MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S § 2255 MOTION
MARK W. BENNETT, District Judge.
TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND.................................. 1172 A. The Petitioner's § 2255 Motion............................. 1172 B. The Petitioner's Charges, Plea, and Sentence............... 1173 II. EVIDENTIARY HEARING.......................................... 1174 III. LEGAL ANALYSIS............................................... 1174 A. Standards For Relief Pursuant To§ 2255 .................. 1174 B. Post-conviction Relief Waiver............................. 1175 IV. CERTIFICATE OF APPEALABILITY................................. 1177 V. CONCLUSION................................................... 1178
I. INTRODUCTION AND BACKGROUND
A. The Petitioner's § 2255 Motion
On November 3, 2008, petitioner Stephen Dale Schnepf filed his Second Amended Motion under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence (docket no. 21). In Schnepf's Second Amended Motion, he raises two claims. First, he contends that his guilty plea to the charge of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), was defective due to an inadequate factual basis. Second, Schnepf claims that his conviction on the charge of using a firearm during and in relation to a drug trafficking crime violates the Due Process Clause of the United States Constitution because he was actually innocent of that charge under the United States Supreme Court's subsequent decision in Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007).
B. The Petitioner's Charges, Plea, and Sentence
On February 23, 2007, an indictment (docket no. 1) was returned against Schnepf, charging him with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1), possession of a firearm with its serial number removed, obliterated or altered, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count 2), possessing with intent to distribute 32.5 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 3), conspiracy to distribute 500 grams or more of methamphetamine having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851 (Count 4), and using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 5 and 6). On August 9, 2007, Schnepf appeared before Chief United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Counts 1, 2, 3, 4 and 5 of the indictment pursuant to a binding 11(c)(1)(C) plea agreement. The plea agreement contained the following agreement regarding Schnepf's sentence:
Plea Agreement at ¶ 14 (docket no. 31-2).
Plea Agreement at ¶ 29.
This court accepted Schnepf's guilty plea on October 30, 2007, 2007 WL 3232196 (docket no. 37). On November 9, 2007,
II. EVIDENTIARY HEARING
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. See also Buster v. United States, 447 F.3d 1130, 1132 (8th Cir.2006) ("A district court does not err in dismissing a movant's section 2255 motion without a hearing if (1) the movant's `allegations, accepted as true, would not entitle' the movant to relief, or `(2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'") (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003)). Based on the reasons set forth below, the court finds that the record conclusively shows that Schnepf is entitled to no relief and will, therefore, not hold a hearing in this case. See id.
III. LEGAL ANALYSIS
A. Standards For Relief Pursuant To § 2255
Turning to the legal analysis of Schnepf's claims, in light of the evidence in the record, the court notes, first, that 28 U.S.C. § 2255 provides as follows:
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir.2007) ("Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir.2003) ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States."). Thus, a motion pursuant to § 2255 "is `intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995) (quoting Wilson)
On the other hand,
Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.1993) (per curiam); accord Johnson v. United States, 278 F.3d 839, 844 (8th Cir.2002) ("In order to obtain collateral review of a procedurally defaulted issue, [a § 2255 movant] must show `either cause and actual prejudice, or that he is actually innocent.'") (quoting Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), with citations omitted).
The "cause and prejudice" that must be shown to resuscitate a procedurally defaulted claim may include "ineffective assistance of counsel." See Becht v. United States, 403 F.3d 541, 545 (8th Cir.2005). Otherwise, "[t]he Supreme Court recognized in Bousley that `a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir.2001) (quoting Bousley, 523 U.S. at 622, 118 S.Ct. 1604, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). "Actual prejudice" requires a showing that the alleged error " `worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Johnson, 278 F.3d at 844 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), and explaining, further, that the movant must show that there is a substantial likelihood that, absent the error, a jury would have acquitted him of the charged offense). To establish "actual innocence," as an alternative way to resuscitate a procedurally defaulted claim, " `petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'" Id. (quoting Bousley, 523 U.S. at 623, 118 S.Ct. 1604). "`This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the charged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir.2001)).
