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Verkler v. United States

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

June 7, 2018

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

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner George Verkler's motion to vacate, set aside, or correct his sentence under 28 U.S.C. section 2255 (Dkt. No. 1) and motion for summary judgment (Dkt. No. 10). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Petitioner's motions for the reasons explained herein.

         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.) The Ninth Circuit dismissed Petitioner's direct appeal based on the waiver included in his plea agreement. United States v. Verkler, CR15-0041-JCC, Dkt. No. 17 at 15. Petitioner then filed a second appeal of various post-conviction motions, which the Circuit Court dismissed in part as untimely and denied in part as meritless. Id. at 76 at 2. Petitioner subsequently filed this section 2255 motion, raising nineteen grounds for relief. (Dkt. No. 1.) The Court dismissed fourteen grounds and ordered service and a response to the remaining five. (Dkt. No. 5.)

         II. DISCUSSION

         To state a cognizable section 2255 claim, a petitioner must assert that he or she is in custody in violation of the Constitution or laws of the United States, that the district court lacked jurisdiction, that the sentence exceeded the maximum allowed by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A habeas petitioner bears the burden of showing by a preponderance of the evidence that an error occurred. See Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938); Simmons v. Blodgett, 110 F.3d 39, 41-42 (9th Cir. 1997); United States v. Doriety, No. C16-0924-JCC, Dkt. No. 12 at 5-6 (W.D. Wash. 2016).

         A. Involuntary Plea (Ground Eight)

         The Court will first address Petitioner's contention that his guilty plea was not knowingly and voluntarily made. (Dkt. No. 1 at 14.) Petitioner raised this issue on appeal. (See Dkt. No. 76 at 2.) The Ninth Circuit examined the underlying court records and rejected the claim, finding “no arguable issue as to the . . . voluntariness of the plea.” (Id.) Having received a “full and fair opportunity to litigate [this claim] on direct appeal, ” Petitioner may not use it as a basis for his section 2255 petition. United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000); see also United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (a 2255 petition is not “a chance at a second appeal”). Petitioner is entitled to no relief on this ground.

         B. Breach of Contract (Ground Eleven)

         Petitioner also argues breach of contract. (Dkt. No. 1 at 21.) He alleges his plea agreement is void because he received an excessive sentence for Counts 1 and 3, he was not correctly credited amounts paid and seized toward restitution, and a number of seized items were not returned to him. (Id. at 18-19.) These claims were also raised and denied on direct appeal. United States v. Verkler, No. 16-30001, Dkt. No. 12-1 at 14-15 (9th Cir. May 26, 2016) (raising the same claim); (Dkt. No. 77 at 1) (Ninth Circuit ruling finding the claim “so insubstantial as not to require further argument”). Petitioner may not use this as a basis for his section 2255 petition. Hayes, 231 F.3d at 1139.[1] He is entitled to no relief on this ground.

         C. Standing (Grounds Two)

         Petitioner argues the United States lacked standing to bring charges against him, because he did not steal federal funds. (Dkt. No. 1 at 7.) This claim too was raised and denied on appeal. Verkler, No. 16-30001, Dkt. No. 12-1 at 13; (Dkt. No. 77 at 1). Therefore, it is not a basis for section 2255 relief. Hayes, 231 F.3d at 1139.[2]

         D. Fraud in the Factum (Ground Ten)

         Petitioner claims counsel led him to believe the charges against him for theft of public funds were misdemeanors. (Dkt. No. 1 at 16.) He argues that his resulting felony conviction therefore constitutes fraud. (Id.) Again, Petitioner raises a procedurally-barred issue, as it was previously examined and denied on direct appeal. No. 16-30001, Dkt. No. 12 at 26; ...


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