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Rutherford v. United States

October 29, 2010

TONY C. RUTHERFORD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On March 11, 2010, Petitioner, Tony C. Rutherford, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On April 2, 2010, the Government filed a Motion to Dismiss Petitioner's Motion Pursuant to 28 U.S.C. § 2255 (#7). The Government argued that Petitioner's Motion should be dismissed for two reasons: (1) Petitioner waived his right to pursue relief pursuant to § 2255 in his written plea agreement; and (2) his Motion is barred by the applicable one-year statute of limitations. On April 16, 2010, Petitioner filed a lengthy Memorandum of Law and Amendment in support of his Motion under § 2255 (#8), with attachments. Following careful consideration, this court concludes that Petitioner clearly waived his right to file a Motion under § 2255 and his Motion must be dismissed on that basis. This court therefore does not need to consider the alternative basis for dismissing his Motion, that the Motion is barred by the applicable statute of limitations. For the reasons that follow, Petitioner's Motion (#1) is dismissed and this case is terminated.

FACTS PROCEEDINGS IN CRIMINAL CASE

On February 8, 2007, in Case Number 07-CR-20016, Petitioner was charged by indictment with five counts related to illegal drug distribution and possession. Although Petitioner had agreed to cooperate with the Government, he instead violated the cooperation agreement and fled the jurisdiction. Petitioner was arrested on November 20, 2007, following a car and foot chase by a Deputy United States Marshal. On November 21, 2007, Petitioner requested court-appointed counsel and James C. Dedman was appointed to represent him. In December 2007, Petitioner was involved in an attempt to escape from the Ford County Jail.

On March 31, 2008, a hearing was held before this court and Petitioner pleaded guilty pursuant to a written plea agreement. At the hearing, Petitioner was sworn and a Rule 11 colloquy was held. During the colloquy, this court thoroughly explored the issue of Petitioner's competence to enter into the plea agreement. This court also thoroughly advised Petitioner of the rights he was waiving by entering into the plea agreement and carefully discussed the terms of the plea agreement, which Petitioner acknowledged that he had read and understood, including the agreed-upon sentence. The written plea agreement stated that, pursuant to Rule 11(c)(1)(A) & (C) of the Federal Rules of Criminal Procedure, the parties agreed that Petitioner would plead guilty to Counts 2, 3, and 5 of the indictment and the Government would dismiss Counts 1 and 4 at sentencing. The plea agreement provided:

Pursuant to Rule 11(c)(1)(C)*fn1 , the United States and the defendant agree to the following Sentencing Guideline applications:

a. The defendant's base offense level is 36 pursuant to §2D1.1(a)(3) & §2D1.1(c)(2) because the defendant is responsible for at least 1.5 kilograms but less than 4.5 kilograms of cocaine base ("crack");

b. The defendant's offense level should be increased by four offense levels pursuant to §3B1.1(a) because the defendant was an organizer and leader in the charged criminal activity that involved five or more participants;

c. Although it is arguable whether the defendant should receive a two level increase for obstruction of justice under §3C1.1 both for fleeing the jurisdiction after his arrest and attempting to escape from custody prior to trial and not receive credit for acceptance of responsibility pursuant to §3E1.1, the parties agree at this time that the defendant's offense level should be reduced by three levels pursuant to §3E1.1 because he has accepted responsibility for his conduct. Acceptance of personal responsibility shall include cooperating fully with the United States Probation Office in the preparation of a presentence report and not committing any local, state or federal offenses while awaiting sentencing. This agreement does not preclude the United States from changing its position if new evidence to the contrary is discovered or if the defendant later demonstrates a lack of acceptance of personal responsibility in the opinion of the United States[.]

In the plea agreement, the parties agreed that Petitioner had an offense level of 37 and a criminal history category of III, resulting in a guideline sentencing range of 262 to 327 months of imprisonment. The agreement stated:

The United States and the defendant each agree that the appropriate disposition of the case is for the defendant to be sentenced to a 300 month term of imprisonment on each of Counts 2, 3, and 5, to be served concurrently, followed by a ten year term of supervised release on Count 5 and an eight year term of supervised release on Counts 2 and 3, to be served concurrently, no fine, and a $300 special assessment.

The plea agreement provided that Petitioner knowingly and voluntarily waived his right to appeal "any and all issues relating to this plea agreement and conviction and to the sentence, including any fine or restitution, as provided in this plea agreement, and the manner in which the sentence, including any fine or restitution, was determined, on any ground whatever, in exchange for the concessions made by the United States in this plea agreement." The written plea agreement also stated:

WAIVER OF RIGHT TO COLLATERAL ATTACK

27. The defendant also understands that he has a right to attack his sentence collaterally on the grounds it was imposed in violation of the Constitution or laws of the United States, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and his attorney have reviewed Section 2255, and the defendant understands the rights that statute gives him. The defendant's attorney has fully discussed and explained this waiver with the defendant but has made no recommendation to the defendant as to the waiver of a motion under Title 28, United States Code, Section 2255. The defendant specifically acknowledges that the decision to waive the right to challenge any later claim of the ineffectiveness of the defendant's counsel was made by the defendant alone notwithstanding any advice the defendant may or may not have received from the defendant's attorney regarding this right. Regardless of any advice his attorney has given him one way or the other, in exchange for the concessions made by the United States in this Plea Agreement, the defendant hereby knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and sentence, including any fine or ...


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