United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge
was charged in l:17-cr-10001-CBK with two counts of sexual
abuse of a person incapable of appraising the nature of the
conduct or physically incapable of declining participation
in, or communicating unwillingness to engage in a sexual act
in violation of 18 U.S.C. § 2242(2) and one count of
incest with his cousin in violation of SDCL § 22-22A-2.
He entered into a plea agreement wherein he agreed to plead
guilty to incest, which has a statutory maximum sentence of
five years imprisonment. In exchange for his guilty plea, the
government agreed to dismiss the sexual abuse charges, which
have a statutory maximum sentence of life imprisonment. The
defendant agreed to waive his statutory right to appeal any
non-jurisdictional issues but retained his right to appeal
the length of his sentence should the Court impose an upward
departure or variance.
Federal Sentencing Guidelines do not contain a guideline for
the assimilated crime of incest. Therefore, Guideline §
2X5.1 directs the Court to apply the most analogous offense
guideline. I applied Guideline § 2A3.2, the guideline
for criminal sexual abuse of a minor. I determined that the
resulting total offense level was 18 and, with a criminal
history category of V, the guideline range was 51-63 months.
I thereafter applied a downward variance pursuant to 18
U.S.C. § 3553(a) based upon the nature and circumstances
of the offense and sentenced the petitioner to 36 months
filed a motion to vacate, set aside, or correct his
conviction and sentence. He contends that he received
ineffective assistance of counsel in that he was not informed
that he agreed in the plea agreement to waive a direct
appeal. He further claims I applied an improper guideline.
Finally, he claims that the prosecutor committed misconduct
in failing to prosecute the other participant in the incest
crime and in filing charges based upon the statements of the
other participant who was intoxicated and had a memory lapse
concerning the offense. Petitioner contends that he did not
raise these issues on direct appeal because defense counsel
refused to file a notice of appeal.
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2254 Proceedings for
the United States District Courts.
I. Ineffective Assistance of Counsel.
support a claim of ineffective assistance of counsel, a two
prong test must be met. "To succeed on this claim,
[petitioner] must show ineffective assistance-that
counsel's representation fell below an objective standard
of reasonableness." Wilcox v. Hopkins, 249 F.3d
720, 722 (8th Cir. 2001) (quoting Hill v. Lockhart
474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Petitioner "must also prove prejudice by demonstrating
that absent counsel's errors there is a reasonable
probability that the result of the proceeding would have been
different." Delgado v. United States, 162 F.3d
981, 982 (8th Cir. 1998), (citing Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80
L.Ed.2d (1984)). The burden of establishing ineffective
assistance of counsel is on the petitioner. Delgado v.
United States, 162 F.3d at 982. Petitioner
'"faces a heavy burden' to establish ineffective
assistance of counsel pursuant to section 2255."
DeRoo v. United States, 223 F.3d 919, 925 (8th Cir.
2000) (quoting United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996)). "The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the
benefit of hindsight." Yarborough v. Gentry,
540 U.S. 1, 8, 124 S.Ct. 1, 6, 157 L.Ed.2d 1 (2003).
contends that counsel was ineffective in failing to inform
him that he waived a direct appeal as part of the plea
agreement. Petitioner's plea agreement provided:
The Defendant hereby waives all defenses and his right to
appeal any non-jurisdictional issues. The parties agree that
excluded from this waiver is the Defendant's right to
appeal any decision by the Court to depart upward pursuant to
the sentencing guidelines as well as the length of his
sentence or a determination of its substantive reasonableness
should the Court impose an upward departure or an upward
variance pursuant to 18 U.S.C. § 3553(a).
cannot show prejudice based upon counsel's alleged
failure to inform him of the consequences of the appeal
waiver. The waiver language in the plea agreement is clear.
Petitioner testified at his change of plea hearing that he
fully understood he was waiving very important rights and
that he fully understood what he was waiving. He was warned
by this Court in no uncertain terms what important rights he
cannot demonstrate that, absent counsel's alleged error,
there is a reasonable probability that the result of the
proceeding would have been different.
contends that I erred in applying the sentencing guidelines.
He was required to raise this issue on direct appeal. He did
not file a direct appeal. Petitioner's motion as it
relates to the second claim is procedurally defaulted. He
waived any right to file an appeal of any sentencing issues,
with the exception of an upward departure or variance. Such a
promise made in a plea agreement is binding upon petitioner
and may be specifically enforced by the government.
United States v. His Law, 85 F.3d 379, 379 (8th Cir.
1996). Failure to raise the issue on direct appeal bars
petitioner from raising the issue for the first time in a
section 2255 habeas corpus proceeding. Reid v. United
States, 976 F.2d 446, 447 (8th Cir. 1992). This rule
applies equally to a criminal defendant who waives his right
to appeal pursuant to a plea agreement and therefore is
barred from a direct appeal. See Id. at 448. The
Supreme Court has stated that "a collateral challenge
may not do service for an appeal." United States v.
Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71
L.Ed.2d 816 (1982). Thus, if a criminal defendant waives his
right to appeal, he has also waived his right to collaterally
challenge the conviction and sentence in a § 2255