United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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.
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.
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).
Involuntary Plea (Ground Eight)
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.
Breach of Contract (Ground Eleven)
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. He is entitled to no relief on this
Standing (Grounds Two)
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.
Fraud in the Factum (Ground Ten)
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;