Perko v. United States

          OPINION AND ORDER

          CHARLES B. KORNMANN United States District Judge

         Petitioner 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.

         The 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 imprisonment.

         Petitioner 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.

         I have 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.

         To 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).

         Petitioner 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).

         Petitioner 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 was waiving.

         Petitioner cannot demonstrate that, absent counsel's alleged error, there is a reasonable probability that the result of the proceeding would have been different.

         II. Sentencing Error.

         Petitioner 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 proceeding.

         III. ...