The Eighth Circuit Court of Appeals will review the district court's decision on a § 2255 motion de novo, regardless of whether the district court's decision grants or denies the requested relief. Compare United States v. Hilliard, 392 F.3d 981, 986 (8th Cir.2004) ("We review the district court's decision to grant or deny relief on a petitioner's ineffective assistance of counsel claim de novo.") (citing United States v. White, 341 F.3d 673, 677 (8th Cir.2003)); with United States v. Hernandez, 436 F.3d 851, 854 (8th Cir.2006) ("`We review de novo the district court's denial of a section 2255 motion.'") (quoting Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005)). However, "[a]ny underlying fact-findings are reviewed for clear error.'" Hernandez, 436 F.3d at 855 (quoting United States v. Davis, 406 F.3d 505, 508 (8th Cir.2005)).
With these standards in mind, the court turns to analysis of Schnepf's claims for § 2255 relief.
B. Post-conviction Relief Waiver
Respondent argues that Schnepf has waived his right to pursue post-conviction relief under § 2255. Thus, the court must first address the waiver provision in Schnepf's plea agreement in light of the claims he has made in his § 2255 motion. As discussed above, in his plea agreement, Schnepf waived his right to post-conviction relief other than ineffective assistance of counsel claims. Schnepf agreed in relevant part:
Plea Agreement at ¶ 29. Furthermore, as the record makes clear, Schnepf understood that he was waiving his right to appeal and to file post-conviction motions:
Sentencing Tr. at 19-20 (docket no. 45).
The Eighth Circuit Court of Appeals has long recognized that a defendant may waive his or her right to appeal, but the court only recently acknowledged that a defendant may waive his or her right to post-conviction relief. DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000). Such a waiver, however, has its limitations. Id. "A defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel." Id. at 924; see Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999) ("Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself— the very product of the alleged ineffectiveness."). Thus, even in circumstances such as the present case, where petitioner signed a written plea agreement waiving his right to file for post-conviction relief, petitioner may nevertheless petition the court for post-conviction relief based on the ineffective assistance of counsel, but only "when the defendant's claims of ineffective assistance relate to the negotiation of, and entry into, the plea agreement and waiver." DeRoo, 223 F.3d at 924; see United States v. White, 307 F.3d 336, 343 (5th Cir.2002) ("We will follow this wealth of authority and hold that an ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself."); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) ("The majority of Circuits support
Here, pursuant to a written plea agreement, Schnepf waived his right to collaterally attack his plea, conviction, and sentence. Schnepf does not claim that he entered the plea agreement unwillingly or without knowledge of the waiver. Moreover, review of the record in this case reveals that Schnepf's waiver of his right to collaterally attack under § 2255 was made knowingly, intelligently and voluntarily. Schnepf has not raised any claims for relief directly related to the waiver or its negotiation, including any claims of ineffective assistance of counsel. Therefore, because Schnepf has failed to assert that there was any defect in the waiver and has not raised any claims of ineffective assistance of counsel, the court concludes that under express language of the written plea agreement here, Schnepf's claims are barred by the waiver provision and accordingly denied.
IV. CERTIFICATE OF APPEALABILITY
Denial of Schnepf's § 2255 Motion raises the question of whether or not he should be issued a certificate of appealability for his claim. The requirement of a certificate of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in pertinent part, as follows: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from: (B) the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1)(B); accord FED. R.APP. P. 22(b). To obtain a certificate of appealability on claims for § 2255 relief, a defendant must make "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.2000); Mills v. Norris, 187 F.3d 881, 882 n. 1 (8th Cir.1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir.1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir.1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997), cert. denied, 525 U.S. 834, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox, 133 F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El that " `[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
The court finds that Schnepf has not made a substantial showing of the denial of a constitutional right on his § 2255 claim. See 28 U.S.C. § 2253(c)(2). Specifically, there is no showing that reasonable jurists would find this court's assessment of Schnepf's claim debatable or wrong, Miller-El, 537 U.S. at 338, 123 S.Ct. 1029; Cox, 133 F.3d at 569, or that any court would resolve those issues differently. Cox, 133 F.3d at 569. Therefore, Schnepf does not make the requisite showing to satisfy § 2253(c) on his claim for relief,
Therefore, petitioner Schnepf's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, Or Correct Sentence by a Person in Federal Custody is