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United States v. Applegate

United States District Court, D. Colorado

May 9, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
1. RYAN APPLEGATE, Defendant-Movant.

          ORDER DENYING § 2255 MOTION

          PHILIP A. BRIMMER Chief United States District Judge.

         Movant, Ryan Applegate, has filed, pro se, a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Docket No. 406] and an Amendment Memorandum to Defendant's Motion § 2255 [Docket No. 408] (collectively “§ 2255 motion”). The United States has responded to the § 2255 motion. Docket No. 410.

         The Court construes Mr. Applegate'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. Applegate pled guilty to Count 2 of the Superseding Indictment, charging a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) - possession of 500 grams or more of methamphetamine with intent to distribute. Docket No. 89 at 2; Docket No. 218 at 1. The Court sentenced Mr. Applegate to 168 months imprisonment with five years of supervised release. Docket No. 299 at 2-3. Mr. Applegate did not appeal his conviction or sentence.

         Mr. Applegate's § 2255 motion raises four claims. He asserts that (1) his due process rights were violated when he received guideline enhancement § 2D1.1(b)(1) for possession of a firearm; (2) his due process rights were violated when he received guideline enhancement § 2D1.1(b)(5) for importation of drugs from Mexico; (3) his due process rights were violated when he received a guideline enhancement under § 4B1.1 for being a career offender; and (4) his attorney was ineffective because he told Mr. Applegate not to file a direct appeal. Docket No. 406 at 4-8.

         II. ANALYSIS

         A. Plea Agreement Waiver

         The United States argues that Mr. Applegate's § 2255 motion is subject to dismissal based on the collateral-attack waiver in his plea agreement. The plea agreement states, in relevant part:

[The] Defendant knowingly and voluntarily waives his right to challenge this prosecution, conviction, or sentence 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; (3) there is a claim of prosecutorial misconduct; or (4) there is a claim challenging the legality of conditions of supervised release. Finally, if the Government appeals the sentence imposed by the Court, the Defendant is released from these waiver provisions.

Docket No. 218 at 2-3.

         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).

         Mr. Applegate's collateral attacks in claims one through three, which do not allege ineffective assistance of counsel, fall within the scope of his waiver. He does not assert “an explicitly retroactive change in the sentencing guidelines or sentencing statute, ” and does not contend that there was prosecutorial misconduct. Further, he does not challenge the legality of his conditions of supervised release. Therefore, Mr. Applegate's first three claims fall directly within the scope of his collateral attack waiver. The Court is also satisfied that Mr. Applegate knowingly and voluntarily waived his collateral attack rights. At the change of plea hearing on September 11, 2015, the Court asked Mr. Applegate whether he had read his plea agreement and had an opportunity to ask his attorney any questions he had about it. He answered yes to both questions. More specifically, the Court read the collateral attack waiver to Mr. Applegate and asked him whether he had an opportunity to talk to his attorney about the waiver and whether he believed he understood that aspect of his waiver of appellate rights. Mr. Applegate answered yes. As a result, at the hearing, the Court found that Mr. Applegate understood each and every term of his plea agreement and knowingly and voluntary entered a plea of guilty.

         Finally, enforcing Mr. Applegate's collateral attack waiver will not result in a miscarriage of justice, which occurs in the habeas context when a constitutional violation “has probably resulted in the conviction of one who is actually innocent.” Selsor v. Kaiser, 22 F.3d 1029, 1034 (10th Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Mr. Applegate does not allege he is actually innocent of the crime of which he was ...


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