The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Mark Daniel Kitzman's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion together with its supporting Memorandum of Law, the Government's Motion to Dismiss and Response (Dkt. 5), and Kitzman's Reply (Dkt. 9),*fn1 as well as the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion on the grounds of waiver.
BACKGROUND AND SUMMARY OF ISSUES
Kitzman was indicted along with eleven other individuals on June 19, 2006. He was charged with continuing criminal enterprise (Count 1), conspiracy to manufacture/distribute/possess with intent to distribute controlled substances (Count 2), conspiracy to launder money (Count 3), conspiracy to launder money (Count 4), continuing criminal enterprise forfeiture (Count 5), and drug forfeiture (Count 6). The charges related to a 30-year period of drug trafficking and money laundering. He was arraigned on September 20, 2006.
On May 23, 2007, a Superseding Indictment was filed which added three more co-Defendants as well as a count charging conspiracy to structure transactions, launder money, and use interstate facilities (Count 4). Superseding Indictment, Dkt. 197. Kitzman was arraigned on the Superseding Indictment on July 5, 2007. On December 12, 2007, pursuant to a Rule 11(c)(1)(C) binding Plea Agreement, he pleaded guilty before United States Magistrate Judge Larry M. Boyle to the drug conspiracy and money laundering conspiracy charges (Counts 2 and 3, respectively) together with the related forfeiture Counts 6 and 7. Minutes, Dkt. 417; Plea Agreement, Dkt. 393.
Kitzman pleaded guilty in exchange for the Government's agreement to dismiss the remaining counts, to recommend a sentence of between six and nine years, to make certain concessions regarding the forfeiture of his property, and to move for a downward departure under § 5K1.1 if Kitzman provided what the Government determined was substantial assistance in the investigation of others. The dismissal of Count 1, the continuing criminal enterprise charge, relieved him of a 20-year statutory minimum sentence. The Government's informal agreement not to file a § 851 sentencing enhancement based on his prior drug conviction also relieved him of a mandatory sentence of twenty years on Count 2, the drug conspiracy charge.
Between the time of his arraignment on the original Indictment through the entry of his plea to the Superseding Indictment, Kitzman was represented by a succession of two court-appointed attorneys and retained counsel Andrew Parnes. Scott Gatewood was appointed counsel at the arraignment on the Indictment. Minutes, Dkt. 51. He moved to withdraw based on irreconcilable differences that had arisen between him and Kitzman. Mot. to Withdraw, Dkt. 160. Mr. Gatewood had made arrangements for Kitzman to review over 13,000 pages of discovery and had visited with Kitzman at the Ada County Jail on sixteen occasions to review that discovery. Gatewood Aff., Dkt. 160-1. At the final meeting, it was apparent that there was a total breakdown of communication, and Kitzman indicated his desire for new appointed counsel. Id. at ¶¶ 5-6.
The Court granted Mr. Gatewood's motion and appointed attorney Robert Wallace. Order, Dkt. 161. Mr. Wallace represented Kitzman at the arraignment on the Superseding Indictment and through initial plea negotiations. Mr. Parnes, who became attorney of record approximately six weeks prior to the change of plea hearing, negotiated the final Plea Agreement, and represented Kitzman through sentencing. Notice of Substitution of Attorney, Dkt. 314.
On June 29, 2009, the Court accepted the binding Plea Agreement, granted a 2-level departure pursuant to § 5K1.1, and imposed a sentence of 78 months on Counts 2 and 3 to be served concurrently. Judgment, Dkt. 884. The sentence was well below the statutory minimum of 10 years and near the bottom of the agreed upon range. He did not appeal his conviction or sentence.
On December 17, 2009, Kitzman timely filed the pending § 2255 Motion. He alleges six grounds for relief: (1) fraudulently induced plea, (2) ineffective assistance of counsel during plea negotiations, (3) Congress' lack of authority to enact 21 U.S.C. § 801, (4) the unconstitutionality of the conspiracy and continuing criminal enterprise statutes, (5) Congress' lack of authority to enact Fed. R. Crim. P. 11, and (6) invalid grand jury. The Government contends that Kitzman waived his right to bring this § 2255 Motion and that, to the extent that they are not waived, his claims are otherwise subject to summary dismissal.
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."
The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then proceeds to a determination under Rule 8 of whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
Pursuant to the Plea Agreement, in return for the concessions made by the Government, Kitzman agreed to waive his right to appeal or seek relief under § 2255 except under certain limited circumstances.*fn2 Plea Agreement ¶ VII, Dkt. 393. More specifically, Kitzman agreed to waive his right to file a § 2255 motion but retained the right to file one § 2255 motion if he believed that he received ineffective assistance of counsel based solely on information not known to him at the time sentence was imposed and which, in the exercise of reasonable diligence, could not have been known by him at that time. Id. at ¶ VII.C.
A defendant may waive his statutory right to file a § 2255 motion challenging his sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). However, a plea agreement must expressly state that the right to bring a § 2255 motion is waived in order for the waiver to be valid. United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) (finding that language in plea agreement that "he will not appeal whatever sentence is imposed by the court" did not constitute a waiver of the right to bring a § 2255 motion). Nevertheless, even an express waiver may not bar an ineffective assistance of counsel claim challenging the knowing and voluntary nature of the plea agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005). See also Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (finding waiver of right to file § 2254 petition is unenforceable with respect to an ineffective assistance of counsel claim challenging the voluntariness of the waiver itself).
Here, the waiver provision specifically states that the right to file a § 2255 motion is waived except for a § 2255 motion alleging ineffective assistance of counsel based solely on information not known to him at the time sentence was imposed. None of the allegations Kitzman advances was unknown to him at the time he entered his plea or at the time his sentence was imposed. Therefore, unless his waiver was unknowing and involuntary, all of his claims are barred. Kitzman has not challenged the voluntariness of the ...