United States v. Winberg

          ORDER DENYING § 2255 MOTION

          Philip A. Brimmer, Judge

         Movant, 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].

         The 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 denied.

         I. PROCEDURAL HISTORY

         Mr. 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.

         Docket 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.

         Mr. 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.

         II. ANALYSIS

         A. Plea Agreement Waiver

         Mr. 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.

         A 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) (unpublished) (same).

         B. Ineffective ...