United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Judge
Karlien Richel Winberg, has filed, pro se, a Motion
to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (“§ 2255 motion”) (Docket
No. 222). The United States has responded to the § 2255
motion. Docket No. 225. Ms. Winberg filed a reply. Docket No.
Court construes Ms. Winberg's filings liberally because
she 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. 107. The Court
sentenced Ms. Winberg to a total of 87 months imprisonment.
Docket No. 146 at 2. Ms. Winberg filed a direct appeal,
Docket No. 150, but the Court of Appeals for the Tenth
Circuit enforced Ms. Winberg's waiver of her right to
file such an appeal and therefore dismissed it. Docket No.
Winberg's § 2255 motion claims that (1) she was
selectively prosecuted; (2) her guilty plea was
“coerced” by her attorney because her attorney
did not spend sufficient time on her case and advise her
about the statute she pled guilty to having violated; (3) her
attorney failed to conduct a proper pre-trial investigation;
(4) the government committed a Brady violation; (5)
there was a Crawford confrontation violation; and
(6) her criminal history category overrepresented her
criminal history. Docket No. 222 at 4. She seeks to have her
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 her plea agreement.
The plea agreement states, in relevant part:
The defendant also knowingly and voluntarily waives her 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. 108 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 her 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)
Ineffective Assistance of Counsel Claims
Court first considers Ms. Winberg's claims of ineffective
assistance of counsel, which are an explicit exception to her
appeal waiver. In her third claim, Ms. Winberg argues that
her plea was based on “coercion, ” Docket No. 222
at 4-5, 15-16, 19, but provides no argument or evidence of
any coercion by her attorney or anyone else. Instead, she
argues that her attorney spent little time on the case and
that not until Ms. Winberg read the statute in the prison law
library did Ms. Winberg understand that her “plea
agreement was wrong.” Id. at 14. In her third
claim, Ms. Winberg elaborates on her counsel's alleged
ineffectiveness, claiming that her attorney was distracted by
billing issues, did not read five boxes of evidence that
petitioner gave her, did not conduct a suppression hearing,
did not challenge various evidence, failed to inform her
regarding the “stacking” of ...