United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Jermaine
Hickles's motion to vacate, set aside, or correct his
sentence, under 28 U.S.C. § 2255 (Dkt. No. 1). Having
reviewed Petitioner's motion, the Court hereby DISMISSES
Petitioner's fifth ground for relief and ORDERS service
and an answer on the remaining grounds.
pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1); possession with
intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). See
United States v. Hickles, Case No. CR18-0015-JCC, Dkt.
Nos. 22, 24 (W.D. Wash. 2018). On August 14, 2018, Petitioner
was sentenced to 84 months of imprisonment, followed by three
years of supervised release. Id. at Dkt. No. 35.
directing service and answer to a habeas corpus petition, the
Court must determine whether the motion, the files, and the
records of the case “conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). In his plea agreement, Petitioner “waived
“[a]ny 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.” Hickles, Case No.
CR18-0015-JCC, Dkt. No. 22 at 13. Petitioner raises five
potential grounds for relief: (1) ineffective assistance of
counsel during the plea negotiation process; (2) ineffective
assistance of counsel for failure to properly challenge
charges; (3) ineffective assistance of counsel for failure to
explain the importance of waiving appellate rights; (4)
involuntariness of his plea agreement; and (5) an
unconstitutional sentence imposed under 924(c)(1)(A). (Dkt.
No. 1-1 at 4-13.)
plea agreement waives any right to bring a collateral attack,
“except as it may relate to the effectiveness of legal
representation.” See Hickles, Case No.
CR18-0015-JCC, Dkt. No. 22 at 13. Petitioner's first,
second, and third grounds for relief assert ineffective
assistance of counsel, and the record does not conclusively
show that Petitioner is entitled to no relief. Therefore,
service is proper as to Petitioner's three grounds for
relief based on ineffective assistance of counsel.
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. See United States
v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). However,
such a waiver does not preclude a § 2255 claim for
involuntariness of a waiver in a plea agreement. Id.
In this case, the record does not conclusively show that
Petitioner is entitled to no relief on this ground.
Therefore, service is proper as to Petitioner's fourth
ground for relief.
a petitioner is generally precluded from challenging
sentencing errors on a § 2255 petition,
“[e]xception has frequently been made for
constitutional questions.” See United States v.
Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).
Petitioner claims that his sentence under § 924(c)(1)(A)
for firearm possession in furtherance of a drug trafficking
crime is unconstitutional because the definition of
“crime of violence” in § 924(c)(3)(B) is
unconstitutional under United States v. Davis, 139
S.Ct. 2319 (2019). (Dkt. 1-1 at 13.) But the record shows
that Petitioner pled guilty to firearm possession in
furtherance of a drug trafficking crime, not a crime of
violence. See Hickles, Case No. CR18-0015-JCC, Dkt.
No. 22 at 2. Drug trafficking crime is defined under 28
U.S.C. § 924(c)(2) and is not the same definition as
§ 924(c)(3)(B), which was held unconstitutional in
Davis. See Davis, 139 S.Ct. at 2323-24.
Thus, the record conclusively shows that Petitioner is
entitled to no relief on this ground. Therefore, service on
ground five is improper and this ground is DISMISSED.
the Court hereby ORDERS as follows:
Clerk is DIRECTED to send a copy of this order to Petitioner.
not previously accomplished, electronic posting of this order
and petition shall effect service upon the United States
Attorney of copies of the § 2255 motion and of all
documents in support thereof.
Within 45 days after such service, the United States shall
file and serve an answer in accordance with Rule 5 of the
Rules Governing Section 2255 Cases in United States District
Courts. As part of such answer, the United States should
state its position as to whether an evidentiary hearing is
necessary, whether there is any issue as to abuse or delay
under Rule 9, and whether Petitioner's motion is barred
by the statute of limitations.
the face of the answer, the United States shall note the
answer for consideration by the Court on the fourth Friday
after it is filed, and the Clerk shall note the answer
accordingly. Petitioner may file ...