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 Kristine L. Hordichok's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion, the Government's Response (Dkt. 10), and Hordichok's Reply (Dkt. 17),*fn1 as well as the underlying criminal record, the Court enters the following Order dismissing the § 2255 Motion.
BACKGROUND AND SUMMARY OF ISSUES
On April 22, 2008, the Government filed an Indictment charging Hordichok with one count of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine and three counts of possession with intent to distribute methamphetamine. Indictment, Dkt. 1. On May 28, 2008, the Government filed a Superseding Indictment which added two Defendants to the conspiracy charge. Superseding Indictment, Dkt. 18. On September 26, 2008, pursuant to a Plea Agreement, Hordichok entered a plea to the conspiracy charge in return for the Government's agreement to dismiss the possession counts and to not bring any other charges. Plea Agreement, Dkt. 59; Minutes, Dkt. 66.
Hordichok had been in custody all but the last three weeks prior to entering her plea. See Detention Order, Dkt. 13; Order Denying Release from Custody, Dkt. 34; Order Denying Motion for Reconsideration of Pretrial Release, Dkt. 49; Minutes, Dkt. 62 (allowing release until continued plea hearing date). At the request of the Government to facilitate her cooperation, the Court permitted Hordichok to remain on release following her plea despite the fact that the statutory minimum sentence of ten years mandated detention absent special circumstances. A month later, she violated her conditions of release by using methamphetamine and was ordered detained pending sentencing. Pretrial Release Petition and Order, Dkt. 73; Detention Order, Dkt. 82.
On January 12, 2009, the Court sentenced Hordichok to 125 months of imprisonment based on a guideline range of 120-135 (offense level of 29 and criminal history category of III) to be followed by five years of supervised release. Judgment, Dkt. 102. The Court appointed new counsel to file a notice of appeal. Order, Dkt. 105. Hordichok subsequently voluntarily dismissed her appeal after counsel advised that the waiver in the Plea Agreement and the mandatory minimum essentially precluded appellate relief. USCA Order, Dkt. 126; Letter from Appellate Counsel, Dkt. 17-2 in civil case.
On January 11, 2010, Hordichok timely filed the pending § 2255 Motion alleging five grounds of ineffective assistance of counsel. More specifically, she alleged that counsel (1) did not carefully and clearly explain the Plea Agreement to her prior to the Plea Hearing; (2) failed to ask for a continuance of the sentencing hearing to discuss the Presentence Report with her; (3) failed to compute her criminal history points correctly and or obtain a safety valve departure; (4) failed to follow through with Magistrate Judge Boyle's recommendation for pre-trial in-patient drug treatment; and (5) failed to obtain a psychological evaluation and to argue for a downward departure based on domestic violence and drug use. Hordichok requests a sentence reduction below the statutory minimum of ten years.
The Government responded that Hordichok waived her right to seek post-conviction relief on the asserted grounds because they did not fall within the exception to the waiver contained in the Plea Agrement. The Government further contends that Hordichok would fail on the merits of her claims if not deemed waived. Response, Dkt. 10 in civil case.
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
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).
As stated above, the Government contends that Hordichok waived her right to bring the claims alleged in her § 2255 Motion. A review of the Plea Agreement and the plea colloquy supports this contention.
Pursuant to the Plea Agreement, in return for the concessions made by the Government, Hordichok agreed to waive her right to appeal or to seek relief under § 2255 except under certain limited circumstances.*fn2 Plea Agreement ¶ VII, Dkt. 59. More specifically, Hordichok agreed to waive her right to file a § 2255 motion except for one alleging ineffective assistance of counsel based solely on information not known to her at the time sentence was imposed and ...