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Verkler v. United States

United States District Court, W.D. Washington, Seattle

January 29, 2018

GEORGE VERKLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER FOR SERVICE AND ANSWER TO § 2255 PETITION

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner George Verkler's motion under 28 U.S.C. section 2255 to vacate, set aside, or correct his sentence (Dkt. No. 1). The Court, having reviewed Petitioner's motion, hereby DISMISSES Petitioner's grounds one, four, five, six, seven, nine, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, and nineteen and ORDERS service and an answer on remaining grounds.

         I. Background

         On August 4, 2015, this Court sentenced Petitioner George Verkler (“Petitioner”) to 48 months in custody after he pled guilty to two counts of theft of public funds and two counts of aggravated identity theft. (Dkt. No. 1 at 1.) Petitioner appealed his conviction, and the Ninth Circuit denied his appeals pursuant to the waiver of his right to appeal in his plea agreement. United States v. Verkler, CR15-0041-JCC, Dkt. Nos. 17 at 15, 76 at 2. Petitioner subsequently filed the present motion under section 2255, raising nineteen grounds for relief.

         II. Grounds Dismissed

         Section 2255 relief is warranted where a petitioner shows that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). A hearing on a section 2255 motion is not required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Id. § 2255(b). The Court finds that the motion, files, and records of the case conclusively show that Petitioner is entitled to no relief on grounds one, four, five, six, seven, nine, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, and nineteen.

         A. Grounds Waived by Plea Agreement

         In his plea agreement, Petitioner waived “any right to bring a collateral attack against the conviction and sentence, including any restitution order imposed, except as it may relate to the effectiveness of legal representation.” CR15-0044-JCC, Dkt. No. 17 at 15. The Ninth Circuit has upheld the enforceability of a knowing and voluntary waiver of the right to bring a collateral attack for pre-plea constitutional violations. U.S. v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1995). However, such a waiver does not preclude a section 2255 claim for ineffective assistance of counsel or involuntariness of wavier. Id. In addition, a waiver will not bar claims that challenge the state's power to bring petitioner into court or claims that are independent from the question of guilt. See, e.g., Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (raising double jeopardy claim on direct appeal); Journigan v. Duffy, 552 F.2d 283, 288 (9th Cir. 1977) (challenging an unconstitutional statute).

         The Court thus finds that relief based on the following grounds is barred by the terms of Petitioner's plea agreement: five (right to present a defense), six (violation of due process), seven (actual innocence), twelve (speedy trial act violation)[1], thirteen (prosecutorial misconduct), fifteen (failure to give credit for time served)[2], sixteen/seventeen (improper dismissal of appeals).[3] These grounds at DISMISSED.

         A. Grounds Otherwise Dismissed

         Section 2255 claims not waived by plea agreement may be dismissed without a hearing where “allegations, viewed against the record, either fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to warrant summary dismissal.'” Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). On this basis, the Court dismisses the following grounds:

         1. Ground One: The Court Lacked Jurisdiction

         Petitioner asserts the federal courts lacked jurisdiction to hear his case. (Dkt. No. 1 at 4.) This ground for relief appears to rest on Petitioner's misapprehension of federal jurisdiction and the function of the U.S. Attorney's office.[4] These allegations are patently frivolous and warrant summary dismissal. See Marrow, 772 F.2d at 526. Furthermore, failure of counsel to raise the issue of jurisdiction does not constitute ineffective assistance of counsel. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) (failure to raise a meritless legal argument does not constitute ineffective assistance of counsel); (Dkt. No. 1 at 6). This ground is DISMISSED.

         2. Ground Four: Denial of ...


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