United States v. Felder

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 00-254 (RWR) ) WAYNE FELDER, ) ) Defendant. ) ____________________________ )

MEMORANDUM ORDER

Petitioner Wayne Felder filed a motion under 28 U.S.C.

§ 2255 to vacate his sentence, arguing that his counsel provided

ineffective assistance by not filing an appeal, by not adequately

contesting an improper role enhancement under the sentencing

guidelines, and by advising him to plead guilty without warning

him about the role enhancements; that an unconstitutional prior

conviction was used to enhance his criminal history; and that his

sentence was unconstitutional under United States v. Booker, 543

U.S. 220 (2005). On June 24, 2008, the petitioner’s motion was

denied with respect to all of his claims except for the claim

that his attorney failed to appeal when requested. See United

States v. Felder, 563 F. Supp. 2d 160, 169 (D.D.C. 2008) (“2008

Memorandum and Order”). An evidentiary hearing was ordered to

resolve the sole remaining issue of whether the petitioner asked

his attorney to file an appeal. Id. Before the hearing was - 2 -

held, the petitioner filed a motion under 18 U.S.C. § 3583(c)(2)

to reduce his sentence. The parties conferred and reached a

stipulated disposition of both the petitioner’s motion to vacate

and his motion to reduce his sentence. The disposition was

accepted, the petitioner was resentenced to the stipulated term

of imprisonment of 135 months, and the petitioner agreed in his

stipulated disposition that he would refrain from appealing the

sentence. After an order effectuating the stipulated disposition

was entered, the petitioner –– although represented by counsel ––

filed pro se a notice of appeal. The court of appeals ordered

the appeal to be held in abeyance until this Court determines in

the first instance whether a certificate of appealability is

warranted.

The petitioner argues that a certificate of appealability is

warranted notwithstanding the stipulated disposition because “the

disposition does not by its terms apply” to any of the

ineffective assistance of counsel issues that were resolved in

the 2008 Memorandum and Order denying in part the petitioner’s

motion to vacate. (Pet’r’s Suppl. to Appl. for Certificate of

Appealability at 2.) However, the stipulated disposition

provides for “a full disposition of the [petitioner]’s

ineffective assistance of counsel claims with respect to his - 3 -

former trial counsel” (Stipulated Disposition at 1 (emphasis

added)), not merely a resolution of the sole ineffective

assistance issue outstanding at the time the disposition was

entered. Because the petitioner agreed “to refrain from

appealing from this stipulated disposition or the Court’s

resentencing of the [petitioner] pursuant to this stipulated

disposition” (id.), he waived his right to appeal his sentence on

the basis of any of the issues he raised in his motion to vacate,

including those that were resolved in the 2008 Memorandum and

Order.

“A defendant may waive his right to appeal his sentence as

long as his decision is knowing, intelligent, and voluntary.”

United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).

Even an anticipatory waiver of a defendant’s right to appeal ––

one made before the defendant knows what his sentence will be ––

is “a knowing waiver if the defendant is aware of and understands

the risks involved in his decision.” Id. However, “a waiver

should not be enforced insofar as the defendant makes a colorable

claim that he received ineffective assistance of counsel in

agreeing to the waiver[.]”1 Id. at 530.

1 The petitioner has raised no such claim here. - 4 -

In the stipulated disposition, which the petitioner signed,

the petitioner said:

I have read this Stipulated Disposition and have discussed it with my attorney . . . .

I fully understand the terms of this Stipulated Disposition and agree to it without reservation.

I do this voluntarily and of my own free will, intending to be legally bound in the event the Court accepts this Stipulated Disposition.

No threats have been made to me nor am I under the influence of anything that could impede my ability to understand this Stipulated Disposition fully.

I reaffirm that absolutely no promises, agreements, understandings, or conditions have been made or entered into in connection with my decision to enter into this Stipulated Disposition except those set forth in the Stipulated Disposition.

I am satisfied with the legal services provided by my attorney in connection with this Stipulated Disposition and matters related to it.

(Stipulated Disposition at 4.) The petitioner has provided no

basis for challenging these representations, which establish that

his decision to enter into the Stipulated Disposition was

knowing, intelligent, and voluntary. Moreover, the petitioner

does not argue that he was unaware of or failed to understand the

risks associated with entering into the Stipulated Disposition.

Because “plea bargaining does not violate the Constitution

even though” a defendant may in so doing agree to “waive[]

important constitutional rights[,]” Town of Newton v. Rumery, 480 - 5 -

U.S. 386, 393 (1987), the petitioner is not entitled to a

certificate of appealability merely because he waived his ability

to continue to pursue his ineffective assistance of counsel

claims. See 28 U.S.C. § 2253(c)(2) (“A certificate of

appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”).

Accordingly, it is hereby

ORDERED that the petitioner’s motion [114] for a certificate

of appealability be, and hereby is, DENIED.

SIGNED this 23rd day of May, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge