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Pierce v. United States

United States District Court, D. Delaware

January 22, 2019

LARRY PIERCE, Movant/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.

          Larry Pierce. Pro se Movant.

          Alexander Ibrahim. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.




         Movant Larry Pierce ("Movant") filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Motion"). (D.I. 223) The Government filed an Answer in opposition. (D.I. 241) For the reasons discussed, the Court will dismiss Movant's § 2255 Motion without holding an evidentiary hearing.


         In June 2014, Movant pled guilty to armed robbery (18 U.S.C. §§ 2113(a), 2113(d), and 2) (Count Two), and use of a firearm in relation to a crime of violence (18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(3), 924(c)(4), and 2) (Count Three). (D.I. 87) In exchange, the Government agreed to move to dismiss Counts One and Five of the Indictment at or around the time of sentencing. (D.I. 141; D.I. 142) Paragraph Eleven of the Memorandum of Plea Agreement provides, in relevant part:

The Defendant knows that he has, and voluntarily and expressly agrees to waive, the right to file any appeal, any collateral attack, or any other writ or motion in this criminal case after sentencing - including, but not limited to, an appeal under Title 18, United States Code, Section 3742 or Title 28, United States Code, Section 1291, or a motion under Title 28, United States Code, Section 2255 - except that the Defendant reserves his right to appeal on the following grounds: 1) the United States appeals the sentence, 2) the Defendant's sentence exceeds the statutory maximum for the offenses set forth in the United States Code, or 3) the sentence unreasonably exceeds the Sentencing Guideline range determined by the District Court in applying the United States Sentencing Guidelines.

(D.I. 87, ¶ 11)

         During the initial plea colloquy on June 9, 2014, the Honorable Gregory M. Sleet asked Movant if he reviewed the Memorandum of Plea Agreement with defense counsel and if the Memorandum contained the entire agreement between Movant and the Government. (D.I. 94 at 5-7) After Movant responded affirmatively, Judge Sleet made the Memorandum of Plea Agreement a physical part of the record. (D.I. 94 at 7) In response to Judge Sleet's inquiries, Movant stated affirmatively that he understood the rights he was waiving, the maximum penalties he faced, and that the Plea Agreement accurately reflected the agreement reached with the Government. (D.I. 94 at 8-11, 15- 19) Judge Sleet read the appellate/collateral attack waiver provision to Movant, confirmed that Movant had consulted with his attorney regarding the waiver, and discussed in detail the implications of the waiver. (D.I. 94 at 13-14) Thereafter, during a side bar conference, defense counsel informed Judge Sleet that Movant had reservations about signing the plea with the appellate/collateral attack waiver. (D.I. 94 at 19-21. After further discussion with counsel, Judge Sleet decided to post-pone the plea in order to allow Movant some additional time to read the statutory sections (§ 3742, 1291, 2255) referenced in the waiver. (D.I. 94 at 21-22) At the subsequent plea hearing on June 24, 2014, Movant entered the plea and signed the plea agreement.

         Movant filed the instant § 2255 Motion in June 2016.[2] The Motion asserts one ground for relief: Johnson v. United States, 135 S.Ct. 2551 (2015)[3] retroactively applies to his case and invalidates his conviction under § 924(c). Movant contends that he could not have raised the issue earlier because Johnson was decided after his conviction. In response, the Government moves for dismissal of the § 2255 Motion, arguing that the Motion is barred by the appellate/collateral attack waiver provision contained in Movant's Plea Agreement. (D.I. 241 at 2-4) Alternatively, the Government contends that Movant's Claim should be denied as meritless. (D.I. 241 at 4-8)


         The validity of an appellate/collateral attack waiver provision is a "threshold issue that must be addressed before reaching the merits of the underlying claim. See United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). As a general rule, courts will enforce a defendant's waiver of his appellate/collateral rights if it is "entered knowingly and voluntarily and [its] enforcement does not work a miscarriage of justice." Id. at 236-37. A court has an affirmative and "an independent obligation to conduct an evaluation of the validity of a collateral waiver." Id. at 238. Specifically, a court must consider: (1) whether the waiver was knowing and voluntary; (2) whether there is an exception to the waiver which prevents its enforcement; and (3) whether enforcement of the waiver would cause a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).

         A. Voluntary and Knowing ...

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