Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 United States of America, 9 Plaintiff, 10 v. 11 Takisha M. Jernagin, 12 Defendant/Movant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-01050-PHX-JAT No. CV 07-01113-PHX-JAT (GEE) ORDER

Movant Takisha M. Jernagin ("Movant"), who is confined in the Women's Federal Prison Camp in Dublin, California, has filed a pro se "Motion Under 28 USC § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." (Doc.# 178.)1 The Court will summarily dismiss the motion. I. Procedural History Movant pleaded guilty to armed bank robbery and aiding and abetting a bank robbery in violation of 18 U.S.C. § 2113(a), (d) and 2. (Doc.# 127.) On December 12, 2005, the Court sentenced Movant to 57 months incarceration followed by a period of supervised release. (Doc.# 127, 128.) Movant did not file an appeal. Movant alleges two claims for relief. First, she alleges that she was not aware at the time of the robbery that her co-defendants were armed. Second, she alleges that it is possible to consider a "point reduction or downward departure for any amount of money less than $10,000." (Doc.# 178 at 4.) In a letter appended to her motion, the Movant implores the

"Doc.#" refers to the docket number of documents filed in the criminal case.
Document 180 Filed 06/22/2007 Page 1 of 6

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Court to consider reducing her sentence in light of her ongoing efforts at rehabilitation. (Id., attach.) II. Summary Dismissal A district court must summarily dismiss a § 2255 application "[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." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Moreover, if there has been a valid waiver of the right to file a federal habeas corpus petition, a court lacks jurisdiction to hear the case. See Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005). III. Movant is Not Entitled to Relief A defendant may file a motion pursuant to § 2255 to claim "the right to be released upon the ground 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. Movant Waived the Right to Collateral Review

Under the terms of her plea agreement, Movant waived the right to appeal or seek collateral review. (Doc.# 128 at 4.) "[S]trict standards" are applied to find a waiver of constitutional rights. United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume waiver from a silent record, and the Court must indulge every reasonable presumption against waiver of fundamental constitutional rights. United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004). Movant's waiver was clear, express, and unequivocal. Plea agreements are contractual in nature, and their plain language will generally be -2Case 2:04-cr-01050-JAT Document 180 Filed 06/22/2007 Page 2 of 6

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enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory right to bring a § 2255 action challenging the length of her sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). The only claims that cannot be waived are claims that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert, 422 F.3d at 871 (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); Pruitt, 32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). Provided that her sentence was consistent with the terms in her plea agreement, Movant expressly agreed to waive (1) "any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack." (Doc.# 128 at 4.) Moreover, Movant expressly acknowledged that "this waiver shall result in the dismissal of any appeal or collateral attack defendant might file challenging his conviction or sentence in this case." (Id.) The plea agreement set forth the maximum possible sentence as 25 years and/or a fine of $250,000. (Id. at 2.) In addition, Movant specifically acknowledged that "any predictions as to the guideline range applicable, that are not contained within this written plea agreement are without force and effect and are null and void." (Id. at 8.) Movant stated that she had -3Case 2:04-cr-01050-JAT Document 180 Filed 06/22/2007 Page 3 of 6

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discussed the terms of her plea agreement with her attorney, that she agreed to the terms and conditions, that she entered into the plea voluntarily and that she was satisfied with her attorney's competence. (Id. at 7-8.) In the factual basis portion of the plea agreement, Movant stated in relevant part that: she traveled to Phoenix with her co-defendants and agreed to serve as a lookout during the bank robbery. Further, she acknowledged that two co-defendants entered the bank displaying firearms and ordered patrons to get on the ground, demanded bank employees put $312,000 into a sack, and fired a gun and threatened bank employees as a show of force. (Id. at 6.) She also acknowledged that she left the vicinity of the bank with her co-defendants, who divided the stolen money with her. (Id.) Movant expressly acknowledged that she would have to swear under oath to the accuracy of these facts. (Id. at 6-7.) Moreover, Movant agreed that: she took, or knowingly and intentionally aided and abetted another in taking, money belonging to the bank; she used, or knowingly and intentionally aided and abetted another in using, force, violence or intimidation; deposits of the bank were insured by the Federal Deposit Corporation; and she intentionally, or knowingly and intentionally aided and abetted another, in making a display of force by using a handgun that reasonably caused the victims to fear bodily injury. (Id. at 5-6.) Movant expressly waived issues regarding the imposition of sentence and expressly waived the right to bring a § 2255 motion. The Court accepted Movant's plea as voluntarily made and Movant does not dispute that she was sentenced in accordance with the terms of the agreement. B. Statute of Limitation

Even if Movant had not validly waived the right to seek collateral review under § 2255, her motion is barred by the applicable statute of limitation. The one-year period of limitation in which to file a § 2255 motion runs from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(1). A judgment of conviction is final when the judgment "has been rendered, the availability of appeal exhausted, and the time for a petition -4Case 2:04-cr-01050-JAT Document 180 Filed 06/22/2007 Page 4 of 6

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elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Because Movant did not seek appellate relief, her conviction became final as of the date of judgment, or December 12, 2005, and the statute of limitation began running. More than one year has elapsed since her conviction became final, therefore, her motion for relief pursuant to § 2255 is time-barred. C. Request for Sentence Reduction

In the letter attached to her Motion, the Movant asks the Court to reduce her sentence in light of her efforts at rehabilitation. A sentence may be modified to the extent permitted by Rule 35 of the Rules of Criminal Procedure. 18 U.S.C. § 3582(b)(2), (c)(1)(B). This rule is very narrowly read and is not meant to permit a court to simply change its mind about the appropriateness of a sentence. United States v. Penna, 319 F.3d 509, 512 (9th Cir. 2003). Rule 35(a) provides that a court may correct a sentence that resulted from arithmetical, technical, or other clear error within 7 days after sentencing. If the sentence is not corrected within 7 days, the district court loses jurisdiction. Penna, 319 F.3d at 512. More than 7 days have elapsed since Movant was sentenced, so the Court lacks jurisdiction to reduce her sentence pursuant to Rule 35(a), even if Movant sought a reduction under Rule 35(a). A sentence may otherwise be reduced under Rule 35(b) for substantial assistance to the government upon motion of the government. Fed. R. Crim. P. 35(b). This ground also does not apply to Movant because the government has not filed any motion for a reduction and Movant is not a proper party to file such motion. Because Movant has not asserted any basis under which the Court possesses jurisdiction to modify Movant's sentence, the Court lacks jurisdiction to grant that relief. Accordingly, Movant's request for reduction of sentence pursuant to Rule 35 will be denied. Conclusion As stated herein, Movant validly waived the right to appeal or to seek collateral review pursuant to § 2255. Further, even if Movant had not validly waived the right to seek collateral review under § 2255, her motion is time-barred. Finally, to the extent that Movant -5Case 2:04-cr-01050-JAT Document 180 Filed 06/22/2007 Page 5 of 6

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seeks a reduction of her sentence, the Court lacks jurisdiction to grant the requested relief. The motion will be denied. IT IS ORDERED: (1) The "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C.

§ 2255)" (doc.# 178) is dismissed. (2) The Clerk of Court must enter a judgment of dismissal of this action and the

accompanying civil action, CV 07-01113-PHX-JAT (GEE). DATED this 21st day of June, 2007.

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