 28 U.S.C. § 2255. (Answer at 2.)

  On November 4, 2002, the District Court sentenced Petitioner to a term of imprisonment of 87 months and four years of supervised release. (Answer at 2.) Petitioner did not file an appeal seeking direct review of his conviction or sentence. On March 6, 2005, Petitioner filed the instant motion to vacate his sentence under 28 U.S.C. § 2255. On July 14, 2005, the United States Government filed an answer.

  LEGAL STANDARD

  Federal prisoners may seek relief under § 2255 for any of the following reasons: (1) the sentence violated the United States Constitution; (2) the Court did not have proper jurisdiction; (3) the sentence exceeded the maximum allowed by law; or (4) the sentence is subject to collateral attack on other grounds. See 28 U.S.C. § 2255. Errors that may justify reversal on direct appeal are not necessarily sufficient to support relief on collateral review, as § 2255 is not a substitute for direct appeal. See United States v. Addonizio, 442 U.S. 178, 184 (1979). Section 2255 is intended to address "fundamental defects," such as jurisdictional or constitutional errors, that may have resulted in a "complete miscarriage of justice," or an outcome that is "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 784 (1979) (internal citations omitted).

  The ability to obtain relief under § 2255 is not unlimited. See Solis v. United States, 252 F.3d 289, 295 (3d Cir. 1989). For example, a petitioner "would not be entitled to a hearing if his allegations were contradicted conclusively by the record, or if the allegations were patently frivolous." Id. Courts have the discretion to dismiss a § 2255 motion summarily "where the motion, files, and records show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In addition, prisoners must seek relief within the one year statute of limitation set forth in § 2255. The time limitation for filing motions under § 2255 is addressed at greater length below.

  DISCUSSION

  Petitioner raises three claims in support of the instant motion to vacate his sentence. First, Petitioner claims that the Court erred when it increased Petitioner's base offense level by two points for possession of a firearm, in violation of his rights under the sixth amendment. (Pet. Br. at 3.) Second, Petitioner argues his sentence is inconsistent with Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). (Pet. Br. at 5.) Third, Petitioner claims that his sentence should be amended, because the Bureau of Prisons was negligent, causing him to suffer severe injuries, and failed to award his good time credits properly.

  Respondent contends Petitioner's request should be dismissed because, in his plea agreement with Respondent, Petitioner knowingly and voluntarily waived his right to challenge his sentence under § 2255. (Answer at 2.) Furthermore, Respondent contends that Petitioner's motion was filed after the one year statute of limitations expired, and therefore, is time-barred. (Answer at 3.) Finally, Respondent asserts that, even if the motion were not barred by waiver, and deemed timely by this Court, Petitioner's claims seeking retroactive application of United States v. Booker, 125 S. Ct. 738 (2005), and for the consideration of post-sentencing events lack merit and must be denied. This Court agrees, and accordingly, Petitioner's motion is denied.

  I. Waiver of Right to File § 2255 Motion

  Waivers of appeals are valid and enforceable as long as they are entered into knowingly and voluntarily, and they do not work a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). The same principle applies in the context of a defendant waiving his right to seek collateral relief under 28 U.S.C. § 2255. See United States v. Garrett, No. 03-6176, 2005 WL 768761 (10th Cir. 2005); United States v. Jeronimo, 398 F.3d 1149 (9th Cir. 2005); United States v. White, 307 F.3d 336 (5th Cir. 2002).

  As a preliminary matter, this Court must consider whether, by stipulating to the plea agreement, Petitioner waived his right to file this petition. That stipulation provides in part:
Defendant knows that he has, and voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion after sentencing including, but not limited to, an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentencing court's determination or imposition of the offense level, if the total offense ...

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