United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Judge
Donald Brian Winberg, has filed, pro se, an amended
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255 (“§ 2255 motion”)
(Docket No. 216). The United States has responded to the
motion. Docket No. 220. Mr. Winberg filed a reply [Docket No.
221] and a memorandum of law [Docket No. 228].
Court construes Mr. Winberg's filings liberally because
he is not represented by counsel. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court will not act as a pro se litigant's
advocate. See Hall, 935 F.2d at 1110. For the
reasons discussed below, the § 2255 motion will be
Winberg pled guilty to Counts 1 and 16 of the Superseding
Indictment, charging two violations of 18 U.S.C. § 1349,
conspiracy to commit wire fraud. Docket No. 110. The Court
sentenced Mr. Winberg to a total of 87 months imprisonment.
No. 145 at 2. Mr. Winberg filed a direct appeal, Docket No.
147, but the Court of Appeals for the Tenth Circuit enforced
Mr. Winberg's waiver of his right to file such an appeal
and therefore dismissed it. Docket No. 203.
Winberg's § 2255 motion claims that (1) he was
selectively prosecuted; (2) the government committed a Brady
violation; (3) his guilty plea was “coerced” by
his attorney because his attorney did not spend sufficient
time on his case and advise him about the statute he pled
guilty to having violated; (4) his attorney failed to conduct
a proper pre-trial investigation; and (5) there was a
Crawford confrontation violation. Docket No. 216 at
4. He seeks to have his convictions vacated and be released
from custody. Id. at 8.
Plea Agreement Waiver
Winberg's § 2255 motion is subject to dismissal
based on the collateral-attack waiver in his plea agreement.
The plea agreement states, in relevant part:
[T]he defendant also knowingly and voluntarily waives his
right to challenge this prosecution, conviction, or sentence
and/or the manner in which it was determined in any
collateral attack, including but not limited to a motion
brought under 28 U.S.C. § 2255. This waiver provision,
however, will not prevent the defendant from seeking relief
otherwise available if: (1) there is an explicitly
retroactive change in the applicable guidelines or sentencing
statute; (2) there is a claim that the defendant was denied
the effective assistance of counsel; or (3) there is a claim
of prosecutorial misconduct. Additionally, if the government
appeals the sentence imposed by the Court, the defendant is
released from this waiver provision.
Docket No. 111 at 3.
collateral-attack waiver in a plea agreement will be enforced
if: (1) the collateral attack falls within the scope of the
waiver; (2) the defendant's waiver of his collateral
rights was knowing and voluntary; and (3) enforcement of the
waiver would not result in a miscarriage of justice. See
United States v. Viera, 674 F.3d 1214, 1217 (10th Cir.
2012) (applying analysis in United States v. Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004), for determining whether
a plea agreement waiver of appellate rights is enforceable);
see also United States v. Frazier-LeFear, No.
16-6128, 665 Fed.Appx. 727, 729 (10th Cir. Dec. 15, 2016)