Jennings v. United States

• Court: District Court, D. Arizona
• Decided: March 17, 2020
• Docket: 2:20-cv-00485
• Status: Unknown

Opinion

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, No. CV 20-00485-PHX-MTL (JFM) 10 Plaintiff, CR 06-00684-PHX-MTL 11 v. ORDER 12 David Frank Jennings, 13 Defendant/Movant.

14 15 On March 6, 2020, Movant David Frank Jennings, who is confined in the United 16 States Penitentiary-McCreary in Pine Knot, Kentucky, filed a pro se Motion Under 28 17 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. 18 The Court will summarily dismiss the § 2255 Motion. 19 I. Procedural History 20 Pursuant to a plea agreement, Movant pleaded guilty to second-degree murder, in 21 violation of 18 U.S.C. § 1111. On March 14, 2008, the Court sentenced Movant to a 420- 22 month term of imprisonment followed by 60 months on supervised release. 23 Movant raises two grounds for relief. In Ground One, he claims the Federal 24 Correctional Institution in Phoenix, Arizona, is not subject to federal jurisdiction because 25 the federal government “failed to accept jurisdiction over said land by not filing an 26 ‘Explicit Acceptance of Jurisdiction[’] with the Governor of Arizona or [the] ap[p]ropriate 27 agency.” In Ground Two, Movant contends the “President issued Exec[u]tive Order 28 1 #10355 dated May 26, 1952[,] taking said land for use by the F.B.I.” but the State of 2 Arizona “never agreed to [a] transfer of jurisdiction.” 3 II. Summary Dismissal 4 A district court must summarily dismiss a § 2255 application “[i]f it plainly appears 5 from the motion, any attached exhibits, and the record of prior proceedings that the moving 6 party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings for 7 the United States District Courts. When this standard is satisfied, neither a hearing nor a 8 response from the government is required. See Marrow v. United States, 772 F.2d 525, 9 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). 10 In this case, the record shows that summary dismissal under Rule 4(b) is warranted 11 because Movant has waived the right to bring a § 2255 motion. 12 III. Waiver 13 Movant has waived his right to file a § 2255 motion. The Ninth Circuit Court of 14 Appeals has found that there are “strict standards for waiver of constitutional rights.” 15 United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible 16 to presume waiver from a silent record, and the Court must indulge every reasonable 17 presumption against waiver of fundamental constitutional rights. United States v. 18 Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004). In this action, Movant’s waiver was clear, 19 express, and unequivocal. 20 Plea agreements are contractual in nature, and their plain language will generally be 21 enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 22 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory right to bring 23 a § 2255 action challenging the length of the sentence. United States v. Pruitt, 32 F.3d 24 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). 25 The only claims that cannot be waived are claims that the waiver itself was involuntary or 26 that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. 27 Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the 28 right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an 1 ineffective assistance of counsel claim that challenges the voluntariness of the waiver); 2 Pruitt, 32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that 3 counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); 4 Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of 5 ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 6 1156 n.4 (declining to decide whether waiver of all statutory rights included claims 7 implicating the voluntariness of the waiver). 8 “Collateral attacks based on ineffective assistance of counsel claims that are 9 characterized as falling outside [the category of ineffective assistance of counsel claims 10 challenging the validity of the plea or the waiver] are waivable.” United States v. 11 Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). See also Williams v. United States, 396 12 F.3d 1340, 1342 (11th Cir. 2005) (joining the Second, Fifth, Sixth, Seventh, and Tenth 13 Circuits in holding that “a valid sentence-appeal waiver, entered into voluntarily and 14 knowingly, pursuant to a plea agreement, precludes the defendant from attempting to 15 attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of 16 counsel during sentencing.”). 17 As part of Movant’s plea agreement, Movant made the following waiver:

18 The defendant waives any and all motions, defenses, probable cause 19 determinations, and objections which the defendant could assert to the indictment or information or to the Court’s entry of judgment against 20 the defendant and imposition of sentence upon the defendant 21 providing the sentence is consistent with this agreement. The defendant further waives: . . . (3) any right to collaterally attack 22 defendant’s conviction and sentence under Title 28, United States 23 Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any 24 appeal or collateral attack the defendant might file challenging 25 his conviction or sentence in this case. 26 (Doc. 70) (emphasis added). Movant indicated in the plea agreement that he had discussed 27 the terms with his attorney, agreed to the terms and conditions, and entered into the plea 28 voluntarily. (Doc. 70). 1 Movant’s assertions in the § 2255 Motion do not pertain to the voluntariness of the 2| waiver. Movant expressly waived the right to bring a § 2255 motion. The Court accepted | the plea as voluntarily made. Consequently, the Court finds that Movant waived the issues 4| raised in the § 2255 Motion. Thus, the Court will summarily dismiss the § 2255 Motion. 5| ITIS ORDERED: 6 (1) The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 74 in CR 06-00684-PHX-MTL) is denied and the civil action opened in 8 | connection with this Motion (CV 20-00485-PHX-MTL (JFM)) is dismissed with 9| prejudice. The Clerk of Court must enter judgment accordingly. 10 (2) Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the 11 | event Movant files an appeal, the Court declines to issue a certificate of appealability 12 | because reasonable jurists would not find the Court’s procedural ruling debatable. See 13 | Slack vy. McDaniel, 529 U.S. 473, 484 (2000). 14 Dated this 17th day of March, 2020. 15 Micha To Siburde Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 _4-