United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER Chief United States District Judge.
Nicole Mitchell, has filed, pro se, a Petition Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
motion”) [Docket No. 397]. Ms. Mitchell has also filed
a supplemental memorandum. Docket No. 401. The United States
responded to the § 2255 motion. Docket No. 417. Ms.
Mitchell filed a reply. Docket No. 420.
Court construes Ms. Mitchell'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
December 11, 2015, Ms. Mitchell pled guilty to Count One of
an information, charging a violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846, conspiracy to
distribute and possess with the intent to distribute a
quantity of a mixture and substance containing a detectable
amount of methamphetamine. Docket No. 295. The Court
sentenced Ms. Mitchell to a total of 80 months imprisonment.
Docket No. 367 at 2. Ms. Mitchell filed a direct appeal,
Docket No. 398, but the Court of Appeals for the Tenth
Circuit dismissed the case for failure to file her appeal
within fourteen days of entry of judgment. Docket No. 403.
Mitchell's § 2255 motion claims that, in calculating
her offense level under the United States Sentencing
Guidelines, the Presentence Investigation Report erred by
including a two-level increase pursuant to § 2D1.1(b)(1)
for possession of a dangerous weapon. Docket No. 401 at 1.
Ms. Mitchell contends that she should not hav e been given a
two-level increase because she did not constructively possess
the firearm, citing United States v. Little, 829
F.3d 1177 (10th Cir. 2016). Id. She requests that
the two-level increase in her offense level be removed.
United States argues that Ms. Mitchell's § 2255
motion is subject to dismissal based on the collateral-attack
waiver in her plea agreement. Docket No. 417 at 3-5. The plea
agreement states, in relevant part:
The defendant also knowingly and voluntarily waives the right
to challenge this prosecution, conviction or sentence in any
collateral attack (including, but not limited to, a motion
brought under 28 U.S.C. § 2255). This waiver provision
does not prevent the defendant from seeking relief otherwise
available in a collateral attack on any of the following
grounds: (1) the defendant should receive the benefit of an
explicitly retroactive change in the sentencing guidelines or
sentencing statute; (2) the defendant was deprived of the
effective assistance of counsel; or (3) the defendant was
prejudiced by prosecutorial misconduct.
Docket No. 295 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)
Court finds that each of the three Hahn factors is
satisfied and, as a result, the appeal waiver bars Ms.
Mitchell's claim. See Viera, 674 F.3d at 1217.
First, this claim falls within the scope of the waiver, which
includes a waiver of the “right to challenge this
prosecution, conviction or sentence in any collateral attack
(including, but not limited to, a motion brought under 28
U.S.C. § 2255).” None of the exceptions to the
waiver clause applies to this claim. Second, Ms.
Mitchell's plea was knowing and voluntary. At the change
of plea hearing, after asking questions of Ms. Mitchell about
her plea agreement and her intention to plead guilty to Count
1 of the information, the Court concluded that she entered
the plea agreement voluntarily, knowingly, and intelligently.
The Court read the language of Ms. Mitchell's appellate
waivers to her and asked her whether she believed that she
understood them. Ms. Mitchell indicated that she had a chance
to review the waivers with her attorney and believed that she
understood them. In her statement in advance of guilty plea,
Ms. Mitchell acknowledged that she had discussed the terms of
her plea agreement with her attorney and that she was
satisfied with counsel's representation. Docket No. 296
Ms. Mitchell's § 2255 motion falls within the scope
of the collateral-attack waiver in her plea agreement and she
has not made a colorable argument that her waiver was not
knowing and voluntary, she must demonstrate that enforcement
of the waiver would result in a miscarriage of justice. A
miscarriage of justice occurs “ where the district
court relied on an impermissible factor such as race, 
where ineffective assistance of counsel in connection with
the negotiation of the waiver renders the waiver invalid, 
where the sentence exceeds the statutory maximum, or 
where the waiver is otherwise unlawful.” Hahn,
359 F.3d at 1327. See also United States v. Polly,
630 F.3d 991, 1001 (10th Cir. 2011) (explaining that four
exceptions listed in Hahn are exclusive means to
establish miscarriage of justice).
Court finds that each of the Hahn factors supports
enforcement of Ms. Mitchell's collateral attack waiver.
The Court did not rely on an impermissible factor, Ms.
Mitchell does not claim that there was any ineffective
assistance of counsel in regard to her appeal waiver, the
sentence did not exceed the twenty year maximum, and there is
no evidence that the waiver was otherwise ...