United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER Chief United States District Judge.
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.
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
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.
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.
Plea Agreement Waiver
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
[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.
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)
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.
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 ...