United States v. Winberg

          ORDER DENYING § 2255 MOTION

          Philip A. Brimmer, Judge

         Movant, 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. 226.

         The 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 denied.

         I. PROCEDURAL HISTORY

         Ms. 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. 205.

         Ms. 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.

         II. ANALYSIS

         A. Plea Agreement Waiver

         Ms. 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.

         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 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) (unpublished) (same).

         B. Ineffective Assistance of Counsel Claims

          The 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 ...