United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
20, 2016, Petitioner Eddie Joe Reza (Petitioner) moved to
correct his sentence under 28 U.S.C. § 2255, arguing
that one of his prior convictions is no longer a crime of
violence so as to enhance his offense level under the United
States Sentencing Guidelines (U.S.S.G.). APPLICATION FOR
LEAVE TO FILE A SECOND OR SUCCESSIVE MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE 28 U.S.C. § 2255. Motion
(Doc. No. 1).Thus, Petitioner seeks resentencing without
the enhancement. BRIEF IN SUPPORT OF MOTION TO CORRECT
SENTENCE UNDER 28 U.S.C. § 2255. Brief (Doc. No. 13).
February 10, 2017, Respondent United States (Respondent)
filed UNITED STATES' RESPONSE TO DEFENDANT/MOVANT'S
MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255.
Response (Doc. No. 14). Respondent argued that the Court should
deny Petitioner's § 2255 Motion both because the
rule in Johnson is not retroactively applicable to
Petitioner's collateral challenge and because Petitioner
had waived his right to bring a § 2255 Motion in his
underlying Plea Agreement. Response at 1, 4, 11.
REPLY TO UNITED STATES' RESPONSE TO BRIEF IN SUPPORT OF
MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255,
Petitioner concedes the government's position that
Petitioner waived his post-conviction rights in his Plea
Agreement. Reply at 1 (Doc. No. 15).
21, 2010, Petitioner pleaded guilty to an Information
charging that he was a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). See
Response at 2 (summarizing pertinent procedural history).
Petitioner entered his plea of guilty in accordance with a
written Plea Agreement that contained a waiver-of-appeal
provision. That provision stated:
The defendant is aware that 28 U.S.C. § 1291 and 18
U.S.C. § 3742 afford a defendant the right to appeal a
conviction and the sentence imposed. Acknowledging that, the
defendant knowingly waives the right to appeal this
conviction and/or sentence within the statutory maximum
penalty authorized by law. In addition, the defendant agrees
to waive any collateral attack to this conviction and/or
sentence pursuant to 28 U.S.C. § 2255, except on the
issue of effective assistance of counsel.
Plea Agreement ¶ 12 (Doc. No. 25 in No. CR 10-2135).
was convicted of Shooting at or from a Motor Vehicle or into
an Occupied Dwelling. See Response at 2 (summarizing
contents of Petitioner's Presentence Investigation Report
(PSR)). Based on this conviction, the United States Probation
Office found that Petitioner's base offense level under
the U.S.S.G. was 20 because he committed the instant offense
after sustaining a felony crime-of-violence conviction as
outlined in U.S.S.G. § 2K2.1(a). See Id. (PSR
¶ 19). The Probation Office determined that
Petitioner's guideline range under the U.S.S.G. was 110
to 129 months. Id. (PSR ¶ 78). Petitioner was
sentenced to 110 months of imprisonment, at the bottom of the
guideline range, followed by three years of supervised
release. Id. Doc. No. 50 in No. CR 10-2135.
history gave rise to Petitioner's argument that his
conviction for Shooting at or from a Motor Vehicle or into an
Occupied Building no longer qualifies as a crime of violence
under U.S.S.G. § 2K2.1 following the United States
Supreme Court's decision in Johnson.
Petitioner concedes that Respondent's waiver argument is
supported by Tenth Circuit precedent, Reply at 1, the Court
addresses only the second of Respondent's two positions.
waiver of collateral attack rights brought under § 2255
is generally enforceable where the waiver is expressly stated
in the plea agreement and where both the plea and the waiver
were knowingly and voluntarily made.” United States
v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001),
cert. denied, 534 U.S. 1085 (2002). An exception is
made if enforcement of the waiver would result in a
miscarriage of justice. United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004). But a miscarriage of
justice occurs only “ where the district court
relied on an impermissible factor such as race,  where
ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid, 
where the sentence exceeds the statutory maximum, or 
where the waiver is otherwise unlawful.” Id.
at 1327. “This list is exclusive: enforcement of an
appellate waiver does not result in a miscarriage of justice
unless enforcement would result in one of the four situations
enumerated above.” United States v. Polly, 630
F.3d 991, 1001 (10th Cir. 2011) (internal quotation marks
omitted). Additionally, error does not make a waiver
“otherwise unlawful” unless it “seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Hahn, 359 F.3d at 1327
(brackets and internal quotation marks omitted).
does not dispute that his written Plea Agreement contained an
explicit waiver of his right to bring a collateral challenge
under § 2255 on any issue other than ineffective
assistance of counsel in negotiating or entering the plea or
the waiver. See Reply at 1. See also Plea
Agreement ¶ 12. It is undisputed that the Plea Agreement
reflects that Petitioner acknowledged his appellate rights
and knowingly waived them, and that his plea was voluntarily
made. Plea Agreement ¶¶ 12, 15. Petitioner does not
assert that his claim falls outside the scope of his waiver
or that the waiver was not knowing and voluntary. In fact,
Petitioner makes no argument in opposition to
Respondent's assertion that Petitioner waived his right
to bring a collateral challenge under § 2255.
See Brief 1-4 (arguing only that he should be
resentenced in light of Johnson).
Petitioner's Johnson-based challenge to the
U.S.S.G enhancement is a challenge to the lawfulness of his
sentence rather than a challenge to the lawfulness of the
waiver. In United States v. Frazier-LeFear, F.
App'x, 2016 WL 7240134, *4 (10th Cir. Dec. 15, 2016), the
Tenth Circuit Court rejected that argument, observing that
“creating an exception for sentencing errors
‘would nullify the wavier based on the very sort of
claim it was intended to waive.'” (citation
omitted). Petitioner has not alleged any error that relates
to the waiver itself. Moreover, Petitioner has cited the
decision of Frazier-LeFear as support for his
concession that ...