United States District Court, D. Delaware
Daywine Hunter. Pro se Movant.
Jennifer Welsh, Assistant United States Attorney, United
States Department of Justice, Wilmington, Delaware. Attorney
ANDREWS, UNITED STATES DISTRICT JUDGE:
before the Court is Movant Daywine Hunter' spro
se Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255. (D.I. 162) The Government
filed an Answer in opposition. (D.I. 178) For the reasons
that follow, the Court will deny Movant's § 2255
November 18, 2015, Movant pled guilty to conspiracy to
distribute one hundred grams or more of heroin. (D.I. 70 at
¶ 1; D.I. 172) The Honorable Sue L. Robinson sentenced
him to a total of 82 months of incarceration and five years
of supervised release. (D.I. 130) Movant did not appeal.
(D.I. 70 at ¶ 11)
§ 2255 Motion is ready for review.
the majority of Movant's timely filed § 2255 Motion
is hard to understand and at times incomprehensible, the
Court considers the following four grounds for relief: (1)
defense counsel provided ineffective assistance by not filing
any defense motions, and by failing to mount any defense; (2)
defense counsel provided ineffective assistance by failing to
provide Movant with discovery; (3) defense counsel provided
ineffective assistance by telling Movant he would be
sentenced to 17 years in prison if he proceeded to trial
(D.I. 162 at 10 ¶ 15(c)); and (4) Movant was improperly
convicted of distributing more than 100 grams of heroin and
improperly sentenced to 82 months of incarceration, because
the drug weight attributable to the conspiracy should have
been divided among the six co-defendants in the case, which
would have resulted in Movant being sentenced to 2 years of
incarceration (D.I. 162 at 2-3, 5).
Claim Four: Barred by Collateral Attack Waiver
Plea Agreement contains the following appellate/collateral
attack waiver provision:
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. Notwithstanding the foregoing,
the defendant reserves his right (1) to file an appeal or
other collateral motion on the grounds that he received
ineffective assistance of counsel; and (2) to appeal his
sentence if: (a) the government appeals from the sentence,
(b) the defendant's sentence exceeds the statutory
maximum for the offense set forth in the United States Code,
or (c) the sentence unreasonably exceeds the Sentencing
Guidelines range determined by the District Court in applying
the United States Sentencing Guidelines.
70 at ¶ 11) In its Answer, the Government acknowledges
that the collateral attack waiver provision does not bar the
Court from reviewing Claims One, Two, and Three. However, the
Government does not address whether the collateral attack
waiver affects the Court's review of Claim Four.
general rule, a court will enforce a defendant's waiver
of his appellate and collateral rights if it is "entered
knowingly and voluntarily and [its] enforcement does not work
a miscarriage of justice." United States v.
Mabry,536 F.3d 231, 236-37 (3d Cir. 2008). A court has
an affirmative and "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