United States District Court, D. Delaware
Kenneth Frazier, Pro se, movant.
Elizabeth Van Pelt, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware, Counsel for respondent.
SUE L. ROBINSON, District Judge.
Kenneth Frazier (" movant" ) is a federal inmate currently confined at FCI Lompoc in Lompoc, California. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 33) The government filed an answer asking the court to summarily dismiss
movant's 2255 motion on the ground that it is barred by waiver of direct appellate and collateral attack rights, as set forth in a written plea agreement entered into between movant and the government. (D.I. 44) For the reasons discussed, the court will enforce the collateral waiver and deny movant's § 2255 motion without holding an evidentiary hearing.
On October 15, 2009, a federal grand jury returned a four count indictment charging movant with conspiracy to distribute cocaine (count one), distribution of five grams or more of cocaine base (count two), possession of a firearm by a person prohibited (count three), and possession of a firearm in furtherance of a drug trafficking offense (count four). (D.I. 3) On August 5, 2010, movant entered a guilty plea to counts one, two, and three of the indictment, pursuant to a plea agreement with the government. The plea agreement provided, in part:
The defendant knows that he has, and voluntarily and expressly waives, the right to file any appeal, any collateral attack, or any other writ or motion after sentencing - including, but not limited to, an appeal under 18 U.S.C. 3742 or 28 U.S.C. § 1291, or a motion under 28 U.S.C. § 2255 - except that the defendant reserves his right to appeal only if (1) the government appeals from the sentence, (2) the defendant's sentence exceeds the statutory maximum for the offense set forth in the United States Code, or (3) the sentence unreasonably exceeds the Sentencing Guidelines range determined by the District Court in applying the United States Sentencing Guidelines.
(D.I. 22 at ¶ 6)(emphasis added).
During the plea colloquy, the court reviewed each paragraph and posed specific questions to movant with respect to each section of the plea agreement. Specifically, with regard to the waiver issue, the court stated,
In paragraph 6, it indicates that you know that you have, but you voluntarily and expressly waive the right to file any appeal, any collateral attack, or any other writ or motion after sentencing, including, but not limited, an appeal under Title 18 of the United States Code, Section 3742, or under Title 28 of the United States Code, Section 1291, or a motion under Title 28 of the United States Code, Section 2255, except that you have reserved your right to appeal if, one, the government appeals from the sentence, which they do periodically from my sentences; two, that your sentence exceeds the statutory maximum for the offense set forth in the United States Code. That will never ...