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United States v. Potter

United States District Court, E.D. Louisiana

June 1, 2015

UNITED STATES OF AMERICA
v.
GEORGE W. POTTER, SECTION

ORDER AND REASONS

MARTIN L. C. FELDMAN, District Judge.

Before the Court is a federal prisoner's pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. For the reasons that follow, the petition is DENIED.

Background

Potter is currently serving 188 months imprisonment for one count of Distributing Child Pornography in violation of 18 U.S.C. § 2252(a)(2). He pled guilty pursuant to a plea agreement in which he waived his appellate rights. After his sentencing on February 26, 2014, in this Court, he did not appeal his sentence or conviction to the Fifth Circuit, instead filing this § 2255 motion alleging ineffective assistance of counsel on several grounds:

(1) Failing to challenge the validity of the federal statute prohibiting the distribution of child pornography on the ground that Congress exceeded its powers under the Constitution and intruded on the sovereignty and authority of the State of Florida in enacting the statute;

(2) Failing to challenge the validity of the child pornography statute on the ground that Congress exceeded its power under the Commerce Clause;

(3) Failing to challenge sentencing enhancements;

(4) Failing to challenge the constitutionality of the Sentencing Guidelines under Alleyne v. United States, 133 S.Ct. 2151 (2013);

(5) Failing to inform Potter that a guilty plea could result in a sentence of 188 months; and

(6) Failing to submit a sentencing memorandum and a request for a variance from the Sentencing Guidelines.

I.

A. Waiver

A federal prisoner may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Section 2255 allows a prisoner in federal custody to challenge his sentence if it "was imposed in violation of the Constitution or the laws of the United States... or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). But a defendant may waive his right to direct appeal and collateral attack of a conviction and sentence by means of a plea agreement, so long as the waiver is both knowing and voluntary. See e.g., United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (holding that a "knowing and voluntary" standard applies to a waiver of appeal); United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005) ("We apply normal principles of contact interpretation when construing plea agreements."); United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). A defendant knowingly enters a waiver when "the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it." United States v. Ruiz, 536 U.S. 622, 630 (2002).

When a petition does not allege, and the record contains no indication that ratification of the plea agreement was not "voluntary" or knowledgeable, the Court will hold the defendant to the bargain that he made-the Court need not presume that the waiver was ineffective. See White, 307 F.3d at 343; Bond, 414 F.3d at 544 (citing McKinney, 406 F.3d at 746). Furthermore, "when the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of appeal." United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994); McKinney, ...


